United States v. Thomas Faulls, Sr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4595

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THOMAS EARL FAULLS, SR.,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Glen E. Conrad, Chief

District Judge. (3:13-cr-00001-GEC-1)

Argued: October 28, 2015 Decided: May 5, 2016

Before SHEDD, DIAZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in

which Judge Shedd and Judge Harris joined. Judge Shedd wrote a

separate concurring opinion.

ARGUED: Timothy Anderson, ANDERSON & ASSOCIATES, PC, Virginia

Beach, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF

THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for

Appellee. ON BRIEF: Anthony P. Giorno, United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for

Appellee.

DIAZ, Circuit Judge:

Thomas Faulls was convicted of kidnapping in violation of

18 U.S.C. § 1201(a)(1), interstate domestic violence in

violation of 18 U.S.C. § 2261(a)(2) and (b)(4), and possession

of a firearm in furtherance of a crime of violence in violation

of 18 U.S.C. § 924(c). The district court sentenced Faulls to

295 months’ imprisonment and also required him to register as a

sex offender under the Sex Offender Registration and

Notification Act (SORNA), 42 U.S.C. § 16911 et seq.

On appeal, Faulls contends that his counsel was ineffective

in opening the door to testimony by a government expert, and in

failing to object to the district court’s decision to keep the

jury late one evening. He also contends that the district court

erred in admitting prior acts evidence and in requiring him to

register as a sex-offender. For the reasons that follow, we

affirm.

I.

We recite the relevant evidence in the light most favorable

to the government. United States v. Seidman, 156 F.3d 542, 547

(4th Cir. 1998).

2

A.

Thomas and Lori Faulls were married for about twenty-five

years; they had two children. Their marriage was volatile, and

they separated in June 2012.

Following their separation, the couple’s interactions were

marked by a series of violent episodes, three of which are

relevant here. On June 28, 2012, Lori returned to the marital

home in Mineral, Virginia, to gather some of her belongings (the

“Mineral incident”). There, Faulls confronted her about the

separation and expressed frustration that their children never

answered his calls. He approached Lori with a gun and laughed

when she asked if he was going to kill her. When Lori told

Faulls that she was staying with a friend, Faulls called the

friend to say that she ruined his marriage by allowing Lori to

stay with her and that it would be her fault if Lori died.

Faulls then began yelling at Lori, telling her that the marital

home was her home and demanding to know why she was leaving.

Instead of leaving immediately, Lori stayed with Faulls to calm

him down. When she did leave, Faulls followed her and, at some

point, hit her car with his truck. 1

1 Lori told police that she wasn’t sure if it was an

accident or if Faulls acted intentionally because she “was

scared to death.” J.A. 198–99.

3

Shortly after this incident, Lori moved to Williamsburg,

Virginia, to live with her daughter Britnee. In mid-August

2012, Faulls came to Britnee’s apartment and confronted her for

not answering his calls (the “Williamsburg incident”). When

Britnee tried to call 911, Faulls attacked the women and took

their cell phones and car keys. Faulls allowed Britnee to

leave, but he repeatedly demanded that Lori return home.

Eventually, Lori was able to convince Faulls to leave the

apartment. 2

The third incident resulted in Faulls’s convictions. On

August 22, 2012, Lori drove Faulls to a repair shop, purportedly

to pick up his truck. In fact, the truck was parked behind the

marital home. On the way, Faulls pretended to call the shop to

see if his truck was ready, but he actually called one of the

couple’s children, knowing that no one would answer. Faulls

told Lori that the truck was not ready and they returned to the

house, where Lori declined his invitation to come inside.

Faulls became angry and revealed that his truck had been parked

behind the house the whole time. He took Lori’s cell phone and

car keys, then showed her a pair of zip ties that had been

fashioned into handcuffs. He asked Lori whether she “wanted to

do this the easy way or the hard way.” J.A. 215. Faulls then

2 Lori did not report this incident to the police.

4

ordered her into the truck, where Lori saw his shotgun in the

backseat. Faulls locked the passenger door, and before driving

away, threw Lori’s cell phone out the window. That night,

Faulls and Lori stayed at a hotel in Elkins, West Virginia,

nearly 200 miles from Mineral.

The next morning, Faulls sought to have sex with Lori.

Lori told him that she was uncomfortable but eventually

acquiesced out of fear. That day, Faulls and Lori went to

several stores, where Lori bought clothes and hygiene products.

They also stopped at a liquor store and purchased a bottle of

vodka.

That evening, Faulls and Lori went to a restaurant and bar.

