22-2030 United States of America v. Marrero

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court’s local rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of March, two thousand twenty-four.

PRESENT: BARRINGTON D. PARKER, GERARD E. LYNCH, MARIA ARAÚJO KAHN, Circuit Judges. __________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. 22-2030

CHRISTOPHER MARRERO,

Defendant-Appellant. ___________________________________________

FOR DEFENDANT-APPELLANT: ALLEGRA GLASHAUSSER, Assistant Federal Defender, Federal Defenders of New York, Inc., New York, NY. FOR APPELLEE: ANDREW D. WANG (Nicholas J. Moscow, on the brief), Assistant United States Attorneys, for Breon Peace, United States Attorney for the Eastern District of New York, New York, NY.

Appeal from a judgment of the United States District Court for the Eastern District

of New York (Edward R. Korman, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on September 12, 2022, is REVERSED.

Defendant-Appellant Christopher Marrero (“Marrero”) appeals from the district

court’s September 12, 2022, judgment, rendered following a guilty plea, convicting him

of one count of failure to register as a sex offender in violation of

(a). The

district court sentenced Marrero to time served and five years’ supervised release.

On appeal, Marrero argues that the district court erred in denying his motion to

dismiss the indictment based on its conclusion that he had a continuing registration

obligation under the Sex Offender Registration and Notification Act (“SORNA”). We

agree. We assume the parties’ familiarity with the underlying facts, the procedural

history, and the issues on appeal, to which we refer only as necessary to explain our

decision.

2 BACKGROUND

In March 2001, Marrero was convicted of attempted rape in the second degree in

violation of New York Penal Law § 130.30. Thereafter, he moved to Florida. In May 2018,

Marrero moved from Florida back to New York, but did not update his sex offender

registration. Marrero was subsequently indicted for his failure to register in December

2019.

Prior to pleading guilty to the failure to register charge, Marrero moved to dismiss

the indictment for failure to state an offense. In that motion, he argued that his prior state

law conviction renders him a Tier I sex offender under SORNA, subjecting him to a 15-

year federal registration obligation that expired prior to his instant failure to register. 1

The district court disagreed and concluded that Marrero qualified as a Tier II sex offender,

requiring 25 years of registration.

DISCUSSION

Marrero contends that the district court erred in failing to dismiss the indictment,

and that his judgment of conviction should therefore be vacated. “In considering his

challenge on appeal, we review de novo any questions of law arising from the District

Court’s judgment . . . .” United States v. Peeples,

(2d Cir. 2020).

At oral argument, Marrero’s counsel represented that her client’s registration is currently 1

up to date and that, irrespective of any federal obligations, he is subject to a lifetime registration requirement under New York law. 3 SORNA sets forth three registration tiers: Tier I, II, and III, which depend on the

nature of the sex offense for which the offender was previously convicted. See

(2)–(4). A person qualifies as a Tier II sex offender if they were convicted of a

felony offense against a minor that is “comparable to or more severe than” an enumerated

list of offenses that includes “abusive sexual contact (as described in section 2244 of title

18).”

§ 20911(3)(A)(iv). As relevant here, abusive sexual contact under

includes “knowingly engag[ing] in a sexual act with” a minor who (1) is between the ages

of 12 and 16 and (2) is at least four years younger than the perpetrator.

(a), 2244(a)(3). On the other hand, a person is a Tier I “sex offender” if their offense

does not meet the Tier II or III criteria. 2 See

(2).

For purposes of this appeal, we employ the categorical approach to determine the

SORNA tier classification of Marrero’s prior conviction. 3 The categorical approach calls

for courts to “‘identify the minimum criminal conduct necessary for conviction under a

particular statute’ by ‘looking only to the statutory definitions—i.e., the elements—of the

offense, and not to the particular underlying facts.’” Hylton v. Sessions,

(2d

2A person qualifies as a Tier III sex offender if they were convicted of a felony offense that is “comparable to or more severe than” an enumerated list of aggravated offenses.

(4). The government does not contend that Marrero’s prior conviction is a Tier III offense.

3 The district court applied the categorical approach, in accordance with every Court of Appeals that has considered the issue. Although the Second Circuit has not yet addressed this issue, we need not do so here as the government does not challenge the district court’s conclusion that the categorical approach applies to evaluating offense tiers under SORNA. See Appellee’s Br. 9 n.2. Thus, we assume without deciding that the categorical approach applies. 4 Cir. 2018) (quoting United States v. Hill,

(2d Cir. 2018)). “Because we

examine what the state conviction necessarily involved, not the facts underlying the case,

we must presume that the conviction ‘rested upon [nothing] more than the least of th[e]

acts’ criminalized, and then determine whether even those acts are encompassed by the

generic federal offense.” Moncrieffe v. Holder,

, 190–91 (2013) (quoting Johnson

v. United States,

(2010)).

Our analysis of the elements of second-degree attempted rape is complicated by

a change in New York law after Marrero’s arrest but before his guilty plea. At the time of

Marrero’s 2000 arrest, New York Penal Law § 130.30 prohibited a person 18 years or older

from engaging in sexual intercourse with a person under the age of 14. See

(McKinney 2000) (the “2000 Statute”). However, on February 1, 2001, prior

to Marrero’s guilty plea, a new version of the statute went into effect. The new version

expanded the scope of criminal conduct by criminalizing sexual intercourse between a

person 18 years or older and a person under the age of 15. See

(McKinney 2022) (the “2001 Statute”).

