REVISED OCTOBER 8, 2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-11293

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

NICHOLAS W. SCHOFIELD, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before KING, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:

Nicholas W. Schofield pleaded guilty to one count of attempted transfer 

of obscene material to a minor, and the district court required him, as part of 

his sentence, to register as a sex offender after his release from prison.

Schofield appeals the registration requirement. For the following reasons, we 

AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2013, Nicholas W. Schofield, who was twenty-four at the 

time, began sending text messages to a fifteen-year-old girl in San Angelo, 

Texas. Schofield identified himself as an eighteen-year-old mechanic named 

United States Court of Appeals

Fifth Circuit

FILED

September 23, 2015

Lyle W. Cayce

Clerk

 Case: 14-11293 Document: 00513225476 Page: 1 Date Filed: 10/08/2015
No. 14-11293

2

“Nick,” and he continued to converse with the girl via text messages through 

February 2014. At that time, an undercover federal agent assumed the girl’s 

side of the conversation, and Schofield continued the conversation with the 

agent through April 2014. Believing he was still communicating with the girl, 

Schofield sent the agent images of his erect penis, videos of himself and others 

masturbating, links to pornographic websites, and text messages describing 

himself masturbating. Schofield later admitted to sending eight pictures of his 

penis, three videos of himself masturbating, and messages describing himself 

masturbating and instructing the girl how to masturbate. Schofield also 

admitted to soliciting and receiving nude images of the girl. 

On May 14, 2014, a grand jury indicted Schofield on one count of transfer 

of obscene material to a minor and four counts of attempted transfer of obscene 

material to a minor, in violation of 18 U.S.C. § 1470.1 Pursuant to a written 

plea agreement, Schofield pleaded guilty to one count of attempted transfer of 

obscene material to a minor—specifically, his attempted transfer via text 

message of a video of an adult male masturbating. The remaining counts were 

dismissed at sentencing. The district court sentenced Schofield to twenty-four 

months imprisonment and ordered him to register as a sex offender under the 

Sex Offender Registration and Notification Act (SORNA). 

Prior to and at sentencing, Schofield objected to the district court’s 

requirement that he register as a sex offender under SORNA, arguing that the 

crime of attempted transfer of obscene material to a minor was not a sex 

 

1 The statute provides that:

Whoever, using the mail or any facility or means of interstate or foreign 

commerce, knowingly transfers obscene matter to another individual who has 

not attained the age of 16 years, knowing that such other individual has not 

attained the age of 16 years, or attempts to do so, shall be fined under this title, 

imprisoned not more than 10 years, or both. 

18 U.S.C. § 1470.

 Case: 14-11293 Document: 00513225476 Page: 2 Date Filed: 10/08/2015
No. 14-11293

3

offense within the meaning of SORNA and therefore did not require 

registration. Schofield contended that, because his offense is neither an 

enumerated federal offense nor a “specified offense against a minor” under 

42 U.S.C. § 16911(5)(A), it is not a sex offense and therefore he is not required

to register as a sex offender under SORNA. Schofield also argued that 

SORNA’s definition of “sex offense” under 42 U.S.C. § 16911(5)(A) and (7)(I) is 

unconstitutionally vague. The district court overruled Schofield’s objections

and required him to register under SORNA upon release from prison. While 

Schofield waived the right to appeal his conviction as part of his plea 

agreement, he reserved the right to appeal the requirement to register as a sex 

offender. Schofield exercised that right and timely appealed. 

II. STANDARD OF REVIEW

The Government argues that this court’s review is limited to plain error 

because Schofield did not object after the district court pronounced his 

sentence. Schofield apparently concedes that plain error is the proper 

standard of review. However, the court, not the parties, must determine the 

appropriate standard of review. United States v. Torres-Perez, 777 F.3d 764, 

766 (5th Cir. 2015); see also United States v. Vontsteen, 950 F.2d 1086, 1091 

(5th Cir. 1992) (en banc) (“[N]o party has the power to control our standard of 

review.”). Schofield objected both to the presentence report and at his 

sentencing, raising the same arguments in the district court as he now raises 

on appeal. Although Schofield did not renew his objection to SORNA 

registration after the district court imposed his sentence, his earlier objections 

