Thomas Thayer was convicted under Minnesota law for fourth-degree criminal sexual conduct after groping his 14-year-old daughter while she was sleeping. Thayer later moved to Wisconsin without re-registering as a sex offender and was subsequently indicted in federal court for failing to comply with SORNA, the federal Sex Offender Registration and Notification Act, in violation of 18 USC 2250(a). The district court dismissed the indictment after finding that the Minnesota conviction did not categorically fall under SORNA’s statutory definition of a “sex offense.”
On appeal, a divided panel of the Seventh Circuit vacated the district court’s dismissal order and remanded. The Government had argued, and the Court agreed, that the district court erred in applying the “categorical method.” Under that approach, courts ignore the defendant’s actual conduct and determine whether the elements of the defendant’s prior offense match the elements of the federal statute. Under the “circumstance-specific approach,” courts look at the defendant’s actual conduct underlying the prior conviction.
As a matter of first impression, though noting the Fourth, Eighth, Ninth, and Eleventh Circuits have come to the same conclusion, the Court held that the district court should have applied the “circumstance-specific approach” to determine whether defendant’s prior offense was a “sex offense” under 34 USC 20911(5)(A)(ii), which defines a “sex offense” as a “criminal offense that is a specified offense against a minor,” as applied under 20911(7)(I), which creates a catchall for any offense that “by its nature is a sex offense against a minor.” While acknowledging that SORNA is “not a model of clarity,” the Court reasoned that 20911(7)(I) specifies that courts must look at an individual’s conduct, not the specifics of the offense they were charged with.
Judge Jackson-Akiwumi dissented, arguing that a categorical approach was warranted based on the context in which “conduct” was included in 20911(7)(I). When viewed in that context, the definition for “specified offense against a minor” is more similar to other statutes that the Supreme Court has held require a categorical approach.
Opinion by St. Eve, joined by Flaum
Dissent by Jackson-Akiwumi
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