As discussed above, the relevant Tier II SORNA offense requires an age difference

of at least four years between the victim and perpetrator. See

(a),

2244(a)(3). The 2001 Statute is therefore not a categorical match, as it can be violated by

sexual intercourse between a person who is 18 years old and another person between the

ages of 14 and 15, which is an age difference of less than four years. See, e.g., United States

5 v. Escalante,

(5th Cir. 2019) (“Looking solely at the elements then, the

Utah offense criminalizes consensual sexual contact between an 18-year-old and a 15-

year-old, whereas the federal statute does not. Thus, under the categorical approach, the

Utah offense sweeps more broadly than the comparable federal offense and cannot serve

as a proper predicate for a SORNA tier II sex offender designation.” (internal quotation

marks omitted)). Meanwhile, the 2000 Statute prohibited sexual intercourse by a person

18 years or older with a person under the age of 14, requiring a minimum age difference

of four years. See

(McKinney 2000). Therefore, the 2000 Statute

is a categorical match to a Tier II SORNA offense. Thus, Marrero’s tier classification turns

on whether he was convicted under the original or amended version of the statute.

In applying the categorical approach in other contexts, we have recognized that

“federal courts are bound by the highest state court’s interpretations of state law.”

Matthews v. Barr,

, 622 n.11 (2d Cir. 2019); see also Johnson,

(determining that the highest state court’s determination of the elements of an offense are

binding on a federal court). The New York Court of Appeals has long recognized the

“general rule” that nonprocedural statutes “are not to be applied retroactively absent a

plainly manifested legislative intent to that effect.” People v. Oliver,

(1956); see also People v. Ndaula,

(2d Dep’t 2023) (same). Here, the

legislature did not explicitly state that the amendment to New York Penal Law § 130.30

should apply retroactively. See Sexual Assault Reform Act, 2000 N.Y. Sess. Laws Ch. 1,

6 § 33 (effective Feb. 1, 2001). Thus, in applying the categorical approach, “we focus on the

law as it applied to [the defendant] when he committed the offense,” rather than at the

time the defendant was convicted. United States v. Titties,

, 1262 n.2 (10th

Cir. 2017).

For the first time at oral argument, 4 Marrero contended that, despite the “general

rule” in New York, the 2001 Statute is the operative statute for applying the categorical

approach because there is no evidence in the record that the court can consider that

identifies the date of Marrero’s offense or that establishes that his guilty plea was based

on the conduct for which he was arrested on November 12, 2000. Specifically, he argued

that, in determining which statute to evaluate under the categorical approach, the court

is limited to considering sources identified by the United States Supreme Court in United

States v. Shepard,

(2005). Such documents include “the charging document,

the terms of a plea agreement or transcript of colloquy between judge and defendant in

4 Ordinarily, arguments not raised in a principal brief—let alone not raised even in the reply—are considered waived. See, e.g., JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V.,

(2d Cir. 2005) (“We begin by observing that arguments not made in an appellant’s opening brief are waived even if the appellant pursued these arguments in the district court or raised them in a reply brief.”). Marrero also did not raise this argument below, perhaps because appended to his motion to dismiss was his signed 2001 sex offender registration form, which lists the date of his offense as September 20, 2000. However, this court has discretion to excuse Marrero’s waiver “where manifest injustice would otherwise result.” JP Morgan Chase Bank,

. Because ignoring this argument would lead to affirmance of his conviction for failure to register, we conclude that the manifest injustice standard is met here. 7 which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information.” Id. at 26.

In the case at bar, the only Shepard document in the record is Marrero’s certificate

of disposition, which states that he was arrested on November 12, 2000, and convicted of

attempted rape in the second degree on March 12, 2001. See United States v. Green,

(2d Cir. 2007) (identifying a certificate of disposition as “a judicial record of

the offense of which a defendant has been convicted”). The minimal information

contained in that document—without reference to impermissible, non-Shepard

evidence—leaves the court to speculate as to when the offense to which he pleaded guilty

occurred. His conviction could have been based on conduct that occurred after Marrero’s

November 2000 arrest and the February 2001 statutory change, alleged in a superseding

charging document. Or it could have occurred before his November 2000 arrest, meaning

that he pleaded guilty to violating the prior version of New York Penal Law § 130.30, as

the government asserts. Without an offense date listed in the Shepard documents, we

cannot conclude with certainty that the conviction was based on conduct that occurred

before the change in the law. Pereida v. Wilkinson,

(2021) (“[A]ny

lingering ambiguity about the [Shepard documents] can mean the government will fail to

carry its burden of proof in a criminal case.”). Accordingly, because Marrero could have

been convicted under either the 2000 or 2001 Statute, the “minimum criminal conduct

8 necessary for [Marrero’s] conviction” is that under the 2001 Statute, which is not a

categorical match for a Tier II offense. Sessions,

.

Thus, we conclude that Marrero is a Tier I sex offender whose obligation to report

under SORNA expired before the failure to update his registration charged in the instant

indictment. Accordingly, the district court erred in denying the motion to dismiss the

indictment for failure to state an offense. 5

* * *

We have reviewed the parties’ remaining arguments and find them to be

unavailing. For the reasons set forth above, we reverse Marrero’s conviction and direct

that the indictment be dismissed.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

5 We note that the experienced district judge cannot be faulted for failing to identify a defense that was not clearly called to his attention, and his decision on the issue as framed below appears to have been correct. However, an error is “plain” when it is apparent to the appellate court. Henderson v. United States,

(2013) (“[I]t is enough that an error be plain at the time of appellate consideration.” (internal quotation marks omitted)). We also note that the record refers to a police report suggesting that Marrero was originally arrested for statutory rape as defined under the 2000 Statute, but that evidence may not be considered for purposes of the categorical approach, and, in any event, it still does not definitively establish that he pleaded guilty to the offense charged at the time of his arrest. 9