Faulls got drunk and told patrons sitting nearby that Lori was

his wife and that he had kidnapped her. The pair left shortly

thereafter and, after discovering that there were no rooms

available at a nearby hotel, began walking back toward the

truck. At that point, Lori fled. She saw two women getting

into a car and asked them to take her to the police. The women

drove her to the sheriff’s office, where Lori reported what had

happened to her.

B.

Prior to trial, the district court preliminarily denied the

government’s motion to allow a domestic violence expert to

testify in the government’s case-in-chief, stating that

5

admission would depend on the scope of defense counsel’s

examination of the witnesses. At trial, the government called

the bartender at the restaurant where Faulls and Lori stopped

for the evening. On cross-examination, Faulls’s counsel asked

the bartender whether Lori was free to leave and whether he

believed Lori was being held against her will. The bartender

answered that Lori was free to leave and that, from what he

observed, she was not being held against her will. Although

Faulls’s counsel insisted that he merely asked the questions to

help the jury understand how close Lori was to the bar’s exit,

the court concluded that counsel had opened the door to the

government’s expert because the issue of whether Lori could have

fled had “both a physical and a psychological component.” J.A.

392.

The expert’s testimony focused on her research regarding

intimate partner violence, risk factors involved with this type

of violence, and the psychological components of abuse. She did

not testify that Lori had been a victim of domestic violence,

and the court addressed the jury before the testimony to

emphasize that the expert had never interviewed or examined

Lori.

The district court also allowed the government to introduce

evidence of the Mineral and Williamsburg incidents under Federal

Rule of Evidence 404(b). The court twice gave the jury a

6

limiting instruction regarding this evidence, stating that it

could be considered only to prove “the defendant’s motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident in connection with” Faulls’s

charges, but not as evidence of Faulls’s character or propensity

to commit the offenses. J.A. 200, 402.

At the end of the first day of trial, weather reports

forecast a snowstorm that threatened a delay in the proceedings.

The lawyers did not want Lori to testify over two days, so the

court asked the jurors if they would be willing to stay late to

complete her testimony. Faulls’s counsel did not object, and

though at least one juror did not want to stay late, the court

chose to complete the testimony that evening. The court

adjourned at 7:40 PM.

The jury convicted Faulls of kidnapping, interstate

domestic violence, and possessing a firearm in furtherance of a

crime of violence. The jury also determined that Faulls

committed aggravated sexual abuse in violation of 18 U.S.C.

§ 2241(a)(2), which served as the predicate crime of violence

for the interstate domestic violence charge and also enhanced

Faulls’s sentencing range. The district court further enhanced

Faulls’s sentencing range after it determined that Faulls

obstructed justice when he called his mother from jail and asked

her to convince Lori not to testify.

7

II.

A.

We first consider Faulls’s argument that he was denied

effective assistance of counsel, an issue we review de novo.

United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).

Faulls contends that his counsel was ineffective during his

cross-examination of the bartender, thereby opening the door to

allow the government to call its domestic violence expert.

Faulls also contends that his counsel was ineffective when he

failed to object to the court’s decision to keep the jury late

to complete Lori’s testimony.

We decline to reach Faulls’s claim. Unless an attorney’s

ineffectiveness conclusively appears on the face of the record,

such claims are not addressed on direct appeal. United States

v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). Because there is

no conclusive evidence of ineffective assistance on the face of

this record, we conclude that Faulls’s claim should be raised,

if at all, in a 28 U.S.C. § 2255 motion. See United States v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

B.

Next, we consider whether the district court correctly

admitted prior acts evidence under Rule 404(b). We review

evidentiary rulings for abuse of discretion, United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997), and will not reverse a

8

district court’s decision to admit prior acts evidence unless it

was “arbitrary or irrational,” United States v. Rawle, 845 F.2d

1244, 1247 (4th Cir. 1988) (citing United States v. Greenwood,

796 F.2d 49, 53 (4th Cir. 1986)).

Faulls asserts that the district court should not have

admitted testimony regarding the Mineral and Williamsburg

incidents because the evidence was neither relevant nor

necessary to the charges. Alternatively, Faulls argues that the

probative value of the evidence was substantially outweighed by

its prejudicial effect because the evidence (if believed)

demonstrated a pattern of domestic violence.

Evidence of prior wrongs is not admissible “to prove a

person’s character in order to show that on a particular

occasion the person acted in accordance with the character.”

Fed. R. Evid. 404(b)(1). However, such evidence may be

admissible for other purposes, including to show motive,

opportunity, intent, preparation, or plan. Id. 404(b)(2).

Prior act evidence is also admissible under Rule 404(b) to show

the victim’s state of mind. E.g., United States v. Powers, 59

F.3d 1460, 1464 (4th Cir. 1995).

