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US v Segura (Failure to Register is NOT a Sex Offense ?)

3-31-2014 5th Circuit:

US v Segura
No. 12-11262.

Defendant-Appellant Angel Segura ("Segura") appeals his sentence on the grounds that the district court's imposition of a 120-month term of incarceration was unreasonable. He also appeals the district court's imposition of a life-term of supervised release on the grounds that the district court erroneously treated his conviction for failure to register as a sex offender as a "sex offense." For the reasons explained below, we affirm.

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Note: Even though Segura lost this appeal, the court ruled something helpful to ALL sex offenders, hence why we list case.

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Therefore, we hold that footnote 3 in Tang is dictum and does not bind the court under the prior-panel rule. Accordingly, we are free to examine the question of whether failure to register qualifies as a sex offense without regard to the statement in the Tang opinion. For the reasons explained below, we hold that failure to register does not qualify as a sex offense for the purposes of § 5D1.2(b)(2).

The Seventh Circuit's reasoning in United States v. Goodwin is instructive. 717 F.3d 511, 517-20 (7th Cir. 2013).3 In that case, the defendant, like Segura, pleaded guilty to failure to register and the district court sentenced him to a life-term of supervised release. Id. at 514. On appeal, Goodwin argued, inter alia, that the district court miscalculated the advisory Guidelines range for his term of supervised release, and thereby committed plain error. Id. at 516. More specifically, Goodwin posited that
U.S.S.G. § 5D1.2(b)(2) is inapplicable to his offense, that the [PSR] erroneously relied on this Guideline in recommending a life term of supervised release, and that the district court's sentencing him to a life term of supervised release under the incorrect assumption that this sentence was within the advisory Guidelines constitutes plain error.
Id. at 518. The Seventh Circuit agreed with Goodwin. In reaching its conclusion, the Seventh Circuit first considered whether failure to register should be classified as a sex offense. Id. at 518-19. The court disagreed with the Application Note's apparent suggestion that any failure to register under SORNA could be considered an offense perpetrated against a minor.4 See id at 519. The court noted that "[i]n Goodwin's case, there was no specific victim of his failure to register" and accordingly, "it seems incorrect to claim that Goodwin committed his failure to register `against a minor.'" Id. The court explained that applying the term `"perpetrated against a minor' to any failure to register stretches this term past its breaking point.'" Id. We agree. In Segura's case, there was no specific victim attributed to his failure to register. Therefore, the crime was not perpetrated against a minor and should not qualify as a sex offense.

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For the foregoing reasons, we hold that the district court erred in finding that failure to register is a sex offense for the purposes of § 5D1.2(b)(2). However, we conclude that the error was not plain and reversal is not warranted. Accordingly, we affirm.

From case:
The statutory penalties for violating § 2250(a)—Segura's offense of conviction—include a term of supervised release of five years to life. See 18 U.S.C. § 3583(k). In addition to the statutory sentencing scheme, the Guidelines provide recommendations for imposing supervised release as part of a defendant's sentence. See U.S.S.G. § 5D1.2. Section 5D1.2(b)(2) is a policy statement recommending that sentencing courts impose the statutory maximum term of supervised release if the offense of conviction is a sex offense. The commentary to § 5D1.2 states that a "sex offense," for the purposes of that Guideline, is an offense perpetrated against a minor under, inter alia, 18 U.S.C. Chapter 109B. U.S.S.G. § 5D1.2 cmt. n.1. The only offense listed in Chapter 109B is failure to register under 18 U.S.C. § 2250—Segura's offense of conviction. As a result of the interplay between 18 U.S.C. § 3583 and U.S.S.G. § 5D1.2, the district court concluded that failure to register qualifies as a sex offense.

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