Petition for Writ of Certiorari — Thomas P. Thayer, Petitioner v. United States

Supreme Court briefMar 23, 2023

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No. _____

IN THE

Supreme Court of the United States

_______________

THOMAS P. THAYER,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

_______________

On Petition for a Writ of Certiorari

to the United States Court of Appeals for the Seventh Circuit

_______________

PETITION FOR A WRIT OF CERTIORARI

_______________

JESSICA ARDEN ETTINGER

Counsel of Record

FEDERAL DEFENDER SERVICES

OF WISCONSIN, INC.

22 East Mifflin Street, Suite 1000

Madison, Wisconsin 53703

(608) 260-9900

jessica_ettinger@fd.org

Counsel for Thomas Thayer

QUESTIONS PRESENTED

This Court has held that, where Congress makes the application of federal law

turn on a prior “conviction” that, “by its nature,” “involves” certain “conduct,” a categorical approach governs. Federal law conditions the requirement to register as a sex

offender on “convict[ion]” of a “sex offense,” and it defines “sex offense” (as relevant

here) as an “offense against a minor that involves . . . [a]ny conduct that by its nature

is a sex offense against a minor.” 34 U.S.C. §§ 20911(1), (5)(A)(ii), (5)(C), (7)(I). The

Seventh Circuit concluded that a circumstance-specific analysis governs whether a

prior conviction is a federal “sex offense.”

The questions presented are:

Did the Seventh Circuit err in holding that a circumstance-specific

approach applies to 34 U.S.C. §§ 20911(5)(A)(ii), (5)(C), (7)(I)?

If a categorical approach applies, then is Thomas Thayer’s prior

conviction under Minn. Stat. § 609.345(1)(b) a “sex offense”?

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

Petitioner is Thomas P. Thayer. Respondent is the United States of America.

No party is a corporation.

STATEMENT OF RELATED PROCEEDINGS

This case is directly related to the following proceedings:



Thayer v. United States, No. 22A593 (U.S.) (order,

granting extension of time to file a petition for a writ of

certiorari, entered Jan. 4, 2023).



United States v. Thayer, No. 21-2385 (7th Cir.) (judgment entered July 21, 2022; petition for rehearing en

banc denied Oct. 31, 2022).



United States v. Thayer, No. 20-cr-88 (W.D. Wis.) (report and recommendation entered Jan. 4, 2021; opinion

and judgment entered June 29, 2021).

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............................................................................................ i

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT .......................... ii

STATEMENT OF RELATED PROCEEDINGS ........................................................... iii

TABLE OF AUTHORITIES .......................................................................................... vi

PETITION FOR A WRIT OF CERTIORARI ................................................................. 1

OPINIONS AND RULINGS BELOW ............................................................................ 3

JURISDICTION.............................................................................................................. 3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED......................... 3

STATEMENT OF THE CASE ........................................................................................ 4

Federal law obligates individuals to register as “sex offenders” only if they have a prior conviction that is a “sex offense.” ......................................................................................................... 4

Thayer was charged with failing to register as a sex offender based on a prior Minnesota state conviction. ............................... 6

The district court dismissed the indictment. ........................................... 7

In a split panel decision, the Seventh Circuit reversed. .......................... 8

REASONS FOR GRANTING THE PETITION ........................................................... 11

The Seventh Circuit’s split decision is indefensible. ........................................ 11

The Seventh Circuit’s decision is at odds with this Court’s

precedents that interpret highly similar statutory language. ....................................................................................................... 13

The Seventh Circuit’s decision does not grapple with the

Fifth Amendment implications of a circumstance-specific

approach. ................................................................................................. 20

TABLE OF CONTENTS—Continued

Page

II.

The Seventh Circuit’s decision underestimates the pragmatic harm of adopting a circumstance-specific approach. ................... 22

Thayer’s prior conviction is not a “sex offense.” ..................................... 24

This case presents an excellent vehicle to resolve this exceptionally important question. .................................................................................... 25

CONCLUSION.............................................................................................................. 26

APPENDIX

A-1:

Opinion & Judgment, United States Court of Appeals for

the Seventh Circuit, United States v. Thayer, No. 21-2385

(July 21, 2022) ..........................................................................................1a

A-2:

Order, United States Court of Appeals for the Seventh Circuit, United States v. Thayer, No. 21-2385 (Oct. 31, 2022) ...................19a

A-3:

Opinion & Order, United States District Court for the

Western District of Wisconsin, United States v. Thayer,

No. 20-cr-88 (June 29, 2021) ..................................................................20a

A-4:

Report & Recommendation, United States District Court

for the Western District of Wisconsin, United States

v. Thayer, No. 20-cr-88 (Jan. 4, 2021) ...................................................27a

Relevant Statutory Provisions:

A-5:

Fifth and Sixth Amendments, United States Constitution ................. 40a

A-6:

18 U.S.C. § 2250 (2020) ......................................................................... 41a

A-7:

34 U.S.C. § 20911 (2020) ....................................................................... 42a

A-8:

Minn. Stat. § 609.345 (2003) ................................................................. 44a

A-9:

Minn. Stat. § 609.341 (2003) ................................................................. 48a

TABLE OF AUTHORITIES

Page(s)

Cases

Carr v. United States,

560 U.S. 438 (2010) ................................................................................................... 12

Descamps v. United States,

570 U.S. 254 (2013) ..................................................................................10, 11, 18, 23

Gundy v. United States,

139 S. Ct. 2116 (2019) ........................................................................................... 4, 26

James v. United States,

550 U.S. 192 (2007) ............................................................................................. 12, 14

Johnson v. United States,

576 U.S. 591 (2015) ........................................................................................12, 14–17

Kawashima v. Holder,

565 U.S. 478 (2012) ........................................................................................12, 14–17

Leocal v. Ashcroft,

543 U.S. 1 (2004) ....................................................................................................... 15

Mathis v. United States,

579 U.S. 500 (2016) ................................................................................................... 11

Mellouli v. Lynch,

575 U.S. 798 (2015) ................................................................................................... 16

Moncrieffe v. Holder,

569 U.S. 184 (2013).................................................................................................... 24

Nijhawan v. Holder,

557 U.S. 29 (2009) ....................................................................................11, 17, 18, 19

Sessions v. Dimaya,

138 S. Ct. 1204 (2018) ........................................................................ 11, 12, 14, 15, 24

Shular v. United States,

140 S. Ct. 779 (2020) ......................................................................................12, 14, 17

State v. Stephenson,

No. A05-417, 2006 WL 1319989 (Minn. Ct. App. May 16, 2006) ............................... 6

