May 29, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 2:17-cr-184 - Pamela Pepper,
Ripple, Rovner, and Barrett, Circuit Judges.
Barrett, Circuit Judge.
Walker was convicted for failing to register as a sex
offender between 2016 and 2017, as required by the Sex
Offender Registration and Notification Act. He argues that
his conviction must be vacated because he did not have to
register at that time. We agree. Because his obligation to
register-triggered by a 1998 Colorado conviction-expired
after fifteen years, we reverse the district court and vacate
Walker's conviction and sentence.
1997, Richard Walker sexually assaulted his four- and
six-year-old nephews. In 1998, he pleaded guilty to violating
a Colorado law that prohibits sexual contact with a child
under fifteen by anyone who is a least four years older than
the child. Colo. Rev. Stat. § 18-3-405(1). Walker was
sentenced to four years' probation, but probation was
later revoked, and he served a term in prison. After his
release, Walker had to register as a sex offender under the
Sex Offender Registration and Notification Act (SORNA). SORNA
imposes a three-tier progressive registration scheme that
tracks the severity of the original offense. Tier I offenders
must register for 15 years, Tier II offenders for 25 years,
and Tier III offenders for life. See 34 U.S.C.
2017, Walker was indicted for failing to register as a sex
offender from June 2016 to July 2017. See 18 U.S.C.
§ 2250(a). To prove "failure to register," the
government must, among other things, prove that the defendant
was in fact required to register. Id. §
2250(a)(1). Walker moved to dismiss the indictment, arguing
that his 1998 conviction was only a Tier I offense, which
would mean that his obligation to register as a sex offender
ended 15 years after his conviction and sentence. Because he
had no obligation to register between June 2016 and July
2017, he contended, he could not be convicted for failing to
district court disagreed. It determined that Walker was at
least a Tier II offender and denied his motion to dismiss.
Walker later entered a conditional guilty plea, preserving
his right to appeal the district court's decision about
whether the law required him to register as a sex offender.
sentencing, the district court had to determine more
precisely whether Walker was a Tier II or Tier III offender
in order to calculate his guidelines range. The relevant
difference between Tiers II and III for purposes of the
district court's analysis is the age of the victim: if
the defendant's victim was under 13, then he is a Tier
III offender; if the victim was a minor age 13 or older, then
he is a Tier II offender. See 34 U.S.C. §
20911(4)(A)(ii) & (3)(A). Though Walker's conviction
under the Colorado statute communicated only that his victim
was under 15, the district court looked past the conviction
to find that his victims were actually ages four and six. The
court thus held that Walker was a Tier III offender and
sentenced him to a below-guidelines 26-month term of
appeals, arguing that his conviction must be vacated because
he is a Tier I offender and was therefore not required to
register during the relevant time.
conviction and sentence both turn on his tier classification.
If he is a Tier I offender, we must reverse the denial of his
motion to dismiss and vacate his conviction. If he is a Tier
II offender, his conviction stands, but he must be