sufficiently preserved the issues he now raises in this court. Based on 

Schofield’s earlier objections, the district court was aware of his arguments 

concerning why SORNA registration was not required. Therefore, “the 

purposes of the preservation requirement were met in th[is] case[]—namely, 

the [defendant] ‘raise[d] a claim of error with the district court in such a 

 Case: 14-11293 Document: 00513225476 Page: 3 Date Filed: 10/08/2015
No. 14-11293

4

manner so that the district court may [have] correct[ed] itself and thus, 

obviate[d] the need for [this court’s] review.’” Torres-Perez, 777 F.3d at 767 

(quoting United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 

2009)). Because Schofield preserved the issues he now raises in this court and 

because he only challenges the district court’s legal conclusions (not its factual 

findings), we review whether he is required to register under SORNA de novo.

United States v. Gonzalez-Medina, 757 F.3d 425, 427 (5th Cir. 2014), cert. 

denied, 135 S. Ct. 1529 (2015); United States v. Morgan, 311 F.3d 611, 613 (5th 

Cir. 2002) (“We review the district court's legal conclusions, however, de 

novo.”). 

III. DISCUSSION

SORNA, 42 U.S.C. §§ 16901–16962, establishes a national sex offender 

registry “to protect the public from sex offenders and offenders against 

children.” 42 U.S.C. § 16901. A sex offender must “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). SORNA defines a “sex offender” as a person “who was convicted of 

a sex offense.” 42 U.S.C. § 16911(1). Excluding exceptions not relevant here, 

SORNA defines “sex offense” as:

(i) a criminal offense that has an element involving a 

sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a 

minor;

(iii) a Federal offense (including an offense prosecuted 

under section 1152 or 1153 of Title 18) under section 

1591, or chapter 109A, 110 (other than section 2257, 

2257A, or 2258), or 117, of Title 18;

(iv) a military offense specified by the Secretary of Defense 

under section 115(a)(8)(C)(i) of Public Law 105-119 (10 

U.S.C. 951 note); or

(v) an attempt or conspiracy to commit an offense described 

in clauses (i) through (iv).

 Case: 14-11293 Document: 00513225476 Page: 4 Date Filed: 10/08/2015
No. 14-11293

5

42 U.S.C. § 16911(5)(A). Schofield’s criminal offense did not involve sexual 

contact and was not a military offense, making subsections (i) and (iv) 

inapplicable here. Additionally, subsection (iii) does not include 18 U.S.C. 

§ 1470, so Schofield’s offense is not a sex offense under this subsection. 

Therefore, Schofield must register as a sex offender only if he attempted to 

commit an offense under subsection (v) that is “described in” subsection (ii) as 

“a criminal offense that is a specified offense against a minor.” 42 U.S.C.

§ 16911(5)(A)(ii), (v). 

SORNA defines “criminal offense” as “a State, local, tribal, foreign, or 

military offense . . . or other criminal offense.” 42 U.S.C. § 16911(6). SORNA 

then defines “a specified offense against a minor” as 

an offense against a minor that involves any of the following: 

(A) An offense (unless committed by a parent or guardian) 

involving kidnapping.

(B) An offense (unless committed by a parent or guardian) 

involving false imprisonment.

(C) Solicitation to engage in sexual conduct.

(D) Use in a sexual performance.

(E) Solicitation to practice prostitution.

(F) Video voyeurism as described in section 1801 of Title 18.

(G) Possession, production, or distribution of child 

pornography.

(H) Criminal sexual conduct involving a minor, or the use of 

the Internet to facilitate or attempt such conduct.

(I) Any conduct that by its nature is a sex offense against a 

minor.

42 U.S.C. § 16911(7) (emphasis added). Subsection (I), the “SORNA residual 

clause,” is the relevant provision here since no other provision could encompass 

Schofield’s offense. Thus, for Schofield’s offense to constitute a sex offense, it

must be a “criminal offense” that involves “any conduct that by its nature is a 

sex offense against a minor.” 42 U.S.C. § 16911(5)(A)(ii), (7)(I). Our analysis 

 Case: 14-11293 Document: 00513225476 Page: 5 Date Filed: 10/08/2015
No. 14-11293

6

of whether Schofield’s attempted transfer of obscene material to a minor 

constitutes a sex offense proceeds in three parts. First, we consider whether a 

violation of 18 U.S.C. § 1470 can qualify as a sex offense under SORNA when

it is not listed among the federal offenses SORNA defines as sex offenses. 

