United States District Court, N.D. Alabama, Northeastern Division
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case, the court is asked to resolve a dispute about the
meaning of a federal statutory term and compare certain
anatomical terms which Congress and the Tennessee Legislature
have used to describe people's private parts. Defendant
Nathan Vineyard contends he was not required to register as a
sex offender because the Tennessee sexual battery statute he
was convicted under in 2012 contained a categorically broader
definition of “sexual contact” than that provided
by the Sex Offender Registration and Notification Act
(“SORNA”). To assess his argument, the court must
examine the provisions of two statutes and look to the
language of anatomy.
matter is before the court on Defendant's Motion to
Dismiss Indictment, or in the Alternative, Motion in Limine
to Exclude Evidence of Conviction under Tenn. Code §
39-13-505(a)(3). (Doc. # 11). The Motion (Doc. # 11) has been
fully briefed. (Docs. # 11, 12, 14). On November 29, 2017,
the Government filed a Supplement to Response in Opposition
to Defendant's Motion to Dismiss, to which Defendant
replied on December 1, 2017. (Docs. # 15, 17). For the
reasons explained below, the Motion (Doc. # 11) is due to be
March 2012, Defendant Nathan Richard Vineyard
(“Defendant” or “Vineyard”) was
charged with rape and false imprisonment in Campbell County,
Tennessee. (Doc. # 12 at p. 2). On May 7, 2012, Vineyard
pleaded guilty to sexual battery in violation of Tenn. Code
§ 39-13-505 and aggravated assault in violation of Tenn.
Code § 39-13-102. (Doc. # 15-2 at p. 4). Vineyard was
sentenced to a total effective sentence of eight years
imprisonment. (Doc. # 12 at p. 2). On September 5, 2017, a
grand jury charged Vineyard with failing to register as a sex
offender under SORNA, 34 U.S.C. § 20911, et
seq., in violation of 18 U.S.C. § 2250(a). (Doc. #
1). According to the Indictment, between July 8, 2017 and
August 9, 2017, Vineyard was required to register under
SORNA, traveled in interstate commerce, and knowingly failed
to register and update his registration as required by SORNA.
November 3, 2017, Defendant moved to dismiss his indictment,
arguing that his conviction for Tennessee sexual battery is
not a “sex offense” under 34 U.S.C. §
20911(5)(A) and, therefore, he is not required to register as
a sex offender under SORNA. (Doc. # 11). The court evaluates
the merits of Defendant's arguments, in turn.
Law and Discussion
SORNA, a sex offender must comply with certain registration
requirements, and failure to do so is a criminal offense.
See 34 U.S.C. § 20913; 18 U.S.C. §
2250(a). A “sex offender” is “an individual
who was convicted of a sex offense.” 34 U.S.C. §
20911(1). A “sex offense” includes “a
criminal offense that has an element involving a sexual act
or sexual contact with another.” Id.
at § 20911(5)(A)(i) (emphasis added).
The Categorical Approach Applies Here
SORNA requires courts to compare a defendant's prior
conviction to criteria set forth in a federal statute, the
court must first determine whether to consider the prior
conviction under the categorical, modified categorical, or
circumstance-specific approach. See, e.g.,
United States v. Berry, 814 F.3d 192, 195 (4th Cir.
2016); United States v. White, 782 F.3d 1118,
1130-31 (10th Cir. 2015). Under the categorical approach, the
court examines only the elements of the crime of conviction
and does not consider the facts underlying the conviction.
See Taylor v. United States, 495 U.S. 575, 588-89
(1990). And, if the statute under which the defendant was
convicted “sweeps more broadly than the generic crime,
” the underlying conviction does not categorically
match the generic crime. Descamps v. United States,
133 S.Ct. 2276, 2283 (2013). The modified categorical
approach allows a court to use the categorical approach when
a defendant was convicted of violating a divisible statute by
permitting “a court to determine which statutory phrase
was the basis for the conviction.” Id. at
2284-85. Under the circumstance-specific approach, the court
focuses on the facts, rather than the elements, of the prior
conviction. See Nijhawan v. Holder, 557 U.S. 29, 34
(2009). When a federal statute refers to a generic crime, the
categorical approach applies; however, when a federal statute
refers to the specific way in which an offender committed the
crime on a specific occasion, the circumstance-specific crime
applies. See id.
case, both parties agree that the categorical approach
applies (Docs. # 11, 12, 14), and the court agrees that the
phrase “element involving a sexual act or sexual
contact with another” found in 34 U.S.C. §
20911(5)(A)(i) signals a categorical analysis. See
Johnson v. United States, 135 S.Ct. 2551, 2562 (2015)
(“This emphasis on convictions indicates that
‘Congress intended the sentencing court to look only to
the fact that the defendant had been convicted of crimes
falling within certain categories, and not to the facts
underlying the prior convictions.'”); see also
United States v. Price, 777 F.3d 700, 708 (4th Cir.
2015), cert. denied, 135 S.Ct. 2911 (2015)
(“Congress expressly referenced the
‘elements' of the offense in subsection (5)(A)(i),
providing that one such element must involve ‘a sexual
act or sexual contact with another.'”); United
States v. Gonzalez-Medina, 757 F.3d 425, 430 (5th Cir.
2014)(“The definition's focus on the
“element[s]” of the predicate offense strongly
suggests that a categorical approach applies to
(5)(A)(i).”); United States v. George, 223
F.Supp.3d 159, 165(S.D.N.Y. 2016) (holding that “the
categorical approach applies to § 16911(5)(A)(i) of
SORNA”). As such, the court compares the elements of
Vineyard's Tennessee sexual battery offense to
SORNA's definition of “sex offense” and does
not consider the facts underlying Vineyard's sexual
battery conviction. See, e.g., Descamps,
133 S.Ct. at 2283; Taylor, 495 U.S.at 588-89.
The Court Considers the Plain Meaning of “Sexual
Contact, ” Not the Definition of
“Sexual Contact” Found in Title 18
parties' principal disagreement relates to the federal
definition of “sexual contact” as used in SORNA.
See 34 U.S.C. § 20911(5)(A)(i); see
also (Docs. # 11, 12, 14). The Government argues that
sexual battery under Tenn. Code § 39-13-505 is a
“sex offense” under 34 U.S.C. §
20911(5)(A)(i), making Defendant a “sex offender”
under § 20911(1) and, thus, subject to the SORNA
registration requirements. (Doc. # 12). Conversely, Defendant
maintains that sexual battery under Tennessee law does not
qualify as a “sex offense” under SORNA because
the Tennessee definition of “sexual contact” is
broader than the federal definition of that term in Title 18.
(Docs. # 11, 14).
Defendant raised a question as to whether sexual battery
under Tennessee law qualifies as a “sex offense”
under SORNA because sections 39-13-501 and 39-13-505(a) of
the Tennessee Code define “sexual battery” to
include the intentional “touching of semen and vaginal
fluid, which are not body parts.” (Doc. # 14 at p. 5).
As the Government pointed out in its Supplement to Response
in Opposition to Defendant's Motion to Dismiss, however,
“semen” and “vaginal fluid” were
added to Tennessee's definition of “sexual
contact” in 2013, which was after Defendant
pleaded guilty to sexual battery. See Tenn. Code
§ 39-13-501(2) (2013). (Seealso Doc.
# 15-4). Thus, as both parties agree, Defendant's
argument regarding the inclusion of “semen” and
“vaginal fluid” in Tennessee's definition of
“sexual contact” is off the mark. (Docs. # 15,