Johnny Escalante failed to register as a sex offender when he traveled to Texas. The district court determined that his prior Utah conviction for unlawful sexual activity with a minor classified him as a tier II sex offender, and sentenced him within the corresponding Guidelines range. The Fifth Circuit reversed Escalante’s sentence, finding that the district court had deviated from the categorical approach in classifying him as a tier II offender.

The Sexual Offense Registration and Notification Act of 2006 (SORNA) requires sex offenders to update their registration after a change of residence. Failing to do so is a federal crime when the offender travels in interstate commerce. U.S.S.G. 2A3.5 provides three offense levels when a sex offender is found guilty of failing to register. Those levels correspond with the tiers found in 34 U.S.C. 20911. A tier II offender is someone “whose offense. . . is comparable to or more severe than the following offenses, when committed against a minor[:] . . . abusive sexual contact (as described in section 2244 of title 18)[.]”

Escalante had been convicted in Utah in 2010 for unlawful sexual activity with a minor. He was 35 at the time, and the victim was just 14. He traveled to Texas after being released from prison, and failed to update his registration. He was identified during a traffic stop and charged with failing to register. He pleaded guilty and a PSR was ordered.

The PSR concluded that Utah’s crime of unlawful sexual activity with a minor was comparable to abusive sexual contact as described in 18 U.S.C. 2244, and therefore recommended a tier II classification with a Guidelines imprisonment range of 27–33 months. Escalante objected, arguing that the Utah statute “sweeps more broadly than the federal statute” and therefore, under the categorical approach, cannot serve as a predicate for classification as a tier II offender. He pointed out that 18 U.S.C. 2243(c)(1) permits an affirmative defense if the defendant reasonably believed the victim to be over 16, whereas Utah’s statute did not, and that 18 U.S.C. 2243(a)(2) requires the Government to prove a four-year age differential, whereas the Utah statute did not.

The Fifth Circuit, applying the categorical approach, recognized that if the statute of conviction “sweeps more broadly” than the referenced federal offense, the state offense cannot serve as a proper predicate. The Court rejected Escalante’s affirmative-defense argument, holding that the categorical approach considers the elements of the offense only, and not affirmative defenses. The Court considered whether SORNA requires courts to perform a circumstance-specific inquiry to determine whether the victim was a minor when applying the categorical approach for Escalante’s second argument. It answered in the affirmative, holding that the text of SORNA requires a circumstance-specific inquiry into the victim’s age to determine whether the victim was, in fact, a minor at the time of the offense. The Court, however, determined that the categorical approach still applied when looking at an offender-victim age differential. It concluded that because Utah had criminalized sexual contact between an 18-year-old and a 15-year-old and the federal statute does not, the Utah offense “sweeps more broadly” than the comparable federal offense and thus could not serve as a proper predicate for a SORNA tier II sex offender designation.