To be admissible under any theory, the prior act evidence

must be “(1) relevant to an issue other than character;

(2) necessary; and (3) reliable.” United States v. Siegel, 536

F.3d 306, 317 (4th Cir. 2008) (quoting United States v. Wells,

9

163 F.3d 889, 895 (4th Cir. 1998)). Evidence is necessary when

it is “probative of an essential claim or an element of the

offense,” Queen, 132 F.3d at 997, or when it “furnishes part of

the context of the crime,” United States v. McBride, 676 F.3d

385, 398 (4th Cir. 2012) (quoting Rawle, 845 F.2d at 1247 n.4).

Even so, a district court may exclude the proffered evidence “if

its probative value is substantially outweighed by a danger

of . . . unfair prejudice.” Fed. R. Evid. 403. The danger of

prejudicial effect subsides when the district court gives proper

limiting instructions, particularly in the face of overwhelming

evidence of guilt. See Powers, 59 F.3d at 1468; see also United

States v. Briley, 770 F.3d 267, 275 (4th Cir. 2014) (“Rule

404(b) is a rule of inclusion.”).

We discern no error in the district court’s evidentiary

rulings. First, the evidence was relevant to issues other than

character or propensity. A jury could reasonably conclude that

Faulls’s motive with respect to the Mineral and Williamsburg

incidents was to stop Lori from leaving the marital home or,

generally, the marriage. That same jury could conclude that

Faulls committed the charged offenses because he was again upset

that Lori wanted to leave the marital home and rejected his

invitation to come inside.

A jury could also reasonably conclude that the evidence

demonstrated Faulls’s control and domination over Lori, which

10

was necessary to explain Lori’s state of mind and her apparent

willingness to remain with Faulls during the events leading to

the charged offenses, even though Lori and Faulls were out in

public, surrounded by others. See Powers, 59 F.3d at 1467

(concluding that evidence of previous physical abuse by a father

accused of sexually assaulting his daughter was necessary to

show the power and control he had over his victim and his

victim’s fear of retribution for standing up to or reporting

him).

Finally, we conclude that the probative value of the

evidence was not substantially outweighed by the danger of

unfair prejudice to Faulls. The evidence was highly probative,

as it demonstrated Faulls’s domination over Lori, his motive for

committing the offenses, and Lori’s state of mind throughout the

ordeal. Additionally, the district court gave the jury clear

limiting instructions—reminding the jury that it should not

consider the evidence to prove Faulls’s character or his

propensity to commit the charged offenses—which obviated the

danger of prejudice.

C.

Last, we consider whether the district court correctly

required Faulls to register as a sex offender based on his

conviction for interstate domestic violence.

11

The parties dispute whether Faulls preserved this claim for

appeal, and the resolution of this preliminary question directs

our standard of review. Usually, we review a district court’s

imposition of special conditions of supervised release for abuse

of discretion. United States v. Holman, 532 F.3d 284, 288 (4th

Cir. 2008). The government argues, however, that Faulls failed

to object at sentencing, thus cabining our review to plain

error. Although Faulls did not formally object when the

district court asked for Faulls’s thoughts on this issue—

responding merely, “[W]e denied from the beginning this is a sex

offense, but I would obviously leave it to the discretion of the

Court,” J.A. 510—we conclude that Faulls preserved the issue for

review. See United States v. Lynn, 592 F.3d 572, 577–79 (4th

Cir. 2010) (abandoning a “formulaic” objection standard and

providing, with examples, that the goal of the contemporaneous-

objection rule is to preserve the record and alert the district

court to its responsibility to address the issue).

1.

Faulls contends that the district court should not have

reached the question of whether his conviction for interstate

domestic violence was a sex offense because the government gave

“no clear indication that this should be a sex offender case

based on the [Department of Justice]’s own guidelines.”

Appellant’s Br. at 24. If by this Faulls means that the

12

government did not urge the district court to impose SORNA

registration as a condition of supervised release, he is

mistaken. If, on the other hand, Faulls means that the

Department of Justice Guidelines require the government to give

notice, he has not pointed this court to such a requirement, and

we have not found one. In any event, Faulls cannot credibly

claim to have been surprised by the issue, given that the

district court’s local standing order directs the probation

officer to determine whether sex offender registration is

appropriate, and gives the court discretion to impose the

condition of supervised release at sentencing.

2.

Turning to the merits of the imposed condition, sex

offenders are required to register in every jurisdiction in

which the offender resides, works, and attends school. 42

U.S.C. § 16913(a). A sex offender is someone who is convicted

of a sex offense, which in relevant part is defined as a

criminal offense that “has an element involving a sexual act or

sexual contact with another,” or a “Federal offense . . . under

chapter 109(A) [Sexual Abuse offenses under 18 U.S.C. § 2241 et

seq.].” 42 U.S.C. § 16911(1), (5)(A)(i), (iii).