TABLE OF AUTHORITIES—Continued

Page(s)

Taylor v. United States,

495 U.S. 575 (1990). ........................................................... 9, 10, 12, 14, 18, 21, 23, 24

United States v. Barcus,

892 F.3d 228 (6th Cir. 2018) ..................................................................................... 18

United States v. Dailey,

941 F.3d 1183 (9th Cir. 2019) ................................................................................... 25

United States v. Davis,

139 S. Ct. 2319 (2019) ........................................................................ 10–12, 14–16, 18

United States v. Dodge,

597 F.3d 1347 (11th Cir. 2010) ................................................................................. 26

United States v. Helton,

944 F.3d 198 (4th Cir. 2019) ..................................................................................... 19

United States v. Hill,

820 F.3d 1003 (8th Cir. 2016) ................................................................................... 25

United States v. Morales,

801 F.3d 1 (1st Cir. 2015) .......................................................................................... 24

United States v. Navarro,

54 F.4th 268 (5th Cir. 2022) ................................................................................ 18, 23

United States v. Price,

777 F.3d 700 (4th Cir. 2015) ..................................................................................... 25

United States v. Rogers,

804 F.3d 1233 (7th Cir. 2015) ................................................................................... 19

United States v. Schofield,

802 F.3d 722 (5th Cir. 2015) ..................................................................................... 26

United States v. Taylor,

142 S. Ct. 2015 (2022) ............................................................................................... 13

United States v. Thayer,

40 F.4th 797 (7th Cir. 2022) ........................................................................................ 3

vii

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Thayer,

546 F. Supp. 3d 808 (W.D. Wis. 2021) ........................................................................ 3

United States v. Vineyard,

945 F.3d 1164 (11th Cir. 2019) ................................................................................. 19

United States v. Walker,

931 F.3d 576 (7th Cir. 2019) ............................................................................... 17, 18

United States v. Williams,

504 U.S. 36 (1992) ..................................................................................................... 25

United States v. Young,

872 F.3d 742 (5th Cir. 2017) ..................................................................................... 18

Verizon Communc’ns, Inc. v. FCC,

535 U.S. 467 (2002) ................................................................................................... 25

Federal Statutes and Public Laws

8 U.S.C. § 1101 ........................................................................................................ 15, 16

18 U.S.C. § 924 ........................................................................................................ 15, 17

18 U.S.C. § 2250 ...................................................................................................... 2, 3, 5

18 U.S.C. § 3731 .............................................................................................................. 8

28 U.S.C. § 1254 .............................................................................................................. 3

28 U.S.C. § 3231 .............................................................................................................. 7

34 U.S.C. § 20911 ................................................................. 2, 3, 5–11, 14, 16–20, 22–25

34 U.S.C. § 20915 ............................................................................................................ 5

34 U.S.C. § 20919 .......................................................................................................... 21

42 U.S.C. § 14071 ............................................................................................................ 4

Sex Offender Registration and Notification Act,

Pub. L. 109-248, 120 Stat. 587 (July 27, 2006) .......................................................... 5

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Regulations

73 Fed. Reg. 38030 (2008) .............................................................................................. 5

State Statutes

Conn. Gen. Stat. Ann. § 54-251 ...................................................................................... 4

Minn. Stat. § 609.345.................................................................................................. 3, 6

Other Authorities

Abigail E. Horn, Wrongful Collateral Consequences,

87 GEO. WASH. L. REV. 315 (2019) ............................................................................. 22

ANTONIN SCALIA & BRYAN A. GARNER, READING LAW (2012) ................................. 18, 20

PETITION FOR A WRIT OF CERTIORARI

State sex-offender registries are regulated by both state and federal governments, and each sovereign’s law gives rise to a different registration obligation. In

2003, Thomas Thayer was convicted of violating Minnesota law and had a state-law

obligation to register on Minnesota’s sex-offender registry for ten years. Seventeen

years later, the federal government indicted him on the theory that his Minnesota

conviction met the definition of a federal “sex offense” and that Thayer hadn’t registered for the longer period required under federal law. This case asks whether

Thayer’s Minnesota conviction qualifies as a federal “sex offense.” And the answer

turns on whether courts apply a categorical or circumstance-specific analysis when

comparing a prior conviction to the federal definition of “sex offense.”

In answering that question, the courts in Thayer’s case splintered. This Court

has parsed the same language that appears in the federal subsections at issue here

and held that that language triggers a categorical approach. Consistent with those

decisions, the district court applied a categorical analysis, concluded that the Minnesota conviction’s elements were broader than the federal definition of “sex offense,”

and dismissed the indictment. The Seventh Circuit held, over a dissent, that a circumstance-specific approach governs and remanded the case for a jury to figure out

the specific facts underlying Thayer’s (now twenty-year-old) conviction and to compare those facts to the federal definition of “sex offense.” On remand, the district court

explicitly asked for guidance from this Court and stayed the proceedings so that

Thayer could file this petition.

This case presents an ideal vehicle to resolve this exceptionally important

question. The issue of which analysis applies to 34 U.S.C. §§ 20911(5)(A)(ii), (5)(C),

(7)(I) was cleanly pressed and passed upon below; there are no procedural hurdles.

Further, left undisturbed, the Seventh Circuit’s decision causes far-reaching harm.

Allowing a circumstance-specific approach to govern does more than simply contravene this Court’s precedents. It leaves defendants unsure whether a conviction carries a federal registration requirement and uncertain whether (and for how long) to

juries to grapple with what facts are relevant to the definition of “sex offense.” And it

makes failure-to-register trials nightmarish ordeals that not only risk the revictimization of complainants but also turn on exhuming records from decades-old case files.

Respectfully, this Court should accept review.

OPINIONS AND RULINGS BELOW

The opinion of the Seventh Circuit is reported at 40 F.4th 797 (7th Cir. 2022)

and reproduced at App. 1a–17a.1 The Seventh Circuit’s order denying rehearing en

banc is unreported and reproduced at App. 19a. The district court’s opinion granting

Thayer’s motion to dismiss is reported at 546 F. Supp. 3d 808 (W.D. Wis. 2021) and

reproduced at App. 20a–26a. The magistrate judge’s report and recommendation to

grant Thayer’s motion to dismiss is unreported and reproduced at App. 27a–39a.

