PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4019

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DWAINE ALLEN COLLINS, a/k/a Dwaine Allen Cline,

Defendant - Appellant.

Appeal from the United States District Court for the Southern 

District of West Virginia, at Parkersburg. Robert C. Chambers, 

Chief District Judge. (6:13-cr-00141-1)

Argued: October 30, 2014 Decided: December 8, 2014

Before WILKINSON, MOTZ, and FLOYD, Circuit Judges.

Affirmed in part; vacated and remanded in part by published 

opinion. Judge Floyd wrote the opinion, in which Judge 

Wilkinson and Judge Motz joined.

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Charleston, West Virginia, for Appellant. Jennifer 

Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

West Virginia, for Appellee. ON BRIEF: Brian J. Kornbrath, 

Acting Federal Public Defender, Lex A. Coleman, Assistant 

Federal Public Defender, Charleston, West Virginia, for 

Appellant. R. Booth Goodwin, II, United States Attorney, OFFICE 

OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for 

Appellee.
2

FLOYD, Circuit Judge:

Dwaine Allen Collins was convicted of knowingly failing to 

register as a sex offender under the Sex Offender Registration 

and Notification Act (SORNA). The district court sentenced 

Collins to 30 months’ imprisonment and ten years of supervised 

release. On this direct appeal, Collins contests his conviction 

primarily on the grounds that the government failed to prove an 

essential element of a SORNA violation: that he knew he had an 

obligation to register.

In support, he points to comments made by a state court 

judge in a separate proceeding, which in Collins’s view suggest 

that his obligation to register had expired. We agree with the 

district court, however, that the state judge appeared to be 

giving advice rather than a binding legal opinion. Moreover, 

there is substantial evidence in the record to support the 

district court’s conclusion that Collins knowingly avoided an 

obligation to register as a sex offender. We thus find 

Collins’s claim unpersuasive and affirm his conviction.

Collins also appeals his sentence. We find his 30-month 

term of imprisonment, which is within the applicable Guidelines 

range, to be reasonable and thus affirm the district court’s 

sentence in that respect. As to the term of supervised release, 

however, the United States Sentencing Commission recently issued 

a clarifying amendment stating that a failure to register under 
3

SORNA is not a “sex offense” for the purposes of the Guidelines. 

Consequently, we vacate the supervised release portion of 

Collins’s sentence and remand for further proceedings.

I.

In 1998, Dwaine Allen Collins pleaded guilty to two counts 

of taking indecent liberties with a child in North Carolina. 

Upon his conviction, both North Carolina and federal law 

required him to register as a sex offender.

After his release from prison in 2001, Collins moved to 

Ohio, where he registered as a sex offender. As part of the 

registration procedures, Collins signed a form, titled

“Explanation of Duties to Register as a Sex Offender,” which 

explained that he was required to register annually for ten 

years and verify his residence annually. Despite signing this 

form, Collins failed to re-register in 2002. Thus a warrant was 

issued in Ohio for his arrest. Before he could be apprehended, 

he moved to Parkersburg, West Virginia, where he remained until 

2011. He did not register his sex offender status in West 

Virginia during that time.

In January 2011, Collins was arrested while attempting to 

steal a television in Ohio. After being released, he was 

detained on the 2002 warrant for failing to update his 

registration. While in custody, Collins signed another form, 
4

titled “Notice of Registration Duties of Sexually Oriented 

Offender or Child-Victim Offender.” J.A. 145. The form listed 

Collins’s expected address as Parkersburg, West Virginia, but 

did not identify the sheriff’s office where Collins was to 

register. The form also stated that: (i) Collins was classified 

as a Tier II sex offender, a more serious category than his 

original Tier I status; and (ii) he was required to register for 

25 years. The 25-year requirement conflicts with his original 

10-year requirement.1

In March 2011, Collins pleaded no contest to the single 

count indictment in Ohio state court charging him with failing 

to verify his address. In the state court proceeding, the judge 

suggested that a recent Ohio Supreme Court case rendered the 

increase from a 10-year registration period to a 25-year 

registration period “void.”2 J.A. 78. The judge further 

suggested that the original ten-year registration requirement 

applied. Id.; see also J.A. 78 (stating that he thought “this 

 1 The district court later found that the Notice of 

Registration form mandating 25 years of registration was 

inaccurate. 

2 Specifically, the state court judge cited State v. Bodyke, 

933 N.E.2d 753 (Ohio 2010). In that case, the Ohio Supreme 

Court held the Ohio Attorney General could not change the 

classification of sex offenders and therefore severed the 

provision giving the Attorney General the power to reclassify 

sex offenders from the Ohio sex offender statute. 
5

period was a ten year period dating from the time he would have 

been released”). Thus the judge sentenced Collins to time 

served for the outstanding 2002 warrant. J.A. 79-80. 

