United States District Court, W.D. Virginia, Abingdon Division
James P. Jones United States District Judge Kevin L. Jayne, Special Assistant United States Attorney, Abingdon, Virginia, for the United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.
OPINION AND ORDER
JAMES P. JONES UNITED STATES DISTRICT JUDGE.
In connection with sentencing, the defendant in this criminal case has filed objections to the Presentence Investigation Report (“PSR”) pursuant to Federal Rule of Criminal Procedure 32(f). He contends that the PSR misstates his Base Offense Level. A hearing was held on the objections. For the reasons stated below, I conclude that the PSR correctly states the Base Offense Level, and I will overrule the objections.
On December 1, 2015, the defendant, Scott Steward Cammorto, pled guilty without a plea agreement to one count of Failure to Register as a Sex Offender in violation of 18 U.S.C. § 2250. His underlying sex offense occurred in Georgia in 1998. For that conduct, he pled guilty to the Georgia crimes of aggravated assault, rape, and kidnapping with bodily injury.
The Sentencing Guidelines explain that the Base Offense Level for Failure to Register as a Sex Offender depends on whether the underlying predicate offense renders the defendant a Tier I, Tier II, or Tier III sex offender. U.S. Sentencing Guidelines Manual (“USSG”) § 2A3.5 (2015). A Tier III offender is a sex offender whose offense of conviction is punishable by imprisonment for more than one year and
1(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense:
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18); or
(ii) abusive sexual contact (as described in section 2244 of Title 18) against a minor who has not attained the age of 13 years.
42 U.S.C. § 16911(4)(A)(i), (ii).
A sex offender is a Tier II offender if the sex offense was committed against a minor and meets certain other criteria. 42 U.S.C. § 16911(3). Neither party contends that Cammorto is a Tier II sex offender. A Tier I sex offender is “a sex offender other than a tier II or tier III sex offender.” 42 U.S.C. § 16911(2). In other words, “Tier I is a catch-all provision for all other sex offenders.” United States v. Berry, 814 F.3d 192, 195 (4th Cir. 2016).
The defendant argues that he is a Tier I offender and not a Tier III offender because under Georgia law, a person can be convicted of rape if he aided or abetted a rape, even if he did not personally commit rape. See Hendrix v. State, 238 S.E.2d 56, 57 (Ga. 1977). Therefore, according to the defendant, the predicate offense of rape to which he pled guilty in 1998 is not “comparable to or more severe than . . . aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18).” 42 U.S.C. § 16911(4)(A)(i). In response, the government argues that the elements of the Georgia offense of rape fit within the elements of aggravated sexual assault under 42 U.S.C. § 16911(4), and thus Cammorto is properly classified as a Tier III offender.
“To determine a defendant’s tier classification, courts compare the defendant’s prior sex offense conviction with the offenses listed in [the Sex Offender Registration and Notification Act’s] tier definitions.” Berry, 814
F.3d at 195. Generally, courts apply the so-called “categorical approach in assessing whether a defendant’s prior conviction constitutes a tier III sex offense under Section 16911(4)(A).” Id. at 199. “The categorical approach focuses solely on the relevant offenses’ elements, comparing the elements of the prior offense of conviction with the elements of the pertinent federal offense, also referred to as the ‘generic’ offense.” Id. at 195. “If the elements of the prior ...