Because we conclude that it can qualify as a sex offense, we next consider 

whether Schofield’s offense is a “specified offense against a minor” under the

SORNA residual clause. Finally, we address whether the SORNA residual 

clause is ambiguous or unconstitutionally vague. We conclude that because 

the attempted transfer of obscene material to a minor is a “specified offense 

against a minor” and because SORNA is neither ambiguous nor vague, 

Schofield’s offense is a sex offense, requiring SORNA registration.

A. Schofield’s Offense Can Qualify as a Sex Offense Under SORNA

Although SORNA lists a number of federal offenses that qualify as sex 

offenses, Schofield’s offense—a violation of 18 U.S.C. § 1470—is not among 

them. Therefore, we first determine whether the attempted transfer of obscene 

material to a minor can qualify as a sex offense under SORNA. Because it is 

not an enumerated federal offense under 42 U.S.C. § 16911(5)(A)(iii), a 

violation of 18 U.S.C. § 1470 can only qualify as a sex offense if it is “a criminal 

offense that is a specified offense against a minor” under 42 U.S.C. 

§ 16911(5)(A)(ii). Schofield argues that because subsection (iii) does not 

include 18 U.S.C. § 1470, Congress intended to exclude this offense as one of 

the federal offenses that qualify as sex offenses under SORNA. Schofield 

further argues that because Congress excluded 18 U.S.C. § 1470 from

subsection (iii), this offense cannot qualify as a sex offense under subsection 

(ii), as this would extend the statute to offenses beyond those Congress 

intended to include. While this court has never confronted whether a violation 

of a federal statute not listed in subsection (iii) can nevertheless qualify as a 

 Case: 14-11293 Document: 00513225476 Page: 6 Date Filed: 10/08/2015
No. 14-11293

7

sex offense, the Eleventh Circuit’s opinion in United States v. Dodge, 597 F.3d 

1347 (11th Cir. 2010) (en banc), is instructive. 

In Dodge, the defendant violated the same federal statute as Schofield 

and argued, similar to Schofield, that because 18 U.S.C. § 1470 was not one of 

the federal offenses listed under 42 U.S.C. § 16911(5)(A)(iii), he could not be 

required to register as a sex offender under either subsection (ii) or (iii). Id. at 

1351–52. After examining SORNA’s plain language, structure, legislative 

history, and purpose, the court rejected the defendant’s argument and held 

that a violation of 18 U.S.C. § 1470 could fall within subsection (ii). Id. at 1352. 

The court explained that “[t]aken as a whole, the statute does not suggest an 

intent to exclude certain offenses but rather to expand the scope of offenses 

that meet the statutory criteria” and that “[t]o exclude entirely the obscenity 

statutes from SORNA’s reach would be inconsistent with the broad purpose 

and scope of SORNA . . . .” Id. The court went on to hold that “[n]othing in the 

plain language of 42 U.S.C. § 16911(5)(A)(iii), when read together with the rest 

of the statute, prohibits an unenumerated federal offense such as 18 U.S.C. 

§ 1470 from qualifying as a ‘specified offense against a minor’ [under subsection 

(ii)].”2 Id. at 1353. We agree with the Eleventh Circuit. Additionally, we have 

previously explained that “SORNA's language confirms ‘that Congress cast a 

wide net to ensnare as many offenses against children as possible.’” GonzalezMedina, 757 F.3d at 431 (quoting Dodge, 597 F.3d at 1355). Excluding a 

federal statute not explicitly enumerated in 42 U.S.C. § 16911(5)(A)(iii) is not

consistent with “cast[ing] a wide net.” Id. Accordingly, we conclude that a 

violation of 18 U.S.C. § 1470 can qualify as a sex offense under subsection (ii). 