After being released from custody in Ohio, Collins returned 

to West Virginia. He again did not register as a sex offender 

with West Virginia authorities, despite signing forms expressly 

stating that he was required to do so.

In May 2013, Collins was again charged for failing to 

register as a sex offender—this time under federal law (SORNA), 

a violation separate from the one underlying the first 

indictment in Ohio. In the federal proceeding, the parties 

agreed to a bench trial on a single issue: whether Collins had 

knowingly failed to register as a sex offender.

Collins agreed to a bench trial. Collins primarily argued 

that he had not “knowingly” failed to register as a sex offender 

in light of the Ohio state court judge’s comments that his 10 

year registration period had expired. The district court 

rejected this argument. Notwithstanding any requirement to 

register under state law, the district court concluded that 

Collins had a separate obligation to register under federal law—

namely SORNA. The district court found that the knowledge 

element was satisfied as long as Collins knew he was required to 

register “under some scheme”—that is, any state or federal law, 

but not necessarily SORNA specifically. J.A. 147. The district 
6

court also rejected Collins’s reliance on the Ohio state judge’s 

statements, concluding that the judge “did not make a definite 

legal ruling during the sentencing hearing as to whether 

[Collins] was no longer required to register at all” and that 

the judge was merely “stating his opinion.” J.A. 146.

The presentence investigation report (PSR) calculated the 

Guideline range for Collins’s conviction as 30-37 months based 

on a base offense level of 12 and Category VI criminal history. 

The district court granted Collins’s request for a two-level 

reduction (to level 10) for acceptance of responsibility, thus 

reducing the Guideline range to 24-30 months. Emphasizing 

Collins’s long criminal history, the district court imposed a 

30-month sentence, finding that a sentence at the upper limit of 

the Guidelines was “appropriate to protect the community.” J.A. 

180. Although both Collins and the government agreed that a 

five-year supervised release period was appropriate, the 

district court imposed ten years of supervised release.

II.

A.

We first address Collins’s challenge to his SORNA 

conviction. Following a bench trial, this Circuit reviews 

findings of fact for clear error and findings of law de novo. 

United States v. Leftenant, 341 F.3d 338, 342-43 (4th Cir. 
7

2003).3 A guilty verdict must be affirmed if “any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt.” United States v. Poole, 640 F.3d 

114, 121 (4th Cir. 2011) (quoting United States v. Madrigal–

Valadez, 561 F.3d 370, 374 (4th Cir. 2009)). “This standard is 

met when there is substantial evidence in the record, viewed in 

the light most favorable to the government, to support the 

district court’s judgment.” Id. (internal quotation marks 

omitted).

B.

Under SORNA, a “sex offender shall register, and keep the 

registration current, in each jurisdiction where the offender 

resides, where the offender is an employee, and where the 

offender is a student.” 42 U.S.C. § 16913(a). Failure to 

register triggers an array of potential penalties, but only if 

the offender has knowledge of the registration requirement. 18 

U.S.C. § 2250(a)(3) (“Whoever . . . knowingly fails to register 

or update a registration as required by [SORNA] . . . shall be 

fined under this title or imprisoned not more than 10 years, or 

both.”).

 3 Collins’s appeal of his conviction pertains only to the 

sufficiency of the prosecution’s evidence. There is no issue of 

law in this case for knowingly failing to register under SORNA. 
8

The parties do not dispute that Collins was a sex offender 

under federal law, that he was required to register under SORNA,

and that he failed to do so. Appellee Br. at 12; Appellant Br. 

at 13. The only issue regarding his conviction is whether 

Collins knowingly failed to register, as required under 18 

U.S.C. § 2250(a)(3).

In criminal trials, the government can “establish a 

defendant’s guilty knowledge by either of two different means.” 

Poole, 640 F.3d at 121. “The government may show that a 

defendant actually was aware of a particular fact or 

circumstance, or that the defendant knew of a high probability 

that a fact or circumstance existed and deliberately sought to 

avoid confirming that suspicion.” Id.

Here, the government relies on the latter means, arguing

that Collins’s previous failure to register in Ohio and West 

Virginia showed, as the district court found, “his state of mind 

and intention to avoid registration requirements.” J.A. 144. 