Faulls contends that because interstate domestic violence

is not one of the enumerated crimes that qualifies as a sex

offense under SORNA, see § 16911(5)(A)(iii), the inquiry ends

13

there, and the district court erred. Faulls is incorrect,

however, because the statute also provides other definitions of

a sex offense, including an offense with an element “involving a

sexual act or sexual contact with another.” § 16911(5)(A)(i).

The government says that Faulls’s interstate domestic

violence conviction satisfies this definition. The government’s

argument begins with the offense elements of interstate domestic

violence, which are (1) the defendant and victim are spouses or

intimate partners; (2) the defendant caused the victim to travel

in interstate commerce by force, coercion, duress, or fraud;

(3) the defendant, in the course of or to facilitate such

travel, committed a crime of violence against the victim; and

(4) the defendant committed such acts knowingly and willfully.

18 U.S.C. § 2261(a)(2). Here, the government alleged kidnapping

under § 1201(a)(1) and aggravated sexual abuse under

§ 2241(a)(2) as the underlying crimes of violence. The jury

convicted Faulls of kidnapping and also found beyond a

reasonable doubt that Faulls had committed aggravated sexual

abuse.

Interstate domestic violence also contains a penalty

enhancement for offenders whose qualifying violent conduct

constitutes sexual abuse under chapter 109A, including

aggravated sexual abuse. See §§ 2241, 2261(b)(4). Because the

jury found that Faulls committed aggravated sexual abuse, he

14

faced an increased statutory maximum penalty ranging from five

years’ imprisonment to “any term of years or life” imprisonment.

§§ 2241(a), 2261(b)(4)–(5).

The government contends that the statutory enhancement is

an “element” of the interstate domestic violence offense under

Apprendi v. New Jersey, 530 U.S. 466 (2000), which in turn means

that it is also an element of the offense for purposes of

determining whether Faulls was convicted of a sex offense under

SORNA. Because aggravated sexual abuse “requires engaging in a

sexual act, [which] . . . necessarily requires physical contact”

with another, United States v. White, 782 F.3d 1118, 1137 (10th

Cir. 2015), the government contends that Faulls was convicted of

“a criminal offense that has an element involving a sexual act

or sexual contact with another,” 42 U.S.C. § 16911(5)(A)(i), and

accordingly, was subject to sex offender registration under

SORNA. We agree with the government’s conclusion but not its

reasoning.

3.

The Constitution requires a jury to find, beyond a

reasonable doubt, the elements of the criminal offense charged.

In Apprendi, the Supreme Court held that this bedrock principle

also applies to sentencing, declaring that “[o]ther than the

fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be

15

submitted to a jury, and proved beyond a reasonable doubt.” 530

U.S. at 490. Thus, the distinction between a substantive

offense element and a sentencing (or penalty) enhancement is

meaningless when the enhancement requires facts or

circumstances—separate from those composing the base offense—to

have taken place in order to trigger a greater punishment than

the base offense statutorily carries. Id. at 476–78 & n.4.

In Alleyne v. United States, the Court extended this rule

to facts that increase the prescribed statutory minimum penalty—

i.e., facts that establish a new or higher mandatory minimum

sentence. 133 S. Ct. 2151, 2162–63 (2013). The Court reasoned

that the “impossib[ility] [of] disput[ing] that facts increasing

the legally prescribed floor aggravate the punishment” leads to

the logical conclusion that “the core crime and the fact

triggering the mandatory minimum sentence together constitute a

new, aggravated crime, each element of which must be submitted

to the jury.” Id. at 2161 (emphasis omitted).

Here, the jury found Faulls guilty of interstate domestic

violence. For purposes of enhancing Faulls’s sentence, the jury

also found beyond a reasonable doubt that Faulls had committed

aggravated sexual abuse. Relying on Apprendi and Alleyne, the

government contends that the jury’s finding also necessarily

means that aggravated sexual abuse is an element of the charged

interstate domestic violence offense for purposes of SORNA. We

16

do not agree. The fact that a jury made the finding necessary

for the sentencing enhancement certainly cures any Apprendi

issue, but it does not answer the statutory question of whether

that same finding is an “element” of Faulls’s “offense” under

§ 16911(5)(A)(i).

The government directs us to United States v. Campbell, 259

F.3d 293 (4th Cir. 2001), as support for its view, but that case

is inapposite. In Campbell, we held that the penalty

enhancements in 18 U.S.C. § 111(b) were substantive elements of

the offense that needed to be proved to the jury beyond a

reasonable doubt, not sentencing enhancements the court could

deem satisfied despite the jury’s opposite finding. 259 F.3d at

298–300. But there we were conducting a constitutional inquiry.

See also, e.g., United States v. Brown, 757 F.3d 183, 188 (4th

Cir. 2014) (observing that the drug quantity attributable to the

conspiracy, as provided in the penalty subsection of 21 U.S.C.

§ 841, was a question for the jury under Alleyne because of the

mandatory minimum sentences each quantity category carried),

cert. denied, 135 S. Ct. 229 (2014); United States v. Promise,

255 F.3d 150, 156–57 (4th Cir. 2001) (en banc) (holding the same

under Apprendi). The statutory question here is substantially

different.

Accordingly, we must look elsewhere for guidance. Recall

that for SORNA’s sex-offender registration requirements to

17

properly apply to Faulls, he must have been convicted of a

“criminal offense that has an element involving a sexual act or

sexual contact with another.” 42 U.S.C. § 16911(5)(A)(i)

(emphasis added). Recently, in United States v. Price, 777 F.3d

700 (4th Cir.), cert. denied 135 S. Ct. 2911 (2015), we

confronted the question of whether the defendant was convicted

of a sex offense in order to determine whether SORNA’s sex-

offender registration requirements should apply. Although we

were analyzing SORNA’s definition of a sex offense in

§ 16911(5)(A)(ii) (“specified [criminal] offense against a

minor”) and its extension at § 16911(7) (expanding subsection

(5)(A)(ii)’s definition), we nonetheless examined the statutory

language of § 16911(5)(A)(i). Id. at 707–08. In holding that

the facts-based “circumstance-specific” approach applies to a

sex offense determination under § 16911(5)(A)(ii), (7), we noted

in dicta that Congress’s use of “elements” in § 16911(5)(A)(i)

(the subsection before us now) “implicat[es] the categorical and

modified categorical frameworks.” Id. at 708. 3

Other courts of appeals have also found these frameworks

relevant to the determination of what constitutes a sex-offense

3

Cf. United States v. Berry, 814 F.3d 192, 195 (4th Cir.

2016) (providing that courts have “embraced” the categorical and

modified categorical approaches in determining a sex offender’s

tier classification).

18

under SORNA, although none has squarely applied them in the

precise context before us. See United States v. Rogers, 804

F.3d 1233, 1234–38 (7th Cir. 2015) (affirming the district

court’s decision to enhance defendant’s sentence under Guideline

§ 2A3.5(b)(1)(A) for committing a sex offense while in failure-

to-register status, and finding that the categorical approach

applies to the threshold definition of a sex offense under

§ 16911(5)(A)(i)); United States v. Gonzalez-Medina, 757 F.3d

425, 430 (5th Cir. 2014) (distinguishing § 16911(5)(A)(i) from

§ 16911(5)(C), and applying the circumstance-specific approach

to the defendant’s prior state conviction for having sexual

intercourse with a child age sixteen or older), cert. denied,

135 S. Ct. 1529 (2015); United States v. Mi Kyung Byun, 539 F.3d

982, 991-92 (9th Cir. 2008) (comparing § 16911(5)(A)(i) to

§ 16911(7)(I), and applying the circumstance-specific approach

to the defendant’s federal conviction for importation of an

alien for purposes of prostitution). Following the lead of

Price and our sister circuits, we proceed here to apply the

categorical and modified categorical approaches.

Thus, we “focus[] solely on the elements” of interstate

domestic violence, rather than on “the specific way in which

[Faulls] committed the crime,” to determine whether interstate

domestic violence qualifies as a criminal offense with an

element involving a sexual act or contact. Price, 777 F.3d at

19

704-05 (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)). 4 In

applying the traditional categorical approach, we compare the

elements of the defendant’s offense of conviction to the

elements of the federal offense (also called the “generic”

offense). There is a categorical match if “[t]he elements

comprising the statute of conviction [are] the same as, or

narrower than, those of the generic offense.” Id. at 704; e.g.,

United States v. Torres-Miguel, 701 F.3d 165, 168–69 (4th Cir.

2012) (finding no categorical match between defendant’s

California felony threat conviction and a “crime of violence”

under the U.S. Sentencing Guidelines because threatening to

commit a crime against another that will result in death or

serious injury (crime of conviction) does not necessarily

require “the use, attempted use, or threatened use of physical

force against [another]” (generic offense)).

4 The district court did not have the benefit of our

decision in Price, and neither party on appeal has urged that we

apply the elements-based approach to determine whether Faulls

was convicted of a sex offense. Although we generally do not

consider issues not passed upon below, the question before us is

purely one of law, and we perceive no injustice or unfair

surprise in doing so here. See Singleton v. Wulff, 428 U.S.

