Unreported / Non-Citable
Background
Ketric Dwane Turner was previously convicted of child molestation in Georgia and was required to register as a sex offender under the Sex Offender Registration and Notification Act. After moving from Georgia to Amarillo, Texas, he failed to register his address for approximately two years. Officers encountered him during a September 2024 traffic stop, where he presented false identification but was identified through facial-recognition technology. He was later charged with failing to register in violation of 18 U.S.C. § 2250(a).
The presentence report classified Turner’s Georgia conviction as a tier III offense under SORNA, producing a base offense level of 16 and an advisory Guidelines range of 30 to 37 months. Turner did not object. The district court imposed 36 months in prison and five years of supervised release, with the prison term to run concurrently with any sentences imposed in pending state cases. The court stated that it would impose the same sentence regardless of the applicable Guidelines range.
The Court’s Holding
The Fifth Circuit held that the district court erred by treating Turner’s Georgia child-molestation conviction as a tier III offense. Under the categorical approach, the Georgia statute swept more broadly than the comparable federal offense of abusive sexual contact because it covered conduct, including masturbating in a minor’s presence, that did not require intentional touching of the minor’s genitalia. The conviction therefore could not support a tier III designation.
Nevertheless, the court affirmed under plain-error review because Turner failed to show that the error affected his substantial rights. The sentencing judge expressly stated, both orally and in a written Statement of Reasons, that the same sentence would have been imposed regardless of the Guidelines calculation. The judge also identified Turner’s extensive criminal history, prolonged failure to register, presentation of false identification, and risk of continued noncompliance as grounds supporting the sentence under 18 U.S.C. § 3553(a).
The court also declined to remand for alleged clerical or substantive errors in the record. Turner could seek correction of clerical errors from the district court under Federal Rule of Criminal Procedure 36, while his substantive claims did not satisfy plain-error review. The court denied his motion to supplement the appellate record, or alternatively to take judicial notice, because the Georgia indictment and judgment were not presented below and Turner did not explain how they would assist in resolving the tier-classification issue.
Key Takeaways
- Georgia’s child-molestation statute is categorically broader than the federal abusive-sexual-contact offense and therefore did not support Turner’s SORNA tier III classification.
- An unpreserved Guidelines error does not warrant reversal when the defendant cannot show a reasonable probability of a lower sentence and the record demonstrates that the sentencing court would have imposed the same term under the Section 3553(a) factors.
- Rule 36 clerical issues may be raised in the district court, while supplementation under Appellate Rule 10(e) generally cannot be used to add evidence that was never before that court.
Why It Matters
The decision illustrates the importance of applying the categorical approach when determining a defendant’s SORNA tier: the statutory elements, rather than the defendant’s underlying conduct, ordinarily control. A state offense covering more conduct than the relevant federal comparator cannot support the higher tier.
It also highlights the consequences of failing to preserve a sentencing objection. Although the Guidelines range was incorrectly calculated, Turner bore the burden on plain-error review, and the sentencing court’s detailed reliance on independent Section 3553(a) considerations prevented him from establishing a reasonable probability that the error changed his sentence.