In further support of its argument that Collins knew he had a 

duty to register, the government also cites: (i) the fact that 

Collins registered as a sex offender several times in North 

Carolina and Ohio between 2002 and 2011; (ii) Collins’s signed 

notification forms reminding him of his registration 

obligations; (iii) his statements to the police that he disliked 

registering as a sex offender because he had previously been 
9

assaulted after doing so; and (iv) his use of an alias, which 

the government contends he used to avoid being identified as a 

sex offender.

Although Collins disputes much of this evidence, he 

primarily seeks reversal based on the Ohio state judge’s 

statement that he had no further registration requirements. In 

Collins’s view, the state judge assured him that his obligations 

to register as a sex offender had lapsed and therefore he could 

not have knowingly failed to register. Collins believes the 

state judge’s statements override much of the government’s other 

evidence, including his signed registration forms, because 

Collins cannot read or write and needs others’ help to 

understand documents. In contrast, the government argues, and 

the district court found, that the Ohio state judge “was merely 

stating his opinion that the Ohio registration period may have 

lapsed.” J.A. 146. We find no reason to part from the district 

court’s interpretation of the state judge’s comments. The state 

judge appeared to be couching his comments as advice to Collins 

rather than as a binding legal ruling. Pursuant to the 

deferential standard of review for convictions in this Circuit, 

the district court’s interpretation of the state judge’s 

comments was not clear error.

Even if we accepted Collins’s assertion that the state 

judge issued a substantive legal ruling as to his registration 
10

requirements, we would still affirm. Collins argues that the 

state judge’s comments show a form of entrapment by estoppel,

which stands for the proposition that the state’s prosecution of

“someone for innocently acting upon . . . mistaken advice is 

akin to throwing water on a man and arresting him because he’s

wet.” People v. Studifin, 504 N.Y.S.2d 608, 610 (N.Y. Sup. Ct. 

1986). The Supreme Court narrowly defined entrapment by 

estoppel in Cox v. Louisiana, 379 U.S. 559 (1965), and Raley v. 

Ohio, 360 U.S. 423 (1959). Unlike here, the defendants in both 

of those cases relied upon state officials’ prior interpretation 

of state law and then were charged with a violation of state

law. In contrast, here Collins relied on a state official’s 

interpretation of state law, but was later charged with a 

violation of federal law. In other words, Collins effectively 

asks us to extend the reach of entrapment by estoppel to cases 

with two different sovereigns.4 

We have previously held that entrapment by estoppel occurs

only when the same sovereign advises that certain conduct is 

permissible, but later initiates a prosecution based on that 

conduct. In United States v. Etheridge, 932 F.2d 318, 320-21

 4 Collins concedes that entrapment by estoppel does not 

formally apply but urges that then “animating principle behind 

it . . . still applies” here. Appellant’s Br. at 19. Even if 

that were true, his argument is foreclosed by our prior 

precedent, including Etheridge.
11

(4th Cir. 1991), we held that a convicted felon violated federal 

law by possessing two shotguns used for hunting, even though a 

state judge had advised him that he was permitted to possess the 

shotguns for that purpose. The Etheridge court quoted at length 

from an Eleventh Circuit case, United States v. Bruscantini, 761 

F.2d 640, 642 (11th Cir. 1985), which distinguished Cox and 

Raley by finding that when “the government that advises and the 

government that prosecutes are not the same, the entrapment 

problem is different.”

Etheridge controls the outcome in this case: here, as 

there, the defendant was convicted for violating federal law 

despite receiving conflicting advice from a state official about

similar state law. We of course are not free to disregard 

binding precedent. And even if we were, we would reach the same 

result. Entrapment by estoppel is a narrow exception to the 

general principle that ignorance of the law is no excuse, and it 

would be unwise to extend its application here.

Having disposed of Collins’s reliance on the Ohio state 

judge’s comments, it is readily apparent that his conviction 

should be affirmed. Over the years, Collins signed several 

forms acknowledging his obligations to register. J.A. 143, 145. 

Upon his arrest, he also made comments to federal marshals about 

his reluctance to register due to the threats and assault he 

received upon registering. J.A. 101-102. Taken together, these 
12

facts constitute “substantial evidence in the record . . . to 

support the district court’s judgment,” Poole, 640 F.3d at 121

(internal quotation marks omitted), that Collins knew he was 

required to register as a sex offender. Consequently, we 

affirm Collins’s conviction.

III.

Collins also argues that his 30-month sentence is excessive

and should be reduced. When using the Sentencing Guidelines, 

“[t]he courts of appeals review sentencing decisions for 

unreasonableness.” United States v. Booker, 543 U.S. 220, 264 

(2005). The reasonableness of a sentence “is not measured 

simply by whether the sentence falls within the statutory range, 

but by whether the sentence was guided by the Sentencing 

Guidelines and by the provisions of [18 U.S.C.] § 3553(a).”