106, 120–21 (1976) (“The matter of what questions may be taken

up and resolved for the first time on appeal is one left

primarily to the discretion of the courts of appeals, to be

exercised on the facts of individual cases.”). Nor are we are

bound by the district court’s reasoning—or the arguments

advanced by the parties—in exercising our plenary review.

United States v. Segers, 271 F.3d 181, 183 (4th Cir. 2001);

United States v. Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).

20

The modified categorical approach is almost identical, but

it applies only to divisible statutes—those containing

alternative elements—and it entails a brief “detour.” Price,

777 F.3d at 705. Before looking for a categorical match, we

consider a limited number of trial documents, including the

indictment and jury instructions, to determine which alternative

element formed the basis of the conviction. Descamps v. United

States, 133 S. Ct. 2276, 2284–85 (2013). Then the traditional

elements-based approach resumes. Id.; e.g., United States v.

Castleman, 134 S. Ct. 1405, 1414 (2014) (applying the modified

categorical approach to a Tennessee statute that defined assault

in three distinct ways, and finding that the defendant’s

conviction for “intentionally or knowingly caus[ing] bodily

injury to the mother of his child” qualified as a misdemeanor

crime of domestic violence under 18 U.S.C. § 922(g)(9) because

it “necessarily involve[d] the use of physical force” (internal

quotation marks omitted)).

Under either approach, we compare the elements of

interstate domestic violence with the generic offense—here,

SORNA’s definition of a sex offense: “a criminal offense that

has as an element involving a sexual act or sexual contact with

another.” 42 U.S.C. § 16911(5)(A)(i). As relevant, to be

convicted of interstate domestic violence, the defendant must

commit an underlying crime of violence against a spouse or

21

intimate-partner victim. See 18 U.S.C. § 2261(a)(2). A crime

of violence is defined as

[A]n offense that has an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or any other offense

that is a felony and that, by its nature, involves a

substantial risk that physical force against the

person or property of another may be used in the

course of committing the offense.

§ 16.

It is well established that some sex offenses qualify as

crimes of violence. See U.S. Sentencing Guidelines Manual

§ 4B1.2, comment. (n.1) (U.S. Sentencing Comm’n 2012)

[hereinafter U.S.S.G. § 4B1.2] (including “forcible sex

offenses” in the enumerated list of established crimes of

violence); United States v. Peterson, 629 F.3d 432, 435 (4th

Cir. 2011) (calling the Guidelines commentary “authoritative and

binding”). But a crime of violence is not necessarily a sex

offense, which means that interstate domestic violence

necessarily “‘sweeps more broadly’ and criminalizes more conduct

than the generic federal” sex offense, precluding a categorical

match. Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)

(quoting Descamps, 133 S. Ct. at 2283).

As a result, we consider whether interstate domestic

violence is divisible for purposes of the modified categorical

approach, meaning it must “set[] out one or more elements of the

offense in the alternative.” Descamps, 133 S. Ct. at 2281. In

22

Descamps v. United States, the Supreme Court found that

California’s burglary statute “d[id] not concern any list of

alternative elements” but rather “involve[d] a simple

discrepancy” between generic burglary, which requires unlawful

entry, and California’s statute, which does not. Id. at 2285.

So although California’s statute was defined using disjunctive

elements, see Cal. Penal Code Ann. § 459 (West 2010) (defining

burglary as the entering of certain locations “with intent to

commit grand or petit larceny or any felony” (emphasis added)),

and therefore “refer[red] to several different crimes,”

Descamps, 133 S. Ct. at 2284 (quoting Nijhawan, 557 U.S. at 35),

none of those crimes required breaking and entering. Because

California’s burglary statute did not match the generic version

of burglary envisioned by the federal statute, applying the

modified categorical approach was improper.

We grappled with the reach of Descamps in United States v.

Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013). There, we

announced that “[w]here the statute defines the offense broadly

rather than alternatively, the statute is not divisible, and the

modified categorical approach simply ‘has no role to play.’”

Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct.

at 2285). Although we did not explain the broad–alternative

distinction, we found that the divisibility determination turns

23

on the availability of a categorical fit, and not on the strict

statutory inclusion of textual alternatives.

In deciding whether a Maryland child abuse conviction

constituted a crime of violence for sentencing purposes, we said

that the disjunctive state statute was “generally divisible”

because the offender could be either a family member or an

individual with responsibility for the child’s supervision,

either physical abuse or sexual abuse constituted the abuse

element of the statute, and sexual abuse could be alternatively

defined as sexual molestation or sexual exploitation. Id. at

352 (defining the elements of Md. Code Ann., Crim. Law § 35C).