 

2 The court also explained that “[i]f Congress intended that 42 U.S.C. § 16911(5)(A)(iii) 

represent a closed universe of federal crimes requiring SORNA registration, Congress would 

not have listed another specific federal crime in defining ‘specified offense against a minor’

[under § 16911(5)(A)(ii)].” Dodge, 597 F.3d at 1353.

 Case: 14-11293 Document: 00513225476 Page: 7 Date Filed: 10/08/2015
No. 14-11293

8

B. Schofield’s Offense Falls Within the SORNA Residual Clause

We now consider whether Schofield’s attempted transfer of obscene 

material to a minor constitutes a “specified offense against a minor” under 

subsection (ii). To do so, we look to § 16911(7), which includes a list of 

enumerated offenses and specific conduct that constitute “specified offense[s] 

as a minor.” However, because Schofield’s offense and conduct toward a 

fifteen-year-old girl do not fit squarely within any listed offenses or conduct, 

our inquiry focuses on whether Schofield’s offense involves “[a]ny conduct that 

by its nature is a sex offense against a minor,” 42 U.S.C. § 16911(7)(I), under 

the SORNA residual clause. The Supreme Court has announced three 

separate analytical frameworks that focus courts’ inquiries and control what 

courts may consider when deciding whether a defendant’s offense qualifies for 

a sentencing enhancement under a separate statutory provision, such as the 

SORNA residual clause. See United States v. Price, 777 F.3d 700, 704–05 (4th 

Cir. 2015), cert. denied, 135 S. Ct. 2911 (2015). Two of those frameworks are 

relevant here: the categorical and non-categorical approaches.3

First, when applying the categorical approach, courts “compare the 

elements of the statute forming the basis of the defendant’s conviction with the 

elements of the ‘generic’ crime—i.e., the offense as commonly understood” that 

triggers the sentencing enhancement. Descamps v. United States, 133 S. Ct. 

2276, 2281 (2013). “If the [offense of conviction] has the same elements as the 

‘generic’ . . . crime [in the sentencing enhancement], then the prior conviction 

can serve as [the] predicate; so too if the statute defines the crime more 

 

3 The third approach, the modified categorical approach, is not relevant to this case 

and neither party urges us to apply it. We note that some courts refer to the non-categorical 

approach as the circumstance-specific approach. E.g., Price, 777 F.3d at 705.

 Case: 14-11293 Document: 00513225476 Page: 8 Date Filed: 10/08/2015
No. 14-11293

9

narrowly, because anyone convicted under that law is ‘necessarily . . . guilty of 

all the [generic crime’s] elements.’” Id. at 2283 (last alternation in original) 

(quoting Taylor v. United States, 495 U.S. 575, 599 (1990)). Second, courts

applying the non-categorical approach focus “on the facts—not the elements—

relating to the prior conviction.” Price, 777 F.3d at 705. “In utilizing the [noncategorical] approach, the reviewing court may consider reliable evidence 

concerning whether the prior offense involved conduct or circumstances that 

are required by the [sentencing] statute.” Id.

Schofield urges this court to apply the categorical approach to determine 

whether his conduct falls within the SORNA residual clause and thus within 

42 U.S.C. § 16911(5)(A)(ii), while the Government argues that the noncategorical approach is appropriate here. Schofield argues that when a statute 

uses the term “convicted,” as SORNA does in 42 U.S.C. § 16911(1), the 

Supreme Court has directed lower courts to apply the categorical approach. 

See Taylor, 495 U.S. at 588–89 (approving the use of the categorical approach 

when the defendant had been convicted of burglary). He further argues that 

the SORNA residual clause, when read in the context of the overall statute,

provides an ambiguous, circular, and vague definition of “sex offense.”

Schofield maintains that in the face of this ambiguity, courts have an 

obligation to apply the categorical approach and find that conduct does not 

constitute a sex offense if the elements of the offense do not warrant it.4

Finally, Schofield argues that, although the SORNA residual clause was meant 

to capture as many offenses against children as possible as sex offenses, this 

does not require or direct courts to employ the non-categorical approach.

 

4 Schofield also argues that the ambiguity in SORNA rises to the level of 

unconstitutional vagueness. We address this issue below. 

