applying noncategorical approach where the statute “cover[ed] ‘any conduct that by its nature is a sex offense against a minor’” (quoting 34 U.S.C. § 20911 )
How later courts described this case
- applying noncategorical approach where the statute “cover[ed] ‘any conduct that by its nature is a sex offense against a minor’” (quoting 34 U.S.C. § 20911 )
- “If [defendant] is correct that her sentence violates the law, then her waiver is unenforceable. If she is incorrect, she has waived her right to appeal. Thus, we turn to the merits of her appeal to determine whether the waiver may be enforced.”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10134
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-0226-
GMN-PAL
JAZZMIN DAILEY, AKA Jazziee,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted September 9, 2019
San Francisco, California
Filed November 4, 2019
Before: Ronald M. Gould, Carlos T. Bea,
and Michelle T. Friedland, Circuit Judges.
Opinion by Judge Bea
2 UNITED STATES V. DAILEY
SUMMARY *
Criminal Law
The panel dismissed an appeal from the district court’s
imposition of a probation condition requiring the defendant
to register as a sex offender pursuant to the Sex Offender
Notification and Registration Act, in a case in which the
defendant pleaded guilty to violating the Travel Act based
on an incident in which she transported a minor across state
lines for the purpose of having the minor engage in
prostitution.
Because the text and structure of SORNA’s residual
clause make it clear the clause requires the application of a
non-categorical approach to determine whether a conviction
is for an offense involving “any conduct that by its nature is
a sex offense against a minor,” the panel concluded that
Department of Justice guidelines interpreting the residual
clause as requiring the categorical approach are not entitled
to Chevron deference. Because the defendant’s plea
agreement and plea colloquy each contained an admission
that the victim was a juvenile, the panel, applying the non-
categorical approach, held that it is clear that the defendant’s
conviction was for an offense committed “against a minor.”
Rejecting the defendant’s argument that there is no “sex
offense” where the minor never completed an act of
prostitution, the panel wrote that driving a minor to Las
Vegas, buying her provocative clothing, instructing her on
the unwritten rules of prostitution, and renting a hotel room,
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. DAILEY 3
all with the intent that the minor engage in acts of
prostitution, certainly qualifies as “conduct that by its nature
is a sex offense against a minor.” The panel concluded that
the defendant is therefore required to register as a sex
offender pursuant to SORNA.
The panel rejected the defendant’s argument that she did
not have adequate notice before sentencing that she would
be required to register, and concluded that the district court
did not delegate the Article III judicial power in imposing
the sentence.
Because the sentence was legally imposed, the panel
concluded that the appellate waiver in the defendant’s plea
agreement is enforceable, and dismissed the appeal.
COUNSEL
Jaya C. Gupta (argued) and Kathleen Bliss, Kathleen Bliss
Law PLLC, Henderson, California, for Defendant-
Appellant.
Elham Roohani (argued), Assistant United States Attorney;
Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich,
United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. DAILEY
OPINION
BEA, Circuit Judge:
Jazzmin Dailey pleaded guilty to violating 18 U.S.C.
§ 1952(a)(3)(A) (“the Travel Act”) based on a June 2015
incident in which Dailey transported a minor across state
lines for the purpose of having the minor engage in
prostitution. Dailey was sentenced to three years of
probation and ordered by the district court to register as a sex
offender pursuant to the Sex Offender Registration and
Notification Act (“SORNA”), 34 U.S.C. § 20901, et seq.
On appeal, Dailey makes three arguments challenging
the legality of the condition requiring her to register as a sex
offender. First, she argues the district court imposed an
illegal sentence by requiring her to register as a sex offender
because she was not convicted of a “sex offense.” Next, she
argues the district court did not provide her adequate pre-
sentencing notice that she would be required to register as a
sex offender under SORNA. And finally, she argues the
district court delegated the Article III power to impose a
criminal sentence by leaving the determination whether
Dailey would be required to register as a sex offender to the
probation office or state officials. For the reasons below, we
reject all three arguments, conclude that the sentence was
legally imposed, and dismiss the appeal based on the
enforceable appellate waiver in Dailey’s plea agreement.