But general divisibility, we said, was not enough: “[O]nly if at

least one of the categories into which the statute may be

divided constitutes, by its elements, [the generic federal

offense]” is the statute divisible “for purposes of applying the

modified categorical approach.” Id. Because no arrangement of

the state child-abuse statute’s alternative elements lined up

with the elements of a crime of violence, we found the statute

indivisible. Id.

Applying these cases to the particular statute before us,

we hold that Faulls’s crime of conviction encompasses, by its

crime of violence element, additional, alternative offense

elements, “effectively creat[ing] several different crimes.”

Descamps, 133 S. Ct. at 2285. This is so because a defendant

24

convicted of interstate domestic violence may have committed,

for example, assault with a deadly weapon, murder, or sexual

assault as the underlying crime of violence. See, e.g., United

States v. Barnette, 644 F.3d 192, 197–98 (4th Cir. 2011)

(murder); United States v. Brown, 295 F.3d 152, 153–54 (1st Cir.

2002) (sexual assault); United States v. Bowe, 309 F.3d 234, 236

(4th Cir. 2002) (assault with a deadly weapon).

Admittedly, the offense of interstate domestic violence

presents an unusual set of circumstances for the divisibility

analysis. To begin with, the offense does not set out on its

face, in the disjunctive or otherwise, a list of alternative

crimes that constitute the offense, but rather requires the

defendant to commit an underlying “crime of violence.” This

case also requires that we compare a contemporaneous federal

conviction—rather than (as is more typical) a prior, state

conviction—to the generic federal offense.

But these anomalies have no bearing on the modified

categorical approach’s application here. See United States v.

Ortiz-Gomez, 562 F.3d 683, 684–85 (5th Cir. 2009) (applying the

modified categorical approach to a state statute criminalizing

the communication of a threat to “commit any crime of violence”

to determine what underlying crime of violence supported the

25

defendant’s conviction). 5 Importantly, in a prosecution for

interstate domestic violence, the jury is charged with finding,

unanimously and beyond a reasonable doubt, the commission of a

specific underlying crime of violence, as well as the elements

of that offense. See Omargharib, 775 F.3d at 198–99 (looking to

how the Virginia courts instruct juries with respect to larceny

to determine whether the offense is defined to include multiple

alternative elements); United States v. Royal, 731 F.3d 333, 341

(4th Cir. 2013) (same, with Maryland assault statute).

Interstate domestic violence therefore consists of multiple

alternative elements, as we define them for modified categorical

approach purposes: “Elements, as distinguished from means, are

factual circumstances of the offense the jury must find

‘unanimously and beyond a reasonable doubt.’” Omargharib, 775

F.3d at 198 (quoting Royal, 731 F.3d at 341).

Treating interstate domestic violence as divisible for

purposes of the modified categorical approach dovetails with the

inquiry’s function and harmonizes its purpose. “The point of

the categorical inquiry [after all] is not to determine whether

5

And as Judge Shedd’s concurrence notes, we have applied

the categorical approach to instant offenses when determining

whether the defendant should be sentenced as a “career offender”

under the Sentencing Guidelines for having committed a “crime of

violence.” See United States v. Johnson, 953 F.2d 110, 114 (4th

Cir. 1991); accord United States v. Martin, 215 F.3d 470, 474

(4th Cir. 2000).

26

the defendant’s conduct could support a conviction for a [sex

offense], but to determine whether the defendant was in fact

convicted of a crime that qualifies as a [sex offense].”

Cabrera-Umanzor, 728 F.3d at 350.

Here, without looking to the relevant documents in the

record, we would have no way of knowing whether Faulls’s

conviction constitutes a sex offense because we do not know from

the facial elements of § 2261(a)(2) what underlying offense

substantiated the finding of domestic violence. But when we

look to the jury instructions and the indictment, we see that

the underlying crime of violence—aggravated sexual abuse—and its

elements were put to the jury and found unanimously beyond a

reasonable doubt. See Supp’l J.A. 615, 650–55; J.A. 11. This

analysis thus furthers the categorical framework’s purpose

without frustrating its goal of “avoid[ing] conducting ‘mini-

trials’ for each prior offense.” United States v. Gomez, 690

F.3d 194, 200 (quoting United States v. Spence, 661 F.3d 194,

198 (4th Cir. 2011)).

Our interpretation also comports with our past practice.

See, e.g., United States v. Rivers, 595 F.3d 558, 563 (4th Cir.