 Case: 14-11293 Document: 00513225476 Page: 9 Date Filed: 10/08/2015
No. 14-11293

10

The Government contends that the non-categorical approach applies 

here because the SORNA residual clause makes the conduct of the defendant, 

not the elements of his offense, the focus of the inquiry. This is reinforced by 

the fact that the residual clause requires an inquiry into the “nature” of the 

conduct. Because the focus of the residual clause inquiry is conduct, and not 

whether the defendant was convicted of a particular crime, the Government 

argues that the non-categorical approach applies. Price, 777 F.3d at 705. The 

Government points to three separate cases where courts applied the noncategorical approach to interpret the SORNA residual clause. Price, 777 F.3d 

at 709–10 (applying the non-categorical approach to the SORNA residual 

clause when the defendant was convicted of assault and battery of a high and 

aggravated nature); Dodge, 597 F.3d at 1353–56 (applying the non-categorical 

approach to the SORNA residual clause when the defendant was convicted of 

a violation of 18 U.S.C. § 1470 and finding that the defendant committed a sex 

offense); United States v. Mi Kyung Byun, 539 F.3d 982, 990–93 (9th Cir. 2008)

(applying the non-categorical approach to the SORNA residual clause to 

determine whether the victim was a minor). The Government also notes that 

while this court has never applied the non-categorical approach to the SORNA 

residual clause, it has applied that approach to a different provision of SORNA.

See Gonzalez-Medina, 757 F.3d at 429–32 (“[T]he language, structure, and 

broad purpose of SORNA all indicate that Congress intended a non-categorical 

approach to the age-differential determination in [42 U.S.C. § 16911(5)(C)].”).

In that case, we also examined Supreme Court precedent and concluded that,

contrary to Schofield’s contention that the term “convicted” requires a 

categorical approach, “[t]he use of the term ‘convicted’ . . . is not always 

determinative.” Id. at 429.

While circuit precedent and this court’s prior decision in GonzalezMedina tend to favor the application of the non-categorical approach, we need 

 Case: 14-11293 Document: 00513225476 Page: 10 Date Filed: 10/08/2015
No. 14-11293

11

not decide which approach applies here because Schofield’s offense is a sex 

offense under both the non-categorical and categorical approaches. We begin 

with the non-categorical approach. Consistent with the “broad discretion [of 

courts] to determine what conduct is ‘by its nature’ a sex offense [under 

SORNA],” Dodge, 597 F.3d at 1355, we find that Schofield’s conduct in 

attempting to send a video of an adult male masturbating to a fifteen-year-old 

girl falls within the SORNA residual clause. As the court in Dodge noted, “[t]he 

key is conduct that contains a ‘sexual component’ toward a minor,” and “judges 

do not need a statute to spell out every instance of conduct that is a sexual 

offense against a minor.” Id. Schofield’s sending a video of an adult male 

masturbating clearly involves engaging with a fifteen-year-old girl on a sexual 

level, so his conduct includes a sufficiently “sexual component toward a minor” 

to fall within the SORNA residual clause. Id.

When applying the non-categorical approach to the SORNA residual 

clause, previous courts have considered the similarity between the conduct 

underlying the defendant’s offense and conduct that clearly requires 

registration under SORNA. Dodge, 597 F.3d at 1356; Mi Kyung Byun, 539 

F.3d at 989–90. We observe that there is little difference between Schofield’s 

conduct as charged under 18 U.S.C. § 1470 and conduct that obviously requires 

registration. For example, 18 U.S.C. § 2252B(b) criminalizes the use of a 

“misleading domain name on the Internet with the intent to deceive a minor 

into viewing material that is harmful to minors.”5 Under this statute, which 

is one of the enumerated federal offenses constituting a sex crime under 

42 U.S.C. § 16911(5)(A)(iii), depictions of acts of masturbation are included in 

the definition of “material that is harmful to minors.” Thus, if Schofield had 

 

5 The Eleventh Circuit also observed that there was little difference between the 

defendant’s conduct in Dodge and conduct that “would undoubtedly be registerable under 

18 U.S.C. § 2252B(b).” Dodge, 597 F.3d at 1355–56.

 Case: 14-11293 Document: 00513225476 Page: 11 Date Filed: 10/08/2015
No. 14-11293

12

attempted to deceive a fifteen-year-old girl into viewing the images he 

transmitted, he certainly would have been required to register under SORNA. 

