by Douglas Ankney

In a case of first impression, the U.S. Court of Appeals for the Eighth Circuit announced that the categorical approach applies to the tier analysis of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a).

Michael Ryan Coulson was convicted by court martial of “forcible pandering” in violation of Article 120c(b) of the Uniform Code of Military Justice (“UCMJ”), 10 U.S.C. § 920c(b) (2012). He subsequently failed to register as a sex offender in Iowa and pleaded guilty to violating SORNA. At his sentencing for the SORNA violation, Coulson argued that the categorical approach applied. And because his forcible pandering conviction is defined as forcible “prostitution,” which is further defined as “compelling another person to engage in sexual abuse or sexual contact” (10 U.S.C. § 920c(d)(1)), he argued it is a Tier I offense.

The U.S. District Court for the Northern District of Iowa determined that the categorical approach applied but also found that “the possibility of a prostitution conviction arising from mere sexual contact over the clothing was so unlikely as to be speculative or hypothetical.” The District Court determined that Coulson’s UCMJ conviction is comparable to sexual abuse, 18 U.S.C. § 2242, which is a Tier III offense under SORNA. The District Court sentenced Coulson accordingly, and he timely appealed.

The issue before the Court was “how to conduct SORNA’s tier analysis.” The Court observed that a sentence for a SORNA conviction depends partly on the severity of the underlying sex offense as categorized by SORNA’s three tiers. Tiers II and III apply when the underlying offense is “comparable to or more severe than” a listed offense. 34 U.S.C. § 20911(2)-(4). Tier I is a “catchall” when Tiers II and III do not apply and is the least severe category.

But the Eighth Circuit had never before determined which approach applies to SORNA’s tier analysis. The Court observed that the First, Fourth, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits have all held that the categorical approach applies, and no circuit has held to the contrary. (See Writer’s note below for full citations.) “In general, as applied in several different criminal- and immigration-law contexts, the categorical approach does not permit a court to consider a defendant’s actual underlying conduct,” the Court noted. See Moncrieffe v. Holder, 569 U.S. 184 (2013) (directing courts to consider “not … the facts of the particular prior case, but instead … whether the … statute defining the crime of conviction categorically fits within the generic federal definition”).

The Court explained: “This approach permits only an elements-to-elements comparison between a defendant’s prior offense and either: (1) a general or traditional common law definition of a referenced offense, e.g., ‘burglary’ as referenced in 18 U.S.C. § 924(e); or (2) the elements of an offense as defined with express reference to a particular statutory provision. SORNA’s tier provisions involve the latter in that 34 U.S.C. § 20911(4)(A)(i) expressly references the definitions of ‘aggravated sexual abuse’ and ‘sexual abuse’ from 18 U.S.C. §§ 2241 and 2242.”

Agreeing with the circuits that have already ruled on this issue, “textual support points almost exclusively toward the categorical approach,” the Court determined. “Reference to a generic ‘offense,’ to a specific statute, or to a ‘conviction’” and the absence of references to “conduct or to specific acts that a defendant previously committed” strongly suggest Congress intended courts to apply the categorical approach and to not look at the defendant’s actual conduct, according to the Court. See Nijhawan v. Holder, 557 U.S. 29 (2009). Thus, the Court held that the categorical approach applies to SORNA’s tier analysis.

Turning to the present case, the District Court concluded that Coulson’s comparative offense was sexual abuse under 18 U.S.C. § 2241. Conviction under that statute requires a sexual act. But the statutory elements of Coulson’s UCMJ conviction include sexual contact or sexual abuse. 10 U.S.C. § 920c(b). Sexual contact may be accomplished with touching over the clothes, but sexual abuse required a sexual act, i.e., penetration of the penis with the mouth, vulva, or anus or contact between the mouth and the penis, vulva, scrotum, or anus. § 920(g)(1) and (2).

Because it is possible to be convicted under § 920c(b) without committing a sexual act, the Court ruled that the District Court erred in determining Coulson’s comparative offense was sexual abuse, i.e., his “offense of conviction [wa]s unambiguously broader in scope than the SORNA comparators.” It was of no significance that Coulson forced an adult woman to engage in sexual intercourse for money that was paid to Coulson. Under the categorical approach, courts do not look at the defendant’s actual conduct, explained the Court.

Accordingly, the Court reversed Coulson’s sentence and remanded for further proceedings consistent with its opinion. See: United States v. Coulson, 86 F.4th 1189 (8th Cir. 2023).  

Writer’s note: The citations to the cases from the other circuits that have addressed this issue and have all adopted the categorical approach are as follows: United States v. Walker, 931 F.3d 576 (7th Cir. 2019); United States v. Barcus, 892 F.3d 228 (6th Cir. 2018); United States v. Young, 872 F.3d 742 (5th Cir. 2017); United States v. Berry, 814 F.3d 192 (4th Cir. 2016); United States v. Morales, 801 F.3d 1 (1st Cir. 2015); United States v. White, 782 F.3d 1118 (10th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125 (9th Cir. 2014).

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