BACKGROUND
Dailey and her juvenile victim, T.B., were arrested on
June 16, 2015, in an area of Las Vegas known for its high
prostitution activity. When asked to produce identification,
T.B. told the officer that she was 16 years old, and a
subsequent records check revealed that T.B. was a missing
UNITED STATES V. DAILEY 5
juvenile from Chandler, Arizona. Dailey told investigators
she believed T.B. was 20 years old.
T.B. later told a detective from the Child Exploitation
Task Force that she had traveled from Arizona to Las Vegas
to celebrate Dailey’s birthday as part of a four-person group
with Dailey, another woman, and a 48-year-old male. T.B.
had joined the group at the invitation of the third woman,
and when the other woman and T.B. went to rendezvous with
Dailey, they first met the male, who told them, “I have a girl
coming, she’ll be the boss; she handles everything.” Shortly
thereafter, Dailey arrived in a rented car.
Dailey drove the group to a clothing store, where she
purchased provocative, skimpy clothing for the women.
While at the store, T.B. became aware that Dailey intended
for T.B. to engage in prostitution once they arrived in Las
Vegas. Dailey then drove the group to Las Vegas, instructing
them on the unwritten rules of prostitution in the car. Among
other things, Dailey instructed the women to “text a smiley
face symbol to [her]” if they “[got] a trick.” Dailey also
rented a room at the Orleans Hotel and Casino for the
women. Dailey secured a firearm in her room, and,
according to T.B., Dailey told the women, “[i]f you get
caught or say something about us, we’ll kill you.”
In August 2015, a grand jury returned an indictment
against Dailey. She was charged with one count of
transportation of a minor for prostitution, in violation of
18 U.S.C. § 2423(a), (e) and one count of attempted sex
trafficking of a minor, in violation of 18 U.S.C.
§§ 1591(a)(1), (b)(2) and 1594(a), (b). Eventually, Dailey
pleaded guilty to one count of violating the Travel Act,
which criminalizes traveling in interstate commerce with the
intent to commit an “unlawful activity.” See 18 U.S.C.
§ 1952(a)(3). A variety of unlawful activities may trigger a
6 UNITED STATES V. DAILEY
violation of the Travel Act, none of which require that the
unlawful activity involve a victim of minor age. See id.
at § 1952(b).
However, in her plea agreement and during the plea
colloquy, Dailey admitted that T.B. was a juvenile and that
Dailey drove T.B. from Arizona to Nevada with the intent
that T.B. would engage in prostitution. Dailey further
admitted that she took steps to facilitate T.B.’s prostitution
by instructing her in the rules of prostitution, purchasing
provocative clothing, and renting a hotel room in Las Vegas.
The plea agreement contained a notice that Dailey “may be
required to register as a sex offender under the laws of the
state of her residence.” At the change of plea hearing, the
government reiterated the plea agreement’s provision
involving sex offender registration requirements under
federal law. An additional provision in the plea agreement
acknowledged that Dailey waived her right to appeal any
sentence falling within the sentencing guideline range or
“any other aspect of the conviction or sentence and any order
of restitution or forfeiture.”
After Dailey pleaded guilty, and prior to her sentencing
hearing, the probation office prepared a presentence report
(PSR) recommending Dailey be sentenced to 46 months
imprisonment followed by three years of supervised release.
The PSR also stated that while on supervised release Dailey
“shall comply with . . . the following mandatory
condition[]”:
5. You must comply with the requirements of
the Sex Offender Registration and
Notification Act (42 U.S.C. § 16901, et seq.)
as directed by the probation officer, the
Bureau of Prisons, or any state sex offender
registration agency in which you reside,
UNITED STATES V. DAILEY 7
work, are a student, or were convicted of a
qualifying offense.
