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United States v. Berry

United States District Court, E.D. North Carolina, Western Division

December 15, 2014

UNITED STATES OF AMERICA,
v.
BRIAN KEITH BERRY, Defendant.

MEMORANDUM OPINION

LOUISE W. FLANAGAN, District Judge.

This matter came before the court on December 10, 2014, for sentencing, at which hearing the court addressed and overruled several objections raised by defendant to the advisory guidelines calculation recommended by the United States Probation office. Where the court indicated a written opinion would follow more fully memorializing the court's reasoning with respect to one such objection raised by defendant, concerning calculation of his offense level, this opinion is rendered.

BACKGROUND

In particular, defendant objected to calculation of base offense level 16, under USSG. § 2A3.5(a)(1), premised upon defendant's status as a Tier III sex offender. Defendant argued, instead, that his base offense level should have been 14, because he is classified by the state of New Jersey as a Tier II sex offender based upon his prior conviction of "Endangering the Welfare of a Child." The court at sentencing determined, by contrast, that defendant was a class Tier III sex offender based upon description of the conduct underlying defendant's prior sex offense as set forth in the presentence report.

Defendant pleaded guilty in this case to failure to register as a sex offender under 18 U.S.C. § 2250. Section 2250 provides that "Whoever is required to register under the Sex Offender Registration and Notification Act... and knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both." 18 U.S.C. § 2250(a).

ANALYSIS

The Sex Offender Registration and Notification Act (SORNA), "establishes a comprehensive national system for the registration of [sex] offenders." 42 U.S.C. § 16901. It requires a sex offender, defined as "an individual who was convicted of a sex offense, " id. § 16911(1), to register in each jurisdiction where he resides and in each jurisdiction where he is employed, id. § 16913 (a). See United States v. Bridges, 741 F.3d 464, 467 (4th Cir. 2014).

Under U.S.S.G. § 2A3.5, the base offense level for failure to register as a sex offender is 16 "if the defendant was required to register as a Tier III offender, " and 14 "if the defendant was required to register as a Tier II offender." USSG. § 2A3.5(a). The guidelines further provide that the terms "Tier III offender" and "Tier II offender" have the meaning given the terms "tier III sex offender" and "tier II sex offender, " respectively, in SORNA, 42 U.S.C. § 16911. USSG § 2A3.5, comment. (n.1). Under SORNA, a "tier III sex offender" means, in pertinent part,

a sex offender whose offense is punishable by imprisonment for more than 1 year and-
(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) (emphasis added). By comparison, a "tier II sex offender" means, in pertinent part,

a sex offender other than a tier III sex offender whose offense is punishable by imprisonment ...

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