As the Dodge court explained, “[i]t would be a bizarre result not to compel his 

registration simply because he is a truthful predator.” Dodge, 597 F.3d at 

1356. 

As with the non-categorical approach, Schofield’s offense also falls within 

the SORNA residual clause under the categorical approach, which requires us 

to compare the elements of Schofield’s offense of conviction and the elements 

of the offense requiring SORNA registration. Under a categorical approach to 

“[a]ny conduct that by its nature is a sex offense against a minor,” 42 U.S.C. 

§ 16911(7)(I), we must determine whether a defendant’s offense of conviction 

includes two elements: (1) the victim is a minor and (2) the conduct is sexual 

in nature. Section 1470 requires that (1) the victim be less than sixteen years 

old, i.e., a minor, and (2) the material transferred be “obscene.” 18 U.S.C. 

§ 1470. The offense of conviction clearly includes the first element of the 

SORNA residual clause—that the victim be a minor. The transfer of obscene 

material to a minor also includes the second element—that the conduct be 

sexual in nature—as the Supreme Court has defined obscenity in exclusively 

sexual terms. See Miller v. California, 413 U.S. 15, 24 (1973) (“As a result, we 

now confine the permissible scope of such regulation [of obscene materials] to 

works which depict or describe sexual conduct.”). Because Schofield’s offense 

of conviction includes both elements of the SORNA residual clause, his offense 

is a sex offense under the categorical approach. 

C. The SORNA Residual Clause Is Neither Ambiguous, Nor Vague

Because Congress enacted SORNA with the intent to “ensnare as many 

offenses against children as possible” as sexual offenses, Gonzalez-Medina, 757 

F.3d at 431 (quoting Dodge, 597 F.3d at 1355), the statute necessarily includes 

multiple parts to the definition of “sex offense.” Schofield argues that defining 

 Case: 14-11293 Document: 00513225476 Page: 12 Date Filed: 10/08/2015
No. 14-11293

13

a sex offense through the residual clause results in an ambiguous and

unconstitutionally vague definition because reading (5)(A)(ii) and (7)(I)

together defines a “sex offense” as “an offense against a minor that involves . . . 

[a]ny conduct that by its nature is a sex offense against a minor.” 42 U.S.C. 

§ 16911(5)(A)(ii), (7)(I). Schofield points to two district court cases that found 

ambiguity in the SORNA residual clause because of this “circular” definition.

United States v. Baptiste, 34 F. Supp. 3d 662, 677 (W.D. Tex. 2014); see also

United States v. Piper, No. 1:12-cr-41-jgm-1, 2013 WL 4052897, at *9 (D. Vt. 

Aug. 12, 2013). Schofield also argues that because SORNA indicates the use 

of the categorical approach for some subsections but the non-categorical 

approach for others, it is unconstitutionally vague. Based on what Schofield 

describes as a circular, ambiguous, and vague definition, he argues that (1) the 

statute’s ambiguity requires this court to defer to the regulations promulgated 

by the Department of Justice interpreting and applying SORNA (the “SMART 

Guidelines”), (2) this court should apply the categorical approach instead of the 

non-categorical approach, and (3) the SORNA residual clause is 

unconstitutionally vague. 

In claiming that the residual clause is circular or ambiguous, Schofield 

misreads the statute. As the Government points out, “sex offense” as used in 

subsections 16911(1) and (5) is a term of art, to be defined later in the statute. 

Subsection 16911(7)(I) provides part of that definition and in doing so uses the 

term “sex offense” in its ordinary way, as a catch-all, to expand the universe of 

crimes encompassed by the statute, and its meaning is refined by the examples 

that surround it in the statute. The term “sex offense,” when used in its 

ordinary way, is not ambiguous or vague even if used as a catch-all. The “key” 

according to the Dodge court is whether the offense involves a “sexual 

component,” Dodge, 597 F.3d at 1355, and requiring courts and defendants to 

determine whether an offense involves a “sexual component” does not render 

 Case: 14-11293 Document: 00513225476 Page: 13 Date Filed: 10/08/2015
No. 14-11293

14

the definition of “sex offense” ambiguous or vague. Indeed, Congress intended 

to expand the universe of offenses constituting sex offenses, and including an 

ordinary term to capture offenses not otherwise specified is consistent with 

that intent. See id. (“Congress's stated purpose was to capture a wider range 

of conduct in its definition of a ‘sex offense.’”). 