JURISDICTION

The Seventh Circuit entered judgment on July 21, 2022, and denied rehearing

en banc on October 31, 2022. App. 18a, 19a. On January 4, 2023, Justice Barrett

extended the time within which to file a petition for a writ of certiorari to and including March 30, 2023. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth and Sixth Amendments to the United States Constitution; select provisions of the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250,

34 U.S.C. § 20911; and Fourth Degree Criminal Sexual Conduct, Minn. Stat.

§ 609.345, are relevant to this petition. Consistent with Rule 14.1(i)(v), these materials are reproduced at App. 40a–52a.

1 This petition relies on abbreviated citations. Materials in the appendix are cited as “App. ”

District court materials are referenced by their district court docket number (“R.”). And appellate materials are referenced by their Seventh Circuit docket number (“CA7 Dkt.”).

STATEMENT OF THE CASE

Federal law obligates individuals to register as “sex offenders”

only if they have a prior conviction that is a “sex offense.”

There is no freestanding federal sex-offender registry; instead, the federal government has used its authority to push for a baseline-level of uniformity across the

states’ various sex-offender registries. See Gundy v. United States, 139 S. Ct. 2116,

2121–22 (2019). In 1994, Congress mandated that each state create a registry, and it

established baseline categories of “criminal offense[s] against a victim who is a minor”

that would trigger registration for a certain period. 42 U.S.C. § 14071(a)(1), (b)(6). It

defined “criminal offense against a victim who is a minor” to “mean[] any criminal

offense in a range of offenses specified by State law which is comparable to or which

exceeds the following range of offenses.” Id. § 14071(a)(3)(A) (1997) (emphasis added).

And one of the categories that followed was “any conduct that by its nature is a sexual

offense against a minor.” Id. § 14071(a)(3)(A)(vii).

Congress simply set the floor. Each state could go beyond the categories of offenses that Congress had specified and demand that other convictions also trigger

registration. Indeed, some states require registration for not only sexual but also nonsexual crimes. E.g., Conn. Gen. Stat. Ann. § 54-251 (any crime against a minor). And,

similarly, although Congress had established its own registration periods, states

were free to demand a different registration period.

In 2006, as part of the Sex Offender Registration and Notification Act

(“SORNA”), Congress amended the law but maintained that general structure. See

Pub. L. 109-248, 120 Stat. 587 (July 27, 2006). It changed the term of art for a predicate offense from a “criminal offense[] against a victim who is a minor” to a “sex offense,” and it defined “sex offense” through categories of offenses. Id. § 111(1), (5)(A).

Importantly, for one of those categories (“a criminal offense that is a specified offense

against a minor”), Congress replicated its original list of qualifying offenses, including

a residual category for “[a]ny conduct that by its nature is a sex offense against a

minor.” Id. § 111(7)(I). Consistent with the prior application of a categorical approach

to that language, the Department of Justice’s SORNA Guidelines explained that subsection (7)(I) was “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.” U.S. Dep’t of Justice, National Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38030, 38052 (July 2, 2008). Thus, SORNA made plain that

those with convictions for offenses that fall within the categories that Congress identified had a federal obligation to register. And, for the first time, failure to do so carried federal penalties. Pub. L. 109-248 § 141 (codified at 18 U.S.C. § 2250).

That backdrop informs the language at issue in this case. Today, the law continues to speak in terms of categories of offenses that trigger a federal registration

requirement. An individual who “was convicted of a sex offense” is a “sex offender”

who must register (on a state registry) for at least fifteen years. 34 U.S.C. §§ 20911(1),

20915(a). A “sex offense,” as relevant here, is “a criminal offense that is a specified

offense against a minor.” Id. § 20911(5)(A)(ii). And a “specified offense against a minor” is “an offense against a minor that involves any of” nine categories of offenses,

including “[a]ny conduct that by its nature is a sex offense against a minor.” Id.

§ 20911(7)(I). The law also contains a so-called Romeo-and-Juliet carve-out: an “offense involving consensual sexual conduct” between someone “at least 13 years old”

and a defendant “not more than 4 years older” is not a “sex offense.” Id. § 20911(5)(C).

Thayer was charged with failing to register as a sex offender

based on a prior Minnesota state conviction.

In 2003, Thayer was convicted of committing fourth-degree sexual conduct in

Minnesota. App. 4a–5a. The indivisible statute to which he pleaded guilty criminalizes “sexual contact” with someone who is 13–15 years old when the defendant either

is more than four years older than the minor or “in a position of authority over” the

minor. Minn. Stat. § 609.345(1)(b).2 It covers both sexual and non-sexual acts, because “sexual contact” is defined as touching with “sexual or aggressive intent.” Id.

§ 609.341(11)(a) (emphasis added); e.g., State v. Stephenson, No. A05-417, 2006 WL

1319989, at *2–3 (Minn. Ct. App. May 16, 2006) (spanking). As a result of his conviction, Minnesota law obligated Thayer to register for ten years. App. 5a. At some point,

he moved to Wisconsin. Id. In 2020, the federal government indicted him for crossing

state lines and failing to register for the length of time that SORNA required. R.2.

The defense moved to dismiss the indictment because Thayer hadn’t been convicted of a SORNA “sex offense” and, therefore, had no federal duty to register. It

contended that a categorical approach governed: the court must look to the elements

of the Minnesota offense and determine whether they are broader than an “offense

2 All citations to the Minnesota Statutes reference the version in effect in 2003.

against a minor that involves . . . any conduct that by its nature is a sex offense

against a minor.” 34 U.S.C. §§ 20911(5)(A)(ii), (5)(C), (7)(I). A circumstance-specific

approach—in which courts assess whether the actual facts of the prior offense satisfy

the federal statute’s elements—wasn’t called for by the statute’s language and implicated serious constitutional problems. And, the defense argued, under a categorical

analysis, it was clear that the Minnesota statute was broader than SORNA’s demands and, thus, was not a “sex offense.”

The district court dismissed the indictment.

The magistrate judge agreed with the defense. In a Report and Recommendation, the court applied a categorical analysis and identified two mismatches between

the Minnesota statute and SORNA’s definition of “sex offense.” First, the court reasoned, the Minnesota statute’s Romeo-and-Juliet provision did not exempt a close-inage defendant “in a position of authority,” but SORNA’s provision did. App. 31a, 35a

n.3. Second, the Minnesota statute criminalized touching with “aggressive intent,”

but SORNA did not. Id. at 35a. The court placed greater weight on the latter reason

and recommended that the district court dismiss the indictment. Id. at 36a.

