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Decided: February 19, 2016

The Fourth Circuit vacated and remanded the district court’s decision.

In 2003, Defendant, Brian Berry, pled guilty to a sex offense in New Jersey state court and was obligated to register as a sex offender under the federal Sex Offender Registration and Notification Act (“SORNA”). Berry registered in New Jersey, but in 2013 law enforcement discovered Berry had relocated to North Carolina and had subsequently failed to properly register at his new address. Berry pled guilty to failing to register, and at sentencing the district court decided Berry was classified as a tier III sex offender under SORNA based on the conduct underlying his prior sex offense as described in the presentence report. As a result of his tier III designation, the district court calculated Berry’s Guidelines range as thirty-three to forty-one months, and he was sentenced to thirty-three months in prison and five years of supervised release. Berry appealed, arguing against his determination as a tier III sex offender.

The Court discusses two approaches to determining a defendant’s tier classification, both described in United States v. Price. First is the “categorical approach,” which “focusses solely on the relevant offenses’ elements, comparing the elements of the prior offense of conviction to the pertinent federal offense.” A categorical match exists when the elements of the prior offense as the same or narrower than those of the offense listed in the federal statute. The second approach, “the circumstance-specific approach,” focusses on the conduct underlying the defendant’s prior conviction, not the relevant offenses’ elements. In utilizing this approach, the reviewing court should evaluate whether the prior offense involved circumstances that are required under the federal statute. Ultimately, after examining the text of SONRA, the Fourth Circuit reached the same conclusion as the Tenth Circuit did in United States v. White; the language of SONRA instructs the use of a categorical approach, with the exception of considering the actual act of the victim.

Consequently, after applying the categorical approach prescribed by SONRA, the Court agreed with Berry that the district court erred in classifying him as a tier III sex offender. The statute under which Berry had originally been convicted, N.J. Stat. Ann. § 2C:24-4(a) (2002), child endangerment could be based on either “sexual conduct which would impair or debauch the morals of [a] child” or “harm that would make [a] child . . . abused or neglected.” The pertinent federal offense requires actual or physical contact. However, the New Jersey Supreme Court has previously made clear that no such contact is required for conviction under the child endangerment statute discussed here, making it a broader statute than the federal statute. Consequently, there is no categorical match, and Berry cannot be properly classified as a tier III offender.

Accordingly, the Court vacated and remanded the district court’s sentencing.

Full Opinion

Charlotte Harrell