United States v. Thomas Thayer

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-2385 UNITED STATES OF AMERICA, Plaintiff-Appellant, v. THOMAS P. THAYER, Defendant-Appellee. ____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 20-cr-88 — James D. Peterson, Chief Judge. ____________________ ARGUED MARCH 29, 2022 — DECIDED JULY 21, 2022 ____________________ Before FLAUM, ST. EVE, and JACKSON-AKIWUMI, Circuit Judges. ST. EVE, Circuit Judge. Appellant Thomas Thayer pled guilty to fourth-degree criminal sexual conduct under Minne- sota law for groping his 14-year-old daughter while she slept. When Thayer later moved to Wisconsin without registering as a sex offender, the government indicted him for failing to comply with the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. § 20901, et seq., in violation of 18 2 No. 21-2385 U.S.C. § 2250(a). The district court dismissed the indictment, finding § 20911(5)(A)(ii), applied through § 20911(7)(I), and § 20911(5)(C) of SORNA were categorically misaligned with Thayer’s Minnesota statute of conviction. The government ap- peals, arguing the district court erred in analyzing these pro- visions of SORNA under the categorical method. We agree with the government and vacate and remand the judgment of the district court. I. A. Before delving into the factual and procedural back- ground, we review a few relevant legal principles. SORNA establishes a comprehensive national system of registration for sex offenders, the purpose of which is to “pro- tect the public from sex offenders and offenders against chil- dren.” Id. § 20901. SORNA defines a “sex offender” as “an in- dividual who was convicted of a sex offense.” Id. § 20911(1). “Sex offense” in turn encompasses both “a criminal offense that has an element involving a sexual act or sexual contact with another” and “a criminal offense that is a specified of- fense against a minor.” Id. § 20911(5)(A)(i)–(ii). As relevant to the latter definition of “sex offense,” a “specified offense against a minor” includes “an offense against a minor that in- volves … [a]ny conduct that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I). Certain categories of consensual sexual conduct are exempted from the definition of “sex offense,” specifically “if the victim was an adult, un- less the adult was under the custodial authority of the of- fender at the time of the offense, or if the victim was at least 13 years old and the offender was not more than 4 years older No. 21-2385 3 than the victim.” Id. § 20911(5)(C). The clause of § 20911(5)(C) relating to consensual sex between minors is colloquially re- ferred to as the “Romeo and Juliet” exception. SORNA obli- gates sex offenders to register as such in each state in which they reside, work, or are a student. Id. § 20913(a). Although itself a civil regulatory scheme, noncompliance with SORNA is a crime under 18 U.S.C. § 2250. Criminal lia- bility under § 2250 turns upon whether a prior conviction constitutes a “sex offense” within the meaning of SORNA. …

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