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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowFinding the District Court conducted the correct analysis when determining the sentence of a man who had failed to register as a sex offender in Indiana and then committed incest with his 18-year-old daughter, the 7th Circuit Court of Appeals affirmed the six-level sentencing enhancement.
Booker Rogers was required to register as a sex offender based on incidents with his stepdaughter and one of his biological daughters that occurred in West Virginia. He later moved to Indiana, failed to register as a sex offender, and had nonconsensual sexual intercourse with his 18-year-old daughter, who was not the previous victim. He pleaded guilty to traveling in interstate commerce and failing to register as a sex offender in violation of 18 U.S.C. § 225. The District judge applied a six-level sentencing enhancement under U.S.S.G. §2A3.5(b)(1)(A) for committing a sex offense — incest against the daughter — while in failure-to-register status. The judge also refused to award credit for acceptance of responsibility under § 3E1.1 because Rogers falsely denied this relevant conduct.
“The failure-to-register guideline incorporates by reference the definition of the term ‘sex offense’ found in 42 U.S.C. § 16911(5). This case requires us to decide whether a categorical or fact-based approach applies to classifying sex offenses under this statute,” Judge Diane Sykes wrote. “We conclude that the threshold definition of ‘sex offense’ found in § 16911(5)(A)(i) requires a categorical approach — an inquiry limited to the elements of the offense — but the exception in subsection(5)(C) calls for an examination of the specific facts of the offense conduct. The district court conducted just this sort of analysis. Because the court properly applied the § 2A3.5 enhancement and properly declined to award § 3E1.1 credit, we affirm.”
Sykes noted that the 5th Circuit Court of Appeals reads Section 16911(5)(C) in the same way as the 7th Circuit.
“Here there’s no dispute that the Indiana incest offense meets the threshold definition of sex offense in §16911(5)(A)(i) as a categorical matter. Whether the exception applies depends on the underlying facts and circumstances – most prominently, whether Jane Doe consented to the sexual conduct,” she wrote.
The judge found that she did not, and the 7th Circuit agreed with that finding in United States of America v. Booker T. Rogers, 14-1553.
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