The district court, which had jurisdiction under 28 U.S.C. § 3231, adopted the

recommendation to dismiss the indictment. The court agreed that a categorical approach governed, because “[r]eading § 20911(7)(I) to allow the court to look at the

underlying offense conduct for anything that would be a sex offense would render

most of SORNA’s definitions of sex offense mere surplusage.” App. 22a. The court also

expressed concern that a circumstance-specific approach risked judicial factfinding

that contravened the Fifth and Sixth Amendments. Id. And, applying a conduct-based

categorical analysis, the court held that Thayer’s Minnesota conviction was not a

SORNA “sex offense” because the Romeo-and-Juliet carve-outs did not align. Id. at

24a–26a. It dismissed the indictment. Id. at 26a.

In a split panel decision, the Seventh Circuit reversed.

The Government timely appealed to the Seventh Circuit, which had jurisdiction under 18 U.S.C. § 3731. In a split-panel decision, it reversed.

The majority opinion began by explaining that SORNA’s purpose “is to

protect the public from sex offenders and offenders against children.” App. 3a–4a (internal quotation marks omitted). From that premise, it reasoned that select terms

counseled in favor of a circumstance-specific approach—namely, “offense” has to “refer[] to the specific acts in which an offender engaged on a specific occasion,” because

“whether a given ‘offense’ constitutes a ‘sex offense’ under §§ 20911(5)(A)(ii) and (7)(I)

turns upon the ‘nature’ of the ‘conduct’ that ‘offense’ ‘involve[d].’” Id. at 6a–7a (emphasis added). A “focus on the ‘conduct’ underlying the prior offense,” it continued,

“refers to the specific circumstances of how a crime was committed.” Id. at 7a. And

“by its nature” only “reinforces this conclusion.” Id. Relatedly, the majority explained,

the Romeo-and-Juliet carve-out (§ 20911(5)(C)) calls for a circumstance-specific approach because it, too, “focus[es] on conduct.” Id. at 11a. Although the definition of

“sex offense” includes the word “conviction”—which “typically signif[ies] a crime as

generally committed and a categorical analysis”—the majority gave it no weight, because it is “furthest in terms of proximity from the language of the specific sections

at issue.” Id. at 7a (internal quotation marks omitted).

In the majority’s view, no authority counseled otherwise. Rather, Congress intended “to fashion a wide net ensnaring as many child sex offenders as possible”;

meaning, §§ 20911(5) and (7) must be read to “apply to a broad range of conduct by

child predators.” App. 8a. Despite apparent structural similarities between § 20911(7)

and 18 U.S.C. § 924(e)(2)(B)(ii), to which a categorical analysis applies, the majority

distinguished them based on punctuation; Congress “separated generic crimes and

specific conduct into isolated subsections” in § 20911(7) but used only commas in

§ 924(e)(2)(B)(ii). App. 10a. Further, although the Department of Justice’s own guidelines “favor a categorical approach to §§ 20911(5)(A)(ii) and (7)(I),” they received no

weight. Id. at 8a–9a. And, according to the majority, applying a circumstance-specific

approach cannot offend the Sixth Amendment, because the Government always bears

the burden of proof, and any evidentiary issues will benefit the defense. Id. at 9a.

Judge Jackson-Akiwumi dissented. The dissenting opinion cited this

Court’s explanation that a statute premised on “convictions” “indicates that ‘Congress

intended the sentencing court to look only to the fact that the defendant had been

convicted of crimes falling within certain categories, and not to the facts underlying

the prior convictions.’” Id. 14a (Jackson-Akiwumi, J., dissenting) (quoting Taylor v.

United States, 495 U.S. 575, 600 (1990)). It found “stronger parallels” between

§ 20911(7)(I) and § 924(e)(2)(B)(ii). App. 12a–14a. And it repeated this Court’s guidance that courts must not adopt an approach that requires “a sentencing court to

reconstruct, long after the original conviction, the conduct underlying that conviction”

because it is “utter[ly] impracticab[le].” Id. at 14a. What’s more, the dissent highlighted, every other definition of “sex offense” in § 20911 triggers a categorical approach, and “it would be odd for Congress to require the categorical approach for all

definitions of ‘sex offense’ found in § 20911 except for ‘specified offense against a minor’ under § 20911(5)(A)(ii).” Id. at 13a–14a. And the legislative history indicated that

“Congress lifted § 20911(7)(I) from a list of enumerated offenses” to which a categorical approach applied, bringing that “old soil” into the new statute. Id. at 15a, 16a n.1

(quoting United States v. Davis, 139 S. Ct. 2319, 2331 (2019)).

The dissent also pointed to constitutional concerns that the majority overlooked. It highlighted that a categorical approach is not contingent on “a Sixth

Amendment component,” and adopting a circumstance-specific approach risks conviction without fair notice. Id. at 16a. As the dissent explained, a circumstance-specific approach “will create confusion about who is required under federal law to register.” Id. Indeed, adopting that approach means defendants may be “sandbag[ged]

. . . with a duty to register after they thought they had pled down to a conviction that

did not carry a registration requirement.” Id. (citing Taylor, 495 at 602). And they

would not realize they needed to contest seemingly “superfluous factual allegations”

about “conduct outside the elements of conviction” in order to protect themselves

against a potential future § 2250 prosecution. Id. (quoting Descamps v. United States,

570 U.S. 254, 270 (2013)).

Finally, the dissent outlined the impracticalities of implementing a circumstance-specific approach. To abide by Confrontation Clause and hearsay restrictions,

“victims [will be] forced to come back and testify—perhaps decades after the fact.” Id.

Alternatively, prosecutors may seek to rely on “facts put in the record at a plea hearing,” even though those facts “may not accurately reflect the strength of the government’s case as to conduct outside the elements of conviction.” Id. And it will create

new burdens on federal district courts, which may need to hold “pre-registration hearing[s] . . . to determine whether the state could have proven additional facts not included in the plea.” Id.

After the Seventh Circuit denied Thayer’s petition for rehearing en banc,

the case returned to the district court. Confronted with the prospect of a complex trial

certain to raise novel issues, Judge Crocker observed: “The parties, the court, and the

public all would benefit from a Supreme Court opinion in this case.” R.41.

REASONS FOR GRANTING THE PETITION

The Seventh Circuit’s split decision is indefensible.

