Argued October 30, 2014
Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. (6:13-cr-00141-1). Robert C. Chambers, Chief District Judge.
Jonathan D. Byrne,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.
Jennifer Rada Herrald, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Brian J. Kornbrath, Acting Federal Public Defender, Lex A. Coleman, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant.
R. Booth Goodwin, II, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Before WILKINSON, MOTZ, and FLOYD, Circuit Judges. Judge Floyd wrote the opinion, in which Judge Wilkinson and Judge Motz joined.
FLOYD, Circuit Judge:
Dwaine Allen Collins was convicted of knowingly failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Collins to 30 months' imprisonment and ten years of supervised release. On this direct appeal, Collins contests his conviction primarily on the grounds that the government failed to prove an essential element of a SORNA violation: that he knew he had an obligation to register.
In support, he points to comments made by a state court judge in a separate proceeding, which in Collins's view suggest that his obligation to register had expired. We agree with the district court, however, that the state judge appeared to be giving advice rather than a binding legal opinion. Moreover, there is substantial evidence in the record to support the district court's conclusion that Collins knowingly avoided an obligation to register as a sex offender. We thus find Collins's claim unpersuasive and affirm his conviction.
Collins also appeals his sentence. We find his 30-month term of imprisonment, which is within the applicable Guidelines range, to be reasonable and thus affirm the district court's sentence in that respect. As to the term of supervised release, however, the United States Sentencing Commission recently issued a clarifying amendment stating that a failure to register under SORNA is not a " sex offense" for the purposes of the Guidelines. Consequently, we vacate the supervised release portion of Collins's sentence and remand for further proceedings.
In 1998, Dwaine Allen Collins pleaded guilty to two counts of taking indecent liberties with a child in North Carolina. Upon his conviction, both North Carolina and federal law required him to register as a sex offender.
After his release from prison in 2001, Collins moved to Ohio, where he registered as a sex offender. As part of the registration procedures, Collins signed a form, titled " Explanation of Duties to Register as a Sex Offender," which explained that he was required to register annually for ten years and verify his residence annually. Despite signing this form, Collins failed to re-register in 2002. Thus a warrant was issued in Ohio for his arrest. Before he could be apprehended, he moved to Parkersburg, West Virginia, where he remained until 2011. He did not register his sex offender status in West Virginia during that time.
In January 2011, Collins was arrested while attempting to steal a television in Ohio. After being released, he was detained on the 2002 warrant for failing to update his registration. While in custody, Collins signed another form, titled " Notice of Registration Duties of Sexually Oriented Offender or Child-Victim Offender." J.A. 145. The form listed Collins's expected address as Parkersburg, West Virginia, but did not identify the sheriff's office where Collins was to register. The form also stated that: (i) Collins was classified as a Tier II sex offender, a more serious category than his original Tier I status; and (ii) he was required to register for 25 years. The 25-year requirement conflicts with his original 10-year requirement.
In March 2011, Collins pleaded no contest to the single count indictment in Ohio state court charging him with failing to verify his address. In the state court proceeding, the judge suggested that a recent Ohio Supreme Court case rendered the increase from a 10-year registration period to a 25-year registration period " void."  J.A. 78. The judge further suggested that the original ten-year registration requirement applied. Id.; see also J.A. 78 (stating that he thought " this period was a ten year period dating from the time he would have been released" ). Thus the judge sentenced Collins to time served for the outstanding 2002 warrant. J.A. 79-80.
After being released from custody in Ohio, Collins returned to West Virginia. He again did not register as a sex offender with West Virginia authorities, despite signing forms ...