United States v. Green, 436 F.3d 449, 456 (4th Cir. 2006). In 

this Circuit, the reasonableness inquiry “focuses on whether the 

sentencing court abused its discretion in imposing the chosen 

sentence.” United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 

2007).

After applying a two-level reduction in light of Collins’s

accepting responsibility for his crime, the district court found 

that Collins’s base offense level was 10. After the reduction, 

Collins’s criminal history was determined to be in Category VI, 
13

leading to an advisory guidelines range of 24-30 months. In 

ultimately ordering a 30-month sentence, the district court

found that Collins’s criminal history included “extremely 

serious crimes . . . [that] reflect the type of conduct that 

would make one fear that this defendant is some type of a 

predator.” J.A. 179. The district court went on to conclude 

“that the defendant pretty much stays in trouble, irrespective 

of his illiteracy, other problems.” J.A. 180; see also id.

(noting that Collins was “very prone to breaking the law” and 

that he will “probably commit other offenses after he serves his 

prison term here”). Because the 30-month sentence is within the 

Guidelines range, we find it is entitled to a presumption of 

reasonableness. Rita v. United States, 551 U.S. 338, 347 

(2007); United States v. Wright, 594 F.3d 259, 268 (4th Cir. 

2010).

That is especially true because Collins actually requested

a sentence between 24-30 months in his presentencing memorandum,

thus clearly signaling that he believed such a sentence was 

reasonable. In light of this request, his argument on appeal 

that a 30-month term of imprisonment is excessive rings hollow.

Simply put, the district court’s decision was within the 

applicable Guidelines range, was heavily influenced by the 

§ 3553(a) factors, and was thorough. Accordingly, the sentence 

is affirmed.
14

IV.

A.

Collins also contests the district court’s imposition of a 

ten-year supervised release period. Specifically, he argues 

that the district court used an incorrect Guidelines calculation 

when making that determination. In support, he cites United 

States v. Goodwin, 717 F.3d 511, 520 (7th Cir. 2013), which held 

the correct Guidelines calculation for a SORNA violation was a 

single “point” of five years, rather than five years to life (as 

stated in the PSR here). At oral argument, the government 

agreed with Collins’s position. More importantly, in May 2014, 

the Sentencing Commission published proposed amendments to the 

Sentencing Guidelines that affects Collins’s case. Sentencing 

Guidelines for United States Courts, 79 Fed. Reg. 25,996 

(proposed May 6, 2014). Due to a lack of congressional action, 

those amendments became effective on November 1, 2014. U.S.S.G. 

§ 5D1.2 cmt. nn.1 & 6 (text of amendments).5

In Goodwin, the Court considered whether failure to 

register was a “sex offense” for the purposes of the Guidelines, 

concluding that it was not because it was not “perpetrated 

against a minor” as required by the Guidelines. Goodwin, 717 

 5 The amendments became effective after briefing and oral 

argument in this case.
15

F.3d at 520. Congress enacted SORNA to protect the population 

at large rather than the victim of the underlying crime. See

United States v. W.B.H., 664 F.3d 848, 854 (11th Cir. 2011) 

(“SORNA plainly states that its purpose is to protect society 

. . . from sexual offenders, 42 U.S.C. § 16901 . . . .”). Other 

circuits have adopted the reasoning in Goodwin. United States 

v. Segura, 747 F.3d 323, 329-30 (5th Cir. 2014); United States 

v. Herbert, 428 Fed. App’x 37 (2d Cir. 2011).

The Sentencing Commission amended the Guidelines to 

implement Goodwin’s holding. The Commission may generally enact 

two types of amendments: clarifying and substantive. See

generally United States v. Butner, 277 F.3d 481, 489 (4th Cir.

2002) (explaining how to distinguish clarifying amendments from 

substantive amendments). Clarifying amendments “change[] 

nothing concerning the legal effect of the guidelines, but 

merely clarif[y] what the Commission deems the guidelines to 

have already meant.” United States v. Capers, 61 F.3d 1100, 

1109 (4th Cir. 1995). A substantive amendment, by contrast, 

“has the effect of changing the law in this circuit.” Id. at 

1110.

The amendment does not change the law of this Circuit

because we do not have a published opinion addressing whether 

the failure to register is itself a sex offense. Previous 

unpublished opinions are contradictory. Compare United States 
16

v. Nelson, 400 F. App’x 781, 782 (4th Cir. 2010) (per curiam) 

(Guidelines range is five years to life) with United States v. 