The tools that a court uses to resolve whether a categorical or circumstance-

specific approach governs a particular statute don’t change with the charge. Instead,

this Court has instructed courts to look at the statutory text, then consider any constitutional implications and practical difficulties that flow from adopting one approach over the other. E.g., Davis, 139 S. Ct. at 2327; Sessions v. Dimaya, 138 S. Ct.

1204, 1216–18 (2018) (plurality); Mathis v. United States, 579 U.S. 500, 510–12

(2016); Descamps, 570 U.S. at 267; Nijhawan v. Holder, 557 U.S. 29, 36–43 (2009).

Those tools apply equally to the question of whether a categorical or circumstancespecific approach applies to §§ 20911(5)(A)(ii), (5)(C), (7)(I).

Yet, the Seventh Circuit’s decision frames its analysis in terms of Congress’s

purpose in order to justify a circumstance-specific approach. It makes minimal efforts

to distinguish controlling precedents that point to a categorical approach. It

shortchanges constitutional concerns. And it dismisses the practical difficulties of implementing its holding. In other words, rather than even-handedly employing the

tools that this Court instructed it to use, it turns the toolbox upside down. As this

Court has explained before when interpreting SORNA, “[v]ague notions of a statute’s

‘basic purpose’ are inadequate to overcome the words of its text regarding the specific

issue under consideration.” Carr v. United States, 560 U.S. 438, 456 (2010) (cleaned

up). But the Seventh Circuit’s analysis begins and ends in the same place: Congress

meant to protect the public from sex offenders, and the circumstance-specific approach better accomplishes this goal. See App. 3a, 8a.

As discussed below, the statute’s text, constitutional principles, and pragmatic

concerns all point to a categorical approach. This Court has held that, where Congress

has made the application of federal law turn on a prior “conviction” that, “by its nature,” “involves” certain “conduct,” a categorical approach governs. E.g., Shular v.

United States, 140 S. Ct. 779, 784–85 (2020); Davis, 139 S. Ct. at 2327–29; Dimaya,

138 S. Ct. at 1217–18 (plurality); Johnson v. United States, 576 U.S. 591, 604–05

(2015); Kawashima v. Holder, 565 U.S. 478, 483–84 (2012); James v. United States,

550 U.S. 192, 201–02 (2007); Taylor, 495 U.S. at 600. Those very words appear in the

statutes at issue here and warrant the same categorical treatment. Numerous canons

of statutory construction confirm that a categorical approach governs. And, what’s

more, the circumstance-specific approach runs aground on the Fifth Amendment and

myriad pragmatic harms that attend its adoption.

The Seventh Circuit’s decision is at odds with this Court’s precedents that interpret highly similar statutory language.

The Seventh Circuit settled on a circumstance-specific approach without

meaningfully engaging the text. The court of appeals’ decision conflicts with this

Court’s controlling precedents interpreting similarly structured statutes with nearly

identical language. As discussed below, the few reasons it offered for adopting a circumstance-specific approach do not withstand scrutiny. And, beyond those problems,

the court of appeals failed to account for numerous canons of statutory construction

that all point to a categorical approach. Indeed, the whole-text canon, principles of

consistent construction, and the canon against surplusage all confirm that the text

demands a categorical approach.

1.a.

To begin, the Seventh Circuit’s decision purports to focus on the key

statutory terms but then distorts their plain meaning. It assumes that, because Congress made the definition of “sex offense” in subsection (7)(I) “turn[] upon the ‘nature’

of the ‘conduct’ that ‘offense’ ‘involve[d],’” Congress necessarily intended for courts to

find facts of some kind underpinning the conviction. Cf. App. 7a. But this Court “has

long understood similarly worded statutes to demand similarly categorical inquiries.”

United States v. Taylor, 142 S. Ct. 2015, 2020 (2022). And a trail of controlling precedents reflects that “conviction,” “involves,” and “by its nature” each point to a categorical approach:

Key Word

“Conviction”

“Involves”

conduct

“By its

nature”

Controlling Precedent

Seventh Circuit’s Reasoning

“Simple references to a ‘conviction’ . . . or ‘offense,’ we have

stated, are read naturally to

denote the crime as generally

committed.” Dimaya, 138 S. Ct.

at 1217 (plurality) (cleaned

up); accord Johnson, 576 U.S.

at 604–05; Taylor, 495 U.S. at

600.

“Conviction” is part of the “highest-level definition of ‘sex offender’” and “typically signif[ies]

a categorical analysis,” but “it is

furthest in terms of proximity

from the language of the specific

subsections at issue.” App. 7a.

Offenses that “involve” certain

conduct refer to “offenses with

elements that necessarily entail” that conduct. Kawashima,

565 U.S. at 484; accord Shular,

140 S. Ct. at 784–85; James,

550 U.S. at 201–02.

“Conduct . . . refers to the specific

circumstances of how a crime

was committed, not to a generic

offense.” App. 7a.

The term “by its nature” “tells

courts to figure out what . . .

[the object of that phrase] normally—or, as we have repeatedly said, ‘ordinarily’—entails,

not what happened to occur on

one occasion.” Dimaya, 138 S.

Ct. at 1217–18 (plurality); accord Davis, 139 S. Ct. at 2329.

“The term ‘by its nature’—which

typically denotes something’s

normal and characteristic quality or basic or inherent features—reinforces” that a circumstance-specific analysis applies.

App. 7a (cleaned up).

“Offense” triggers a circumstance-specific approach because

“whether a given ‘offense’ constitutes a ‘sex offense’ . . . turns

upon the ‘nature’ of the ‘conduct’

that ‘offense involved.’” App. 7a.

As the chart makes plain, the Seventh Circuit looked at the very terms that this Court

has said indicate a categorical approach and held the opposite.

Meanwhile, the Seventh Circuit’s decision offers a limited rationale for

reading these terms differently. First, it found meaningful that “other portions of

§ 20911(7) refer to generic crimes . . . [while] § 20911(7)(I) addresses specific conduct

alone” in a subsection “isolated” by semicolons, rather than commas (like

§ 924(e)(2)(B)(ii)). App. 10a. But the semicolon-versus-comma distinction doesn’t

carry that much weight. See id. at 14a (dissent). In fact, this Court has described a

similarly punctuated provision defining “aggravated felony” to constitute a “list[ of]

categories of offenses” to which a categorical approach applies. Kawashima, 565 U.S.

at 481, 483 (8 U.S.C. § 1101(a)(43)). Relatedly, although the Seventh Circuit’s decision found telling that Congress included “element” in subsection (5)(A)(i) and omitted it from (5)(A)(ii), this Court has read similarly structured statutes (with an “element” and non-“element” clause) to trigger a categorical approach throughout. See

Davis, 139 S. Ct. at 2329 (18 U.S.C. §§ 924(c)(3)(A), (B)); Johnson, 576 U.S. at 596 (18

U.S.C. §§ 924(e)(2)(B)(i), (ii)).