2010) (“[O]nly when a statute prohibits different types of

behavior such that it can be construed to enumerate separate

crimes can a court modify the categorical approach . . . .”);

Gomez, 690 F.3d at 198 (applying the modified approach when

27

“different types of behavior satisfy an element of the offense

and the proscribed behaviors constitute at least two separate

crimes”). And it is consistent with the practice of our sister

circuits. See, e.g., United States v. Mahone, 662 F.3d 651, 654

(3d Cir. 2011) (calling for the modified approach “[w]hen the

enumerating statute invites inquiry”), abrogated on other

grounds by Descamps, 133 S. Ct. 2276; United States v. Williams,

627 F.3d 324, 327–28 (8th Cir. 2010) (providing that the

modified categorical approach is used when “the conviction

criminalizes both conduct that does and does not qualify as [the

generic federal offense]”).

Our holding also aligns with SORNA’s legislative goal of

“strengthen[ing] and increas[ing] the effectiveness of . . . sex

offender registration and notification [for the protection of

the public]”. United States v. Gould, 568 F.3d 459, 464 (4th

Cir. 2009) (quoting The National Guidelines for Sex Offender

Registration and Notification, 73 Fed. Reg. 38030, 38030 (July

2, 2008)); see also Taylor v. United States, 495 U.S. 575, 581–

90 (1990) (looking to the statutory background and purpose of

the ACCA to determine how to apply the categorical approach to

the state offense at issue).

Congress passed SORNA to fill the “gaps” and “loopholes”

left by its predecessor act’s “patchwork” standards, which

“allowed for numerous heinous crimes” to be unaffected by

28

registration requirements. Gould, 568 F.3d at 473–74. It would

make little sense, then, in the context of a law that was

designed to bolster public protection through comprehensive sex-

offender registration, to bar courts from peering behind the

statutory curtain to determine what offense the defendant

actually committed when the offense of conviction contains as an

element another generic federal crime acting as a placeholder

for the substantive offense.

In sum, because aggravated sexual abuse “involv[es] a

sexual act or sexual contact with another,” Faulls was convicted

of a criminal offense that “has an element involving a sexual

act or sexual contact with another”—a sex offense. 42 U.S.C.

§ 16911(5)(A)(i). Accordingly, the district court did not err

in requiring Faulls to register as a sex offender under SORNA.

III.

For the reasons given, we affirm the district court’s

judgment.

AFFIRMED

29

SHEDD, Circuit Judge, concurring:

The majority applies the categorical approach to determine

if Faulls’s conviction for interstate domestic violence is a

“sex offense” under 18 U.S.C. § 16911(5)(A)(i). Regardless of

whether the categorical approach should apply to past

convictions under this section, if I were deciding this issue on

a clean slate, I would not apply it in the context of this case,

which involves an instant offense. As the Tenth Circuit has

explained, “the practical difficulties of conducting an ad hoc

mini-trial” that drive us to apply the categorical approach to a

past conviction “do not apply when the court is examining the

conduct of the defendant in the instant offense.” United States

v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (quotation

marks and alterations omitted); see also United States v.

Williams, 690 F.3d 1056, 1069 (8th Cir. 2012) (same).

The categorical approach does not save judicial resources

because we are continuously called upon to determine whether

past convictions—on a state-by-state basis—qualify as predicate

offenses in multiple contexts, including sentencing. This

situation has left “[t]he dockets of our court . . . clogged

with these cases.” United States v. Vann, 660 F.3d 771, 787 (4th

Cir. 2011) (Agee, J., concurring). Further, the categorical

approach is the antithesis of individualized sentencing; we do

not consider what the individual to be sentenced has actually

30

done, but the most lenient conduct punished by his statute of

conviction. This flaw is even more apparent in cases like this

one, involving instant offenses: the district judge sat through

Faulls’s trial, heard the evidence against him, and witnessed

the jury’s finding that Faulls committed aggravated sexual abuse

against his wife. The categorical approach then requires the

“counter-intuitive procedure” whereby that same judge “must

ignore the actual trial record and the facts and inferences

drawn from the testimony” to determine if Faulls’s conviction

was for a “sex offense.” United States v. Stoker, 706 F.3d 643,

651 (5th Cir. 2013) (Jones, J., concurring).

Notwithstanding my view, however, circuit precedent rejects

this distinction between past convictions and instant offenses.

See United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1991)

(noting the “substantial intuitive appeal” of applying a

circumstance-specific approach to instant offenses but

nonetheless concluding that the approach “must . . . be

rejected”); United States v. Martin, 215 F.3d 470, 474 (4th Cir.

2000) (applying categorical approach to instant conviction “no

matter how clear it may be from the record” that the defendant

committed a crime of violence). I therefore concur in Judge

Diaz’s thoughtful opinion for the court.

31