Acklin, 557 F. App’x 237, 240 (4th Cir. 2014) (per curiam)

(remanding for reconsideration in light of DOJ memo endorsing a 

“single point” of five years). We find that this amendment to 

the Guidelines is a clarifying amendment rather than a 

substantive amendment. The amendment resolves an uncertainty 

created by contradictory language in the Guidelines and § 2250 

rather than revising a preexisting rule. 

This Circuit has previously held that “a clarifying 

amendment must be given effect at sentencing and on appeal, even 

when the sentencing court uses an edition of the guidelines 

manual that predated adoption of the amendment.” United States 

v. Goines, 357 F.3d 469, 474 (4th Cir. 2004) (citations 

omitted); U.S.S.G. § 1B1.11(b)(2) (“[I]f a court applies an 

earlier edition of the Guidelines Manual, the court shall 

consider subsequent amendments, to the extent that such 

amendments are clarifying rather than substantive changes.”). 

Accordingly, we must give effect to the amendment here. We 

find that failing to register as a sex offender under SORNA is 

not a “sex offense” for the purposes of the Guidelines.
17

B.

Because the maximum term of imprisonment for failing to 

register under SORNA is ten years under § 2250(a), such a 

failure constitutes a Class C felony. 18 U.S.C. § 3559(a)(3) 

(defining a Class C felony as an offense with a maximum term of 

imprisonment of “less than twenty-five years but ten or more 

years”). The Guidelines recommend a term of supervised release 

between one and three years for Class C felonies. U.S.S.G. 

§ 5D1.2(a)(2). Thus, this entire Guidelines range is below the 

statutory minimum of five years of supervised release. 18 

U.S.C. § 2250(a).

Our sister circuits disagree as to how to resolve the 

situation when a Guidelines range for supervised release is 

below the statutory minimum. In Goodwin, the Seventh Circuit 

relied on a rule developed in another case, Gibbs, to construe 

the Guidelines to recommend a single “point” at the statutory 

minimum: five years. 717 F.3d at 520 (citing United States v. 

Gibbs, 578 F.3d 694, 695 (7th Cir. 2009)). The Gibbs rule holds 

that when the Guidelines range is below the statutory minimum, 

the Guidelines should be read to recommend a ‘single point’ at 

the statutory minimum, rather than a range. Gibbs, 578 F.3d at 

695. The Eighth Circuit in Deans took a different approach in 

which the statutory requirement entirely supplants the 

Guidelines range. United States v. Deans, 590 F.3d 907, 911 (8th 
18

Cir. 2010). Under the Deans rule, the Guidelines are construed 

to recommend the full statutory range irrespective of the lower 

Guidelines range. Id.

The Sentencing Commission adopted the Gibbs rule as part of 

its amendment on sex offenders. Cf. U.S.S.G. § 5D1.2 cmt. n.6.

As noted above, this Circuit has not ruled definitively on this 

issue and has not adopted either the Gibbs rule or the Deans

rule. Consequently, this change is also a clarifying amendment

because it does not change our substantive law. Butner, 277 F.3d 

at 489; Capers, 61 F.3d at 1109. We must give effect in this 

direct appeal to the clarifying amendment adopting the Gibbs

rule on appeal. Goines, 357 F.3d at 474; U.S.S.G. 

§ 1B1.11(b)(2).

C.

This Circuit’s practice is to vacate and remand for 

resentencing when the Sentencing Commission enacts a clarifying 

amendment. See, e.g., Goines, 357 F.3d at 480-81; United States 

v. Ross, 352 F. App’x 771, 773 (4th Cir. 2009) (per curiam). 

Because clarifying amendments simply elucidate existing law 

rather than create new law or modify existing Circuit precedent, 

Collins should benefit from reconsideration of his term of 

supervised release in light of the Sentencing Commission’s 

recent amendment. Although it is possible that the district 
19

court will re-impose ten years of supervised release, this time 

as an upward variance, the importance of the Guidelines’ 

recommended range to sentencing merits vacatur and remand. See

United States v. Turner, 548 F.3d 1094, 1099 (D.C. Cir. 2008) 

(“Practically speaking, applicable Sentencing Guidelines provide 

a starting point or ‘anchor’ for judges and are likely to 

influence the sentences judges impose.”).

V.

For the reasons provided above, we affirm Collins’s 

conviction and his term of imprisonment, and remand for further 

proceedings consistent with this opinion as to his term of 

supervised release.

AFFIRMED IN PART;

VACATED AND REMANDED IN PART