Second, the court of appeals cited to the typical meaning of “by its nature” and

suggested that this, too, points to a circumstance-specific approach. App. 7a. But it

gave short shrift to the three separate occasions on which this Court instructed that

“by its nature” disclaims a fact-bound inquiry. In Leocal v. Ashcroft, this Court noted

that “by its nature” “requires us to look to . . . the nature of the offense of conviction,

rather than to the particular facts relating to petitioner’s crime.” 543 U.S. 1, 7 (2004).

Then, in Dimaya, this Court observed that “by its nature” tells “courts to figure out

what an offense normally” entails. 138 S. Ct. at 1217–18 (plurality). And, in Davis,

this Court explained that, just as it is in “plain English, when we speak of the nature

of an offense, we’re talking about what an offense normally—or, as we have repeatedly said, ordinarily—entails, not what happened to occur on one occasion.” 139 S. Ct.

at 2329 (emphasis added) (internal quotation marks omitted). The Seventh Circuit

suggested these cases aren’t controlling because “by its nature” modified “offense” in

those cases, while “by its nature” modifies “conduct” in § 20911(7)(I), and the words

“conviction” and “offense” are less “proximate.” See App. 7a. But geographic proximity

within a definition isn’t dispositive. After all, Congress could have cross-referenced a

different chapter to form a definition and still triggered a categorical approach. E.g.,

Mellouli v. Lynch, 575 U.S. 798, 801, 805 (2015). And, here, “conviction” and “offense”

remain the lodestar. Just as in § 924(e), § 20911 uses “conviction” in its prefatory

language and defines the predicate as a type of “crime” (or “offense”). Compare 18

U.S.C. § 924(e)(2)(B)(ii), with 34 U.S.C. §§ 20911(1), (7)(I); see Johnson, 576 U.S. at

604–05 (categorical approach applies to § 924(e)(2)(B)(ii)). This sets up a categorical

inquiry. “By its nature” simply continues that inquiry by asking whether the purported predicate’s elements entail conduct that normally or ordinarily is a “sex offense”—not whether what happened to occur on one occasion was a “sex offense.” See

Davis, 139 S. Ct. at 2329.

Relatedly, the Seventh Circuit’s emphasis on the word “conduct” does not bear

weight. The court of appeals believed that the statute’s “[e]xplicit focus on the ‘conduct’ underlying the prior offense . . . refers to the specific circumstances of how a

crime was committed.” Id. But this Court has held that “conduct” commands a categorical approach. In Kawashima, this Court explained that, where federal law defines

a predicate offense in terms of whether it was “an offense that involves fraud or deceit,” a categorical analysis governs. 565 U.S. at 483 (8 U.S.C. § 1101(a)(43)(M)(i))

(emphasis added). In Johnson, this Court reaffirmed that, where federal law defines

a predicate offense in terms of whether it “involves conduct that presents a serious

potential risk of physical injury,” courts must employ a categorical approach. 576 U.S.

at 604–05 (18 U.S.C. § 924(e)(2)(B)(ii)) (emphasis added). And in Shular, the Government agreed (and this Court reaffirmed) that, where federal law defines a predicate

offense in terms of whether it was “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance,” a categorical approach controls. 140 S. Ct. at 784–85 (18 U.S.C.

§ 924(e)(2)(A)(ii)) (emphasis added). Those statutes’ structures echo § 20911(7)(I). In

each, the statute defines the predicate in terms of whether it is an offense that entails

certain conduct. Indeed, “it is natural to say that an offense ‘involves’ or ‘requires’

certain conduct” and, still, to apply a categorical approach. Shular, 140 S. Ct. at 785.

Just as the statute in Kawashima refers categorically to “offenses with elements that

necessarily entail fraudulent or deceitful conduct,” § 20911(7)(I) refers categorically

to offenses with elements that necessarily entail conduct that is a sex offense. See 565

U.S. at 484. Thus, “conduct” does not support a circumstance-specific approach.

Third, the Seventh Circuit never explains what fact a circumstance-specific

approach will identify. Generally, a circumstance-specific approach applies where a

statute defines a predicate offense (or some part of that offense) in terms of a specific

factual detail—for example, a particular loss amount ($10,000+) or a complainant’s

age. Nijhawan, 557 U.S. at 36–40; United States v. Walker, 931 F.3d 576, 579–80 (7th

Cir. 2019) (Barrett, J.). Tellingly, although the Seventh Circuit’s decision asserts that

a circumstance-specific approach must govern §§ 20911(5)(A)(ii), (5)(C), (7)(I), it

points to no specific fact that needs to be present. “Conduct,” writ large, is not a fact.

Adopting a circumstance-specific approach, then, leaves a factfinder to arbitrarily decide which facts are relevant in determining whether an offense is a “sex offense” “by

its nature.”

In adopting the circumstance-specific approach, the Seventh Circuit’s

decision also ignores canons of statutory construction that counsel in favor of the categorical approach. As a preliminary matter, the whole-text canon instructs that

courts consider all the interrelated provisions of a statute together. ANTONIN SCALIA

& BRYAN A. GARNER, READING LAW 167 (2012). The Seventh Circuit’s decision, meanwhile, isolates subsections (5)(A)(ii) and (7)(I). But those provisions can’t be read

apart from the rest of the text. They provide the definition for a term of art (“sex

offense”) that sits within a broader definition. Again, a person is a “sex offender” who

has to register because he has been “convicted” of a “sex offense”; a “sex offense” is a

particular type of conviction. 34 U.S.C. § 20911(1) (emphasis added). And “conviction”

supports a categorical approach. Descamps, 570 U.S. at 267; Taylor, 495 U.S. at 600.

Principles of consistent construction reinforce this conclusion. Courts must

consider the methodology called for by a provision’s neighboring subsections. See, e.g.,

Davis, 139 S. Ct. at 2329; Nijhawan, 557 U.S. at 39. Numerous courts have held that

§§ 20911(3), (4), and (5)(A)(i) demand a categorical or hybrid-categorical approach.3

3 E.g., United States v. Navarro, 54 F.4th 268, 278–79 (5th Cir. 2022) (§ 20911(3)(A)(iv));

Walker, 931 F.3d at 579–80 (§§ 20911(3)(A)(iv), (4)(A)(ii)); United States v. Barcus, 892 F.3d

228, 231–32 (6th Cir. 2018) (§ 20911(4)); United States v. Young, 872 F.3d 742, 746 (5th Cir.

2017) (same; joining First, Fourth, Ninth, and Tenth Circuits); United States v. Helton, 944

Equally, §§ 20911(5)(A)(iii)–(v) call for a categorical approach because they reference

enumerated federal offenses. See Nijhawan, 557 U.S. at 37 (reference “to an ‘offense

described in’ a particular section of the Federal Criminal Code” triggers categorical

approach). That means § 20911(5)(A)(ii) is surrounded by provisions that call for a

categorical approach:

Provision

Relevant Language

Approach

§ 20911(3)

“Offense” “comparable to or more severe than”

enumerated federal offenses or which “involves

use of a minor in sexual performance; solicitation

of a minor to practice prostitution; or production

or distribution of child pornography”

Categorical

§ 20911(4)

§ 20911(5)(A)(i)

“Offense” “comparable to or more severe than”

enumerated federal offenses or enumerated of- Categorical,

fenses with minor under 13, or which “involves except to age

kidnapping”

“Sex offense” is an “offense that has an element

involving a sexual act or sexual contact with another”

Categorical

§ 20911(5)(A)(ii)

“Sex offense” is an “offense that is a specified offense against a minor,” incorporating § 20911(7)

§ 20911(5)(A)(iii)

“Sex offense” is an enumerated federal offense

Categorical

§ 20911(5)(A)(iv)

“Sex offense” is an enumerated military offense

Categorical

§ 20911(5)(A)(v)

“Sex offense” is “an attempt or conspiracy to commit an offense described in clauses (i) through

(iv)”

Categorical

F.3d 198, 203–04 (4th Cir. 2019) (§ 20911(5)(A)(i)); United States v. Vineyard, 945 F.3d 1164,

1170 (11th Cir. 2019) (same); United States v. Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015)

(same).

The fact that all § 20911(5)(A)(ii)’s neighboring provisions call for a categorical approach reinforces the conclusion that § 20911(5)(A)(ii) demands the same. Indeed, “it

would be odd” for that provision alone to be treated differently. App. 13a (dissent).

Finally, the Seventh Circuit’s decision cannot be squared with the surplusage

canon. That canon directs jurists to give effect to every provision of a statute and

cautions against adopting a reading that would render other provisions “pointless.”

SCALIA & GARNER at 176. Here, as the district court noted, if a circumstance-specific

approach applies, then other definitions of “specified offense against a minor” become

surplusage—they would be swallowed up by subsection (I) because the behavior always would be “conduct that by its nature is a sex offense against a minor.” App. 22a.

In other words, while a categorical approach ensures that all provisions retain torque,

adopting a circumstance-specific approach to subsection (I) causes every other provision in § 20911(7) “to have no consequence.” See SCALIA & GARNER at 174.

The Seventh Circuit’s decision does not grapple with the Fifth

Amendment implications of a circumstance-specific approach.

This Court has been clear that, after consulting the text, courts must consider

any constitutional anxieties that attend using a particular approach. Here, the Seventh Circuit’s decision brushes off “Sixth Amendment concerns” on the theory that a

defendant can always elect to go to trial. App. 9a. But nothing assuages the Fifth

Amendment problems that come with a circumstance-specific approach.

The circumstance-specific approach provides no notice to a defendant as to

whether an offense is a SORNA predicate. Indeed, if it governs, then a defendant will

first learn whether he had a federal duty to register when the jury reads its verdict

at his failure-to-register trial. And neither the statute nor the Seventh Circuit’s decision gives any guidance on what standard the factfinder uses to assess whether certain conduct, by its nature, is a sex offense. After all, what “facts” is the factfinder

assessing—the allegations in the original criminal complaint, statements found in an

old police report, testimony at an evidentiary hearing, the facts put into evidence at

trial? See CA7 Dkt.26:25–28. “[E]ven the most expansive interpretation of a statute

must have clear delineations,” and, if the circumstance-specific approach applies

here, then there are none. See App. 15a (dissent).

The Government previously has pointed to § 20919 as a salve (CA7 Dkt.52:13),

but that provision doesn’t cure the problem. Section 20919 obligates “[a]n appropriate

official” to “inform” a “sex offender,” in writing, of SORNA’s registration requirement

and to “ensure that the sex offender is registered.” 34 U.S.C. § 20919(a). But this

provision assumes that the “appropriate official” will know whether a defendant qualifies as a “sex offender.” And, in practice, the official is in the same position as

Thayer—left to guess whether the instant offense makes him a federal “sex offender”

and creates a federal registration obligation. The official can’t rely on the offense’s

label alone. E.g., Taylor, 495 U.S. at 588–91 (meaning of “burglary” in § 924(e) could

not depend on “crimes that happened to be labeled . . . ‘burglary’ by the laws of the

State of conviction”). Instead, he or she must make a subjective judgment call. In

other words, § 20919 risks arbitrary enforcement; one official may deem the “conduct”

of an underlying offense to constitute a “sex offense” and inform a defendant that he

needs to register, while another may disagree and not provide the notice. Neither

scenario necessarily aligns with how a jury would answer the same question. And

defendants may register even when they are not “sex offenders.” Thus, § 20919

doesn’t clear up the fair notice concerns.

Tellingly, in the court of appeals, the Government tried to shift the burden to

the defense. It submitted that there is no fair notice problem because “[a] defendant

knows . . . whether the nature of his own conduct is a sex offense.” CA7 Dkt.52:14.

But, of course, that premise is inconsistent with the presumption of innocence and

assumes legal omniscience. It is no answer to the due process concerns that plague

application of the circumstance-specific approach to §§ 20911(5)(A)(ii), (5)(C), (7)(I).

The Seventh Circuit’s decision underestimates the pragmatic

harm of adopting a circumstance-specific approach.

The court of appeals dispensed with the defense’s complaints about the practical realities of its holding on the belief that “[a]ny practical difficulties . . . favor

Thayer.” App. 9a. But the Seventh Circuit is mistaken.