Because we do not find the SORNA residual clause circular or 

ambiguous, we take none of the actions Schofield requests. First given the 

absence of ambiguity in the statute, we need not address whether deference to 

the SMART Guidelines under Chevron, U.S.A., Inc. v. Natural Resources 

Defense Council, 467 U.S. 837 (1984), is required. See Price, 777 F.3d at 709 

n.9 (“We need not accord Chevron deference to [the SMART] Guidelines.”).

Second, Schofield’s offense constitutes a sex offense under both the categorical 

and non-categorical approaches, so we need not consider which approach is 

more appropriate. Third, given that the residual clause is not ambiguous, it 

certainly does not rise to the level of unconstitutional vagueness, and we turn 

to recent Supreme Court guidance to confirm this.

The Supreme Court recently held that the residual clause in the Armed 

Career Criminals Act (ACCA) was unconstitutionally vague because it 

essentially required potential defendants to guess what “ordinary” instances 

of several crimes involved and “how much risk it takes for a crime to qualify as 

a violent felony.” Johnson v. United States, 135 S. Ct. 2551, 2557–58 (2015). 

The Court explained that instead of deciding whether a defendant’s conduct 

fell within the ACCA residual clause, courts were required, under the ACCA,

to imagine the kind of conduct that a crime involves in the “ordinary case” and 

judge whether that abstraction involved a serious potential risk of physical 

injury. Id. Based on the Court’s reasoning in Johnson, we conclude that the 

SORNA residual clause is not unconstitutionally vague whether applied noncategorically or categorically. Under the non-categorical approach to the 

 Case: 14-11293 Document: 00513225476 Page: 14 Date Filed: 10/08/2015
No. 14-11293

15

residual clause, we apply a qualitative standard—“[a]ny conduct that by its 

nature is a sex offense against a minor”—to the facts of an individual 

defendant’s case. The Court in Johnson noted that “laws [which] require 

gauging the riskiness of conduct in which an individual defendant engages on 

a particular occasion,” like the SORNA residual clause, were distinguishable 

from the law it declared unconstitutionally vague. Id. at 2561. Similarly, the 

application of the categorical approach to the SORNA residual clause does not 

suffer from the same problems as the application of this approach to the ACCA 

residual clause. First, while the Court in Johnson found that the crimes listed 

prior to the ACCA residual clause were dissimilar, Id. at 2558, the crimes 

preceding the SORNA residual clause, which provide examples of “specified 

offense[s] against minor[s],” are much less divergent. For example, video 

voyeurism and child pornography are much more similar than burglary, arson, 

and extortion. Compare 42 U.S.C. § 16911(7)(F)–(G), with 18 U.S.C. 

§ 924(e)(2)(B)(ii). Second, the Court in Johnson, 135 S. Ct. at 2558, found 

“repeated attempts and repeated failures” on the part of the Supreme Court 

and the courts of appeals “to craft a principled and objective standard out of 

the [ACCA] residual clause.” Id. No such failures are apparent with respect to 

the SORNA residual clause, see, e.g., Dodge, 597 F.3d at 1354–56 (applying the 

SORNA residual clause without noting any difficulty in crafting an appropriate 

standard). 

Because the SORNA residual clause is neither ambiguous nor vague, we 

may apply its plain language to Schofield’s offense. A violation of 18 U.S.C. 

§ 1470 can qualify as a sex offense under SORNA. Applying either the noncategorical or categorical approach to Schofield’s attempted transfer of obscene 

material to a minor, his offense of conviction falls within the SORNA residual 

clause, and he must therefore register as a sex offender. 

IV. CONCLUSION

 Case: 14-11293 Document: 00513225476 Page: 15 Date Filed: 10/08/2015
No. 14-11293

16

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

 Case: 14-11293 Document: 00513225476 Page: 16 Date Filed: 10/08/2015