Dailey did not object to the PSR.
The district court held Dailey’s sentencing hearing in
March 2018. Announcing that she would “vary downward
for [Dailey] and take a chance,” the district judge sentenced
Dailey to no imprisonment and three years of probation,
citing her vulnerability, remorse, and otherwise good
behavior. The district judge also stated the terms of Dailey’s
probation would include the “standard and mandatory
conditions of probation” from the PSR. The district court’s
written judgment contained an identical provision to the
PSR’s statement that Dailey “must comply with the
requirements of the Sex Offender Registration and
Notification Act (SORNA) as directed by” probation or state
officials. Dailey was subsequently required to register as a
sex offender in her state of residence, Arizona.
Dailey now appeals her sentence, arguing the district
court erroneously required her to register as a sex offender.
She also argues the district court failed to provide her
adequate notice of the registration requirement before it
sentenced her and that the court delegated its Article III
powers to probation officials. Because Dailey challenges the
legality of her sentence, she further argues she is not bound
by the terms of the appellate waiver in her plea agreement.
STANDARD OF REVIEW
We review whether a defendant has waived her right to
appeal de novo. United States v. Bibler, 495 F.3d 621, 623
(9th Cir. 2007).
8 UNITED STATES V. DAILEY
We also review de novo “[w]hether a supervised release
condition illegally exceeds the permissible statutory penalty
or violates the Constitution,” United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009), and the “adequacy of a
district court’s notice of its intent to upwardly depart” from
sentencing guidelines, United States v. Evans-Martinez,
530 F.3d 1164, 1167 (9th Cir. 2008). When a defendant does
not make a timely objection at sentencing to the adequacy of
the notice, however, the claim is reviewed for plain error. Id.
Plain error is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625,
631 (2002) (citation, alteration, and internal quotation marks
omitted). If those conditions are met, “an appellate court
may exercise its discretion to notice a forfeited error that
(4) ‘seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” United States v.
Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc)
(quoting Cotton, 535 U.S. at 631).
A district court’s imposition of probation conditions is
reviewed for abuse of discretion. See United States v.
Williams, 356 F.3d 1045, 1052 (9th Cir. 2004).
DISCUSSION
A.
At the outset, the government argues Dailey’s appeal is
barred by the waiver in her plea agreement. There are,
however, several exceptions to waivers of the right to appeal.
“An appeal waiver will not apply if: 1) a defendant’s guilty
plea failed to comply with [Federal Rule of Criminal
Procedure] 11; 2) the sentencing judge informs a defendant
that she retains the right to appeal; 3) the sentence does not
comport with the terms of the plea agreement; or 4) the
sentence violates the law.” Bibler, 495 F.3d at 624. Among
UNITED STATES V. DAILEY 9
other things, a sentence that violates the law is a sentence “in
excess of the permissible statutory penalty for the crime,”
United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.
1986), a category that includes unlawful probation
conditions. See Watson, 582 F.3d at 987 (analyzing an
allegedly unlawful condition of supervised release despite
defendant’s appellate waiver).
Because the only potentially applicable exception here is
that her “sentence violates the law” by imposing an unlawful
probation condition, Dailey’s claim as to waiver rises and
falls with her claim on the merits. If she is correct that her
sentence violates the law, then her waiver is unenforceable.
If she is incorrect, she has waived her right to appeal. Thus,
we turn to the merits of her appeal to determine whether the
waiver may be enforced.
B.
Dailey’s primary argument is that she was wrongly
required to register under SORNA because her conviction
for violating the Travel Act did not constitute a “sex offense”
as defined in 34 U.S.C. § 20911 (formerly 42 U.S.C.
§ 16911). 1 She is incorrect.
SORNA did not create new substantive criminal law but
instead “establish[ed] a comprehensive national system for
the registration” of “sex offenders and offenders against
children.” 34 U.S.C. § 20901. Defendants are not directly
convicted of violating SORNA. Rather, the law applies to
1
SORNA was moved from Title 42 of the United States Code and
re-codified without amendment at 34 U.S.C. § 20901, et seq., in 2017.
There have been no relevant, substantive changes in the law since
Dailey’s Travel Act violation in 2015, and we therefore cite to SORNA
as it is presently codified.
10 UNITED STATES V. DAILEY
violations of existing state and federal criminal laws and
mandates the registration of a “sex offender” “in each
jurisdiction where the offender resides, where the offender
is an employee, and where the offender is a student.”
34 U.S.C. § 20913.
The determination whether someone is a “sex offender”
who is required to register is controlled by a series of
statutory definitions in Section 20911. According to Section
20911(1), the term “sex offender” means “an individual who
was convicted of a sex offense.” 34 U.S.C. § 20911(1). A
“sex offense,” in turn, is defined in Section 20911(5)(A) as
“a criminal offense that has an element involving a sexual
act or sexual contact with another,” 34 U.S.C.
§ 20911(5)(A)(i), or “a criminal offense that is a specified
offense against a minor,” 34 U.S.C. § 20911(5)(A)(ii). 2 The
term “specified offense against a minor” is defined in
Section 20911(7), which states the phrase “means an offense
against a minor that involves any of the following”:
(A) An offense (unless committed by a parent
or guardian) involving kidnapping.
(B) An offense (unless committed by a parent
or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
2
Section 20911(5)(A) also includes several enumerated federal
offenses, certain “military offense[s],” and the “attempt or conspiracy to
commit” a sex offense. 34 U.S.C. § 20911(5)(A)(iii)–(v).
UNITED STATES V. DAILEY 11
(E) Solicitation to practice prostitution.
(F) Video voyeurism as described in section
1801 of Title 18.
(G) Possession, production, or distribution of
child pornography.
(H) Criminal sexual conduct involving a
minor, or the use of the Internet to facilitate
or attempt such conduct.
(I) Any conduct that by its nature is a sex
offense against a minor.
34 U.S.C. § 20911(7).
Dailey argues that her Travel Act conviction was not for
a “sex offense” requiring registration under SORNA because
it contained neither “an element involving a sexual act or
sexual contact with another,” nor was it “a specified offense
against a minor.” See 34 U.S.C. § 20911(5)(A)(i)–(ii). The
government argues only that Dailey committed a specified
offense against a minor involving “conduct that by its nature
is a sex offense against a minor,” as described in Section
20911(7)(I)—a provision known as SORNA’s “residual
clause.” 3
3
At oral argument the government conceded that the record in this
case does not support a finding that Dailey was convicted of an offense
that involved soliciting a minor to practice prostitution, which would
qualify as a sex offense under Section 20911(7)(E). Because the
government does not argue Dailey’s Travel Act violation had “an
element involving a sexual act or sexual contact with another” or
qualified as any of specifically defined “specified offense[s] against a
12 UNITED STATES V. DAILEY
Dailey pleaded guilty to a single count of violating the
Travel Act, specifically to violating 18 U.S.C. § 1952(a)(3).
The elements of a violation of Section 1952(a)(3) are that a
person (1) travel in interstate commerce (or use the mail in
interstate commerce), (2) while possessing intent to facilitate
or engage in an “unlawful activity.” 18 U.S.C. § 1952 (a)(3).
An “unlawful activity” for Travel Act purposes is defined to
include “prostitution offenses in violation of the laws of the
State in which they are committed.” Id. at § 1952(b). A
Travel Act violation does not contain an element that the
offense be committed against a minor. Indeed, a Travel Act
violation does not necessarily require that a victim even
exist. Here, however, Dailey admitted to more than the
minimum conduct required for a Travel Act violation. Her
plea agreement and plea colloquy contained these key
admissions: (1) Dailey transported T.B. from Arizona to
Nevada with the intent that T.B. would engage in
prostitution; (2) Dailey took additional, affirmative steps to
facilitate T.B.’s prostitution, including instructing her in the
rules of prostitution, renting a hotel room, and buying
provocative clothing for T.B. to wear; and (3) T.B. was a
minor. 4 Only the first of these admissions was necessary to
secure a Travel Act conviction.
Appealing the district court’s order that she register as a
sex offender, Dailey argues that the residual clause applies
only to “convictions under statutes defining sexual offenses
in which the status of the victim as a minor is an element of
an offense.” See Office of the Attorney General, The
National Guidelines for Sex Offender Registration and
minor” in Section 20911(7)(A)–(H), we do not address Dailey’s
arguments on these matters.
4
Dailey did not admit to knowing that T.B. was a minor.
UNITED STATES V. DAILEY 13
Notification, 73 Fed. Reg. 38030, 38052 (July 2, 2008)
(hereinafter “SMART guidelines”) (emphasis added).
Because the Travel Act contains no such element, she asks
us to apply the “categorical approach” and hold she was not
convicted of a “sex offense.” Cf. Descamps v. United States,
570 U.S. 254, 261 (2013) (“The key [to the categorical
approach] . . . is elements, not facts.”). The alternative
method for determining whether a conviction is for a “sex
offense” as defined by the residual clause, which we call the
non-categorical approach, is to examine not just the elements
of the crime but also “the statutory definition, charging
document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge
to which the defendant assented.” See Shepard v. United
States, 544 U.S. 13, 16 (2005).
This is not the first time we have been asked to apply the
categorical approach to SORNA’s residual clause. In United
States v. Byun we declined to do so because the “best reading
of [SORNA’s] statutory structure and language is that
Congress contemplated a non-categorical approach as to the
age of the victim in determining whether a particular
conviction is for a ‘specified offense against a minor.’”
539 F.3d 982, 992 (9th Cir. 2008). However, since Byun was
decided, the Department of Justice issued guidelines
interpreting the residual clause as requiring the categorical
approach, 5 and we must decide whether these guidelines are
entitled to deference under Chevron v. National Resource
Defense Council. 467 U.S. 837 (1984); see also Nat’l Cable
5
Byun was decided on July 1, 2008. The SMART guidelines were
published in the Federal Register on July 2, 2008. Byun was amended on
August 24, 2008, to make changes to the caption, but the analysis
remained unchanged. The parties here agree that we should treat Byun
as having been decided before the SMART guidelines were published.
14 UNITED STATES V. DAILEY
& Telecommunications Ass’n v. Brand X Internet Servs.,
545 U.S. 967, 982 (2005).
In Byun, a nightclub owner in Guam pleaded guilty to
three counts of alien smuggling, a violation of 8 U.S.C.
§§ 1324 and 1328, and in her plea agreement admitted to
inducing an employee to come to Guam with the intent that
the employee “perform sexual acts for money.” 539 F.3d. at
984. Byun also acknowledged that she “knew [the
employee] was seventeen years old” at the time. Id. The
issue in Byun was nearly identical to the issue here: The
crimes to which Byun pleaded guilty required proof that she
“imported the alien for the purpose of having him or her
engage in prostitution or for some other immoral purpose,”
but they did not require proof that Byun’s victim was a
minor. Id. at 987. Thus, applying a non-categorical approach
to the residual clause, Byun was required to register as a sex
offender, but under a categorial approach she would not have
been.
In determining the residual clause called for a non-
categorical approach, we looked to three aspects of the law.
First, while Section 20911(5)(A)(i) defines a sex offense as
“a criminal offense that has an element involving a sexual
act or sexual contact with another,” Section 20911(5)(A)(ii),
which alternatively defines a sex offense as “a criminal
offense that is a specified offense against a minor,” “contains
no reference to the crime’s ‘elements.’” See id. at 992.
Second, in Section 20911(7), which defines “a specified
offense against a minor,” the words “against a minor”
precede a general list of crimes—e.g., “kidnapping,” “false
imprisonment,” and “[u]se in a sexual performance”—that
do not reference the victim’s identity, suggesting, for
example, that “any kidnapping offense becomes a ‘specified
offense against a minor’ when the victim is a minor.” Id.
UNITED STATES V. DAILEY 15
Finally, and most pointedly, the residual clause covers “any
conduct that by its nature is a sex offense against a minor.”
34 U.S.C. § 20911 (emphasis added). The use of “conduct”
in the residual clause, as opposed to “conviction,” strongly
indicates a non-categorical approach applies. Byun, 539 F.3d
at 992; cf. Taylor v. United States, 495 U.S. 575, 600 (1990)
(use of “convicted” rather than “committed” in a statute
shows Congressional intent for application of the categorical
approach).
However, against these three strong indicators that the
residual clause calls for a non-categorical approach, we did
note there exists “a modicum of ambiguity” created by
Section 20911(1), which defines a sex offender as someone
who has been “convicted” of a sex offense. Byun, 539 F.3d
at 992. But this slight amount of ambiguity was not enough
to alter the conclusion that our “best reading of the statutory
structure and language” required the use of a non-categorical
approach. Id.
In asking us to reach an opposite conclusion now, Dailey
argues that we must defer to the SMART guidelines, which
were adopted by the Attorney General pursuant to
Congressional authorization to “issue guidelines and
regulations to interpret and implement” SORNA. 34 U.S.C.
§ 20912. The guidelines call for use of the categorical
approach when determining whether a crime is a “sex
offense” under the residual clause:
The [residual] clause covers “[a]ny conduct
that by its nature is a sex offense against a
minor.” It is intended to ensure coverage of
convictions under statutes defining sexual
offenses in which the status of the victim as a
minor is an element of an offense, such as
specially defined child molestation or child
16 UNITED STATES V. DAILEY
prostitution offenses, and other offenses
prohibiting sexual activity with underage
persons.
73 Fed. Reg. at 38052 (emphasis added). If the SMART
guidelines dictate how we are to interpret the residual clause,
then Dailey is correct that her Travel Act conviction is not a
sex offense, because “the status of the victim as a minor” is
not an element of a Travel Act violation. See 18 U.S.C.
§ 1952(a)–(b).
However, we do not reflexively defer in the
interpretation of a statute when an agency has issued
guidelines. “If the intent of Congress is clear, that is the end
of the matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Congress.”
Chevron, 467 U.S. at 842–43. To determine whether a
statute is clear, a court must employ all the “traditional tools
of statutory construction.” Id. at 843 n.9. And, only when
these tools do not reveal a clear right answer to the “precise
question at issue,” may courts defer to reasonable agency
interpretations of statutes. Id. at 843.
Dailey makes two arguments that SORNA is “silent or
ambiguous with respect to the specific issue” whether the
categorical approach applies to the residual clause, which
could require us to defer to the SMART guidelines. See id.
First, she points to the definition of “sex offender” in Section
20911(1) as requiring someone be “convicted of a sex
offense.” This is the same provision in Byun that we noted
created a “modicum of ambiguity.” 539 F.3d at 992. Second,
she argues that the definitions in Section 20911 circularly
define a “sex offense” as it relates to the residual clause,
creating an inherent ambiguity. See 34 U.S.C. § 20911(1),
(7)(I). Neither of these arguments, however, convinces us
UNITED STATES V. DAILEY 17
that “Congress has not directly addressed the precise
question.” Chevron, 476 U.S. at 843.
Insofar as Dailey argues our decision in Byun requires us
to find the residual clause ambiguous, such that Chevron
deference is warranted, Dailey is mistaken. While Byun
noted “a modicum of ambiguity” on the issue, this reflected
the thoroughness of the analysis and the opinion’s
engagement with both sides of an argument, not a broader
holding that the residual clause is inherently ambiguous
about whether to apply the categorical approach. See
539 F.3d at 992. Byun stated the “best reading” of the statute
was to apply a non-categorical approach to the residual
clause, but because we were not asked to address the
applicability of the SMART guidelines, we were not
required to hold conclusively that the residual clause
unambiguously calls for the non-categorical approach. Id.;
see also Brand X Internet Servs., 545 U.S. at 982. Now,
faced with the question whether the only acceptable
interpretation of the residual clause is to apply a non-
categorical approach regarding the age of the victim, we hold
that it is.
The reasons for this holding are the same as they were in
Byun—the statutory text and structure are clear. In the statute
are three provisions that strongly suggest a non-categorical
approach—the lack of a reference to the crime’s “elements”
in Section 20911(5)(A)(ii), the words “against a minor”
preceding the general list of crimes in Section 20911(7), and,
most importantly, the word “conduct” in the residual clause
itself—and only one provision that may suggest otherwise—
the word “conviction” in Section 20911(1). The residual
clause, its parent section, and Section 20911(5)(A)(ii)
“point[] strongly toward a non-categorical approach with
regard to the age of the victim,” Byun, 539 F.3d at 991
18 UNITED STATES V. DAILEY
(emphasis added), and the only provision that may suggest
otherwise, Section 20911(1), is the furthest in proximity
from the residual clause itself. To the degree that any
ambiguity exists in the statute, it is exceedingly slight and is
resolved conclusively in favor of the non-categorical
approach using the “traditional tools of statutory
construction.” Chevron, 467 U.S. at 843 n.9. 6
Because Dailey’s plea agreement and plea colloquy each
contained an admission that T.B. was a juvenile, applying
the non-categorical approach, it is clear Dailey’s conviction
was for an offense committed “against a minor.”
Finally, Dailey argues, even if we apply a non-
categorical approach to the residual clause, her violation of
the Travel Act did not involve “conduct that by its nature is
a sex offense.” See 34 U.S.C. § 20911(7)(I). Her argument
is there was no “sex offense” because T.B. never completed
an act of prostitution. But, tellingly, most of the specifically
enumerated “specified offenses against a minor” in Section
20911(7)(A)–(H) do not require actual sexual contact yet
still qualify as “sex offenses.” Driving a minor to Las Vegas,
buying her provocative clothing, instructing her on the
unwritten rules of prostitution, and renting a hotel room, all
with the intent that the minor engage in acts of prostitution,
certainly qualifies as “conduct that by its nature is a sex
offense against a minor.” 34 U.S.C. § 20911(7)(I).
6
We also note that other circuit courts that have addressed this
question have arrived at the same conclusion. See United States v. Hill,
820 F.3d 1003, 1006 (8th Cir. 2016); United States v. Price, 777 F.3d
700, 709 n.9 (4th Cir. 2015); cf. United States v. Schofield, 802 F.3d 722,
730–31 (5th Cir. 2015) (finding the residual clause unambiguous but not
resolving whether a non-categorical approach applies).
UNITED STATES V. DAILEY 19
This conclusion is strengthened by our holding in Byun,
where, similarly, transportation of a minor with the intent the
minor engage in prostitution was a “sex offense,” even in the
absence of an act of actual prostitution. Byun, 539 F.3d
at 988 (“As a common sense matter, transporting a minor to
the United States with the intent that she engage in
prostitution is no less ‘conduct that by its nature is a sex
offense against a minor’ than is soliciting a minor to the
same end.”).
C.
Next, Dailey argues that the district court committed
plain error by failing to provide her adequate notice before
imposing SORNA registration as a probation condition. She
is mistaken.
The Federal Rules of Criminal Procedure require district
courts to allow attorneys to “comment on the probation
officer’s determinations and other matters relating to an
appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C).
Additionally, the Supreme Court has held Rule 32 requires
“the district court [to] give the parties reasonable notice”
before departing upward on a ground not identified “in the
presentence report or in a prehearing submission.” Burns v.
United States, 501 U.S. 129, 138 (1991). And, “[w]here a
condition of supervised release is not on the list of
mandatory or discretionary conditions in the sentencing
guidelines, notice is required before it is imposed.” United
States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004).
Here, Dailey’s argument fails for simple and obvious
reasons—SORNA registration was discussed in her plea
agreement, at her change of plea hearing, and as a
“mandatory condition” in the presentence report. Dailey had
adequate notice she may have been required to register under
20 UNITED STATES V. DAILEY
SORNA because “the record suggested the condition as a
possibility before it was imposed.” Id. at 1032.
Moreover, unlike the challenged probation condition in
Wise, Dailey complains of a mandatory condition of
probation. See 18 U.S.C. § 3563(a)(8). Because of the facts
set forth in Dailey’s plea agreement and plea colloquy, the
district court was obligated to impose the sex offender
registration requirement. Therefore, any deficiency in the
notice provided to Dailey that federal law requires her to
register as a sex offender did not affect Dailey’s “substantial
rights” or “seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings” and was not plain error.
Cotton, 535 U.S. at 631.
D.
Dailey’s final argument is that the district court
impermissibly delegated its Article III power and
responsibility to impose a criminal sentence by leaving the
determination of whether she must register as a sex offender
to probation and state officials. She is wrong.
“[A] probation officer may not decide the nature or
extent of the punishment imposed upon a probationer.”
United States v. Stephens, 424 F.3d 876, 881 (9th Cir. 2005)
(citation omitted). A district court may delegate “the details
of where and when the condition will be satisfied,” but it
alone must “make[] the determination of whether a
defendant must abide by a condition.” Id. at 880. This is
because, under the Constitution, the power to punish is
exclusively judicial. See id. at 881 (citing Ex parte United
States, 242 U.S. 27, 41–42 (1916)). Indeed, SORNA creates
a mandatory condition of probation but nonetheless requires
a sentencing court to impose compliance as “an explicit
UNITED STATES V. DAILEY 21
condition of a sentence of probation.” 18 U.S.C. § 3563(a)
(emphasis added).
In Stephens, we addressed whether a district court
ordering an offender “shall comply” with conditions of
release “as directed by the probation officer” constitutes a
“delegation of Article III judicial power,” and we held that
it does not. 424 F.3d at 882. This is because when the court
uses mandatory language such as “shall comply” regarding
probation conditions, the court has already “answered the
question of whether” the probation condition is required. Id.
All that is left for the probation officer is “the ministerial
task[] of choosing the appropriate” method for how the
offender will comply with the court’s condition. See id.
The district court’s written judgment ordered that Dailey
“must comply with the requirements of the Sex Offender
Registration and Notification Act (34 U.S.C. § 20901, et
seq.) as directed by the probation officer, the Bureau of
Prisons, or any state sex offender registration agency . . . .”
The court clearly directed Dailey to register as a sex offender
under SORNA. That federal probation officers or the local
sheriff may later tell Dailey how to register properly in a
given location is not a delegation of the Article III judicial
power.
CONCLUSION
The text and structure of SORNA’s residual clause make
it clear the clause requires the application of a non-
categorical approach to determine whether a conviction is
for an offense involving “any conduct that by its nature is a
sex offense against a minor.” The record supports the district
court’s determination that Dailey committed a “sex offense”
as defined by SORNA, and therefore she is required to
register as a sex offender pursuant to that law. Dailey had
22 UNITED STATES V. DAILEY
adequate notice before her sentencing that she would be
required to register, and the court did not delegate the Article
III judicial power in imposing the sentence. Dailey’s
sentence was legally imposed, and the appellate waiver in
her plea agreement is enforceable. For these reasons the
decision of the district court is
DISMISSED.