First and foremost, the notice problems just described have consequences. Defendants can’t make informed decisions about whether to plead guilty without knowing if the conviction also qualifies as a SORNA “sex offense.” And those convicted

don’t know whether they must register. The problem is particularly acute for those

convicted of non-sexual offenses. Do they register as a precautionary measure? And

if so, for how long—15 years, 25 years, life? Prophylactic registration, of any length,

is anathema to due process. And it carries severe penalties and social stigmas. See

Abigail E. Horn, Wrongful Collateral Consequences, 87 GEO. WASH. L. REV. 315, 333–

35, 346–48 (2019) (sex offender registration, inter alia, destroys reputations, eliminates employment, affects access to federal programs, and restricts housing).

Second, in § 2250 prosecutions that implicate § 20911(7)(I), courts are left without guidance as to what “conduct” is relevant. Jury instructions will graft requirements onto the text, and those requirements will be driven by the facts that the Government thinks are pertinent. Thus, there will be no uniform definition of “conduct”;

instead, courts will define “conduct” in light of the Government’s case. Alternatively,

juries will be left alone to decide what “conduct” is relevant, turning a legal question

about the scope of the statute into a question of fact. And, as this Court previously

has recognized (and the dissent cited), the sources on which they might rely in doing

so will “deprive some defendants of the benefits of their negotiated plea deals” as to

the prior offense. See Descamps, 570 U.S. at 271. Thayer may have had good reason

not to contest certain statements the prosecutor made or that were contained in plearelated paperwork. See id. at 270. And he could not have been “thinking about the

possibility that his silence could come back to haunt him in a” SORNA prosecution

seventeen years later—§ 2250 “was not even on the books” in 2003. See id. at 270–71.

Third, the circumstance-specific approach is administratively burdensome and

risks revictimization. It is unclear what documents the Government could find or rely

on from the original proceeding at a subsequent § 2250 trial—criminal complaint,

police reports, discovery materials, transcripts? See, e.g., Taylor, 495 U.S. at 601 (ambiguity surrounding potential evidence relevant to “a factual approach” supported

categorical approach). Given the limits of record-retention policies, not all those materials will exist; and, even if they exist, it is unclear whether they are admissible.

Does the Government call former counsel to testify about the original proceeding?

Does it force a complainant to testify about traumatic events long put to rest? See

United States v. Morales, 801 F.3d 1, 6 (1st Cir. 2015) (risk of retraumatizing complainants supported categorical approach). At what point does the court, bogged down

by a trial within a trial, say “enough”?

Courts, litigants, and the public need not suffer in this way. It is appropriate

to adopt the categorical approach to avoid such practical problems and promote “judicial and administrative efficiency.” App. 17a (dissent) (quoting Moncrieffe v. Holder,

569 U.S. 184, 200 (2013)). Indeed, as this Court has explained, “daunting difficulties

of accurately reconstructing, often many years later, the conduct underlying a conviction” warrants adopting a categorical approach. Dimaya, 138 S. Ct. at 1218

(cleaned up); accord Taylor, 495 U.S. at 601 (“practical difficulties and potential unfairness” supported adopting categorical approach). Thus, the pragmatic strain of applying a circumstance-specific approach in this context, in addition to the plain text’s

demands and Fifth Amendment concerns, further tips the scale in favor of adopting

a categorical approach.

Thayer’s prior conviction is not a “sex offense.”

Whether the categorical or circumstance-specific analysis governs makes all

the difference to Thayer. Under the categorical approach, there is at least one (if not

two) mismatches between the Minnesota statute and § 20911(7)(I). See App. 24a–26a,

31a–36a & n.3. Thus, the indictment against him must be dismissed.

On the other hand, if a circumstance-specific approach governs, this case will

head to trial. Thayer will be forced to re-litigate the facts underpinning a decades-old

offense, and a jury will have to decide whether those facts make his conviction one

that “involves . . . [a]ny conduct that by its nature is a sex offense against a minor.”

Critically, the jury’s verdict will be the first time that Thayer learns whether he had

a duty to register—directly contrary to the Constitution’s promise of fair notice.

II.

This case presents an excellent vehicle to resolve this exceptionally

important question.

This case cleanly presents the question for this Court’s resolution. Whether a

categorical or circumstance-specific approach governs 34 U.S.C. §§ 20911(5)(A)(ii),

(5)(C), (7)(I) was “pressed” and “passed upon” below. See Verizon Communc’ns, Inc. v.

FCC, 535 U.S. 467, 530 (2002) (“Any issue ‘pressed or passed upon below’ by a federal

court is subject to this Court’s broad discretion over the questions it chooses to take

on certiorari[.]” (quoting United States v. Williams, 504 U.S. 36, 41 (1992)). The district court considered the issue and entered a written opinion. It was the sole question

the Government presented on appeal. And the Seventh Circuit reached the merits of

that question when it reversed the district court. Thus, there are no procedural hurdles to review.

And this Court should not wait to intercede. Unfortunately, the Seventh Circuit’s misguided opinion does not stand alone. In decisions that straddle this Court’s

relevant precedents, four circuits have embraced the same view as the Seventh Circuit. See United States v. Dailey, 941 F.3d 1183 (9th Cir. 2019); United States v. Hill,

820 F.3d 1003 (8th Cir. 2016); United States v. Price, 777 F.3d 700 (4th Cir. 2015);

United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc).4 Still standing, these

decisions upend the Constitution’s promise of due process by relegating a legal question to the jury and leaving litigants to rely on its verdict to learn in the first instance

whether the defendant had a SORNA-imposed duty to register. At the same time,

these decisions promise to deluge court administrators with requests to unearth decades-old case files; to burden district courts with trials, giving rise to complex evidentiary questions; and to retraumatize witnesses by forcing them to recount offenses

long-ago put to rest. This Court previously has granted certiorari to address exceptionally important questions such as this one, even in the absence of a circuit split.

E.g., Gundy, 139 S. Ct. at 2122. It should do so here, too.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JESSICA ARDEN ETTINGER

Counsel of Record

FEDERAL DEFENDER SERVICES

OF WISCONSIN, INC.

22 East Mifflin Street, Suite 1000

Madison, Wisconsin 53703

(608) 260-9900

jessica_ettinger@fd.org

Counsel for Thomas Thayer

March 23, 2023

4 The Fifth Circuit also appears to favor a circumstance-specific approach, although it has

not affirmatively held that it applies. See United States v. Schofield, 802 F.3d 722, 729 (5th

Cir. 2015).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.