Xavier Josey was convicted under 18 U.S.C. § 2250(a) for knowingly failing to update his registration as a sex offender after moving interstate, a violation of SORNA. At sentencing, the district court’s calculation of the defendant’s criminal history score included his three initial sex-offense sentences, which were imposed more than ten years before his failure-to-update-registration offense but within ten years of a separate violation of New York’s state registration law in 2018.
The district court adopted the Probation Office’s approach, which relied on Guidelines commentary stating that “commencement of the instant offense” includes “relevant conduct” under § 1B1.3, thereby extending the look-back period for counting prior sentences.
On appeal, the Third Circuit considered whether “relevant conduct” commences the “instant offense” under the Guidelines provisions for calculating a defendant’s criminal history Emphasizing that, under United States v. Nasir, sentencing courts may rely on Guidelines commentary only if the underlying Guideline text is genuinely ambiguous, the panel here found no such ambiguity in the text of the actual Guidelines, holding that “commencement of the instant offense’ unambiguously refers to the start of the specific offense conduct for which a defendant is then being sentenced and does not include separate or related offense conduct.”
The structure and history of the Guidelines supported this conclusion, too, as courts may only consider additional past conduct under §4A1.3 after calculating Criminal History Category when considering a departure, not as part of the initial criminal history score. The court further noted that the relevant “culpable act” for a § 2250(a) SORNA violation is the knowing failure to update registration after an interstate move, not earlier noncompliance with state law.
Because the district court improperly counted the defendant’s prior sentences which fell outside the permissible “look-back” period from the offense of conviction, Josey was thus wrongly placed in Criminal History Category VI (24–30 months) instead of Category IV (15–21 months). Accordingly, the court vacated the sentence and remanded for resentencing using the correct criminal history calculation.
Appeal from the Middle District of Pennsylvania.
Opinion by Krause, joined by Bibas and Montgomery-Reeves.