United States District Court, D. Montana, Billings Division
OPINION AND ORDER
P. WATTERS U.S. DISTRICT COURT JUDGE.
the Court is Defendant Joseph Ballantyne's motion to
dismiss (Doc. 15) the indictment. For the following reasons,
Ballantyne's motion is granted.
12, 1987, in Colorado state court, Ballantyne was sentenced
to 14 years in prison for Second Degree Sexual Assault. On or
before January 24, 2001, Ballantyne was released. (Doc. 16 at
3; Doc. 26 at 10). Upon his release, Ballantyne was required
to register as a sex offender under the Sex Offender
Registration and Notification Act, 34 U.S.C. § 20901 et
seq. The length of time Ballantyne was required to register
under SORNA depended upon his tier classification. SORNA
classifies sex offenders as either a one, a two, or a three.
34 U.S.C. § 16911(2-4). A tier three offender is
required to register for life, a tier two offender is
required to register for 25 years, and a tier one offender is
required to register for 15 years. 34 U.S.C. § 20915(a).
Ballantyne's registration period began when he was
released from prison in 2001. United States v. Del
Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015).
tier assigned to Ballantyne depended upon his 1987
conviction. If Ballantyne's 1987 conviction was
comparable to or more severe than abusive sexual contact
against a minor under the age of 13, he was designated a tier
three. 34 U.S.C. § 2091 l(4)(A)(ii). If his conviction
was comparable to or more severe than abusive sexual contact,
he was designated a tier two. 34 U.S.C. § 2091
l(3)(A)(iv). If his conviction was not comparable to either
of those offenses, he was designated a tier
34 U.S.C. § 20911(2).
April 4, 2019, Ballantyne was indicted on one count of
Failure to Register as a Sexual Offender, in violation of 18
U.S.C. § 2250(a). (Doc. 1). The indictment stated
Ballantyne was "a person required to register under the
Sex Offender Registration and Notification Act," who had
failed to register from approximately October 26, 2018, until
April 4, 2019. (Doc. 1). Ballantyne filed a motion to dismiss
the indictment, arguing he is a tier one offender and his
obligation to register expired in 2016. The government
responded Ballantyne is at least a tier two and his duty to
register does not expire until 2026 at the earliest.
separate case in 2011, the Presentence Investigation Report
determined Ballantyne was a tier three offender based on his
1987 conviction. (CR 11-43-BLG-SPW, Doc. 46 at 5). Here, the
government states that case's PSR
properly adjudicated Ballantyne's tier designation, but
does not argue Ballantyne's motion is barred by res
judicata. The government's lack of argument on res
judicata leads the Court to believe the government believes
the PSR was correct rather than binding.
determine Ballantyne's tier classification, the Court
employs the categorical approach. United States v.
Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2014)
(citing Taylor v. United States, 495 U.S. 575
(1990)). Under the categorical approach, the Court compares
the statutory definition of the prior offense with the
elements of the federal offense the government contends is
"comparable" to the prior offense.
Cabrera-Gutierrez, 756 F.3d at 1133. The prior
offense is "comparable" to the federal offense if
it is defined more narrowly than, or has the same elements
as, the federal offense. Cabrera-Gutierrez, 756 F.3d
at 1133. The prior offense is not "comparable" to
the federal offense if the statute defining the prior offense
"sweeps more broadly" than the federal offense.
Cabrera-Gutierrez, 756 F.3d at 1133. The Court may
not consider the facts giving rise to the prior offense, even
if the facts show the defendant's conduct satisfies the
federal elements. A comparison of the elements is the only
relevant inquiry. Cabrera-Gutierrez, 756 F.3d at
federal offense the government contends is
"comparable" to Ballantyne's prior offense is
either Abusive Sexual Contact against a minor under the age
of 13 (tier three) or Abusive Sexual Contact (tier two).
Because both offenses are premised on the crime of Abusive
Sexual Contact, the parties agree the Court should compare
Second Degree Sexual Assault with the federal crime of
Abusive Sexual Contact. If the crimes categorically match,
the Court should then use the age of the victim to determine
whether Ballantyne is a tier two or a tier three. United
States v. Mi Kyung Byun, 539 F.3d 982, 993 (9th Cir.
statute under which Ballantyne was convicted provided
"[a]ny actor who knowingly inflicts sexual penetration
or sexual intrusion on a victim commits sexual assault in the
second degree if...." Colo. Rev. Stat. § 18-3-403
(repealed 2000). The statute then lists several subsections
which contain additional elements to complete the crime, such
as the actor knows the victim is incapable of appraising the
nature of the victim's conduct or the actor knows the
victim erroneously believes the actor to be the victim's
spouse. Colo. Rev. Stat. § 18-3-403 (a-h) (repealed
2000). The parties agree the Court does not need to consider
the particular subsection Ballantyne was convicted under
because regardless of the subsection involved, the offense
had to include either "sexual penetration" or
"sexual intrusion." The parties further agree the
analysis rests squarely on the definition of "sexual
intrusion" because the categorical inquiry "need
focus only on the conduct falling at the least egregious end
of [the state statute's] range of conduct."
United States v. Baza-Martinez, 464 F.3d 1010, 1014
(9th Cir. 2006) (citation and internal quotation omitted).
The Court notes again neither party argues "sexual
penetration" and "sexual intrusion" are
themselves divisible elements.
Federal statute criminalizing Abusive Sexual Contact provides
"[w]hoever ... knowingly engages in or causes sexual
contact with or by another person-----" 18 U.S.C. §
2244(a). Like the Colorado statute, the federal statute then
lists several subsections which contain additional elements
to complete the crime, such as rendering the victim
unconscious or administering a drug which impairs the
victim's ability to control his or her conduct. 18 U.S.C.
§ 2244(a)(1) (citing 18 U.S.C. § 2241(b)(l-2)).
Also similar to the Colorado statute, the parties agree the
Court does not need to consider the particular subsection
Ballantyne's prior offense might compare to because the
federal offense must include "sexual contact."
this boils down to, according to the parties, is whether
"sexual intrusion" sweeps more broadly than
"sexual contact." "Sexual intrusion"
means "any intrusion, however slight, by any object or
any part of a person's body, except the mouth, tongue, or
penis, into the genital or anal opening of another
person's body if that sexual intrusion can reasonably be
construed as being for the purposes of sexual arousal,
gratification, or abuse." Colo. Rev. Stat. §
18-3-401(6). "Sexual contact" means "the
intentional touching, either directly or through the
clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of
any person." 18 U.S.C. § 2246(3).
argues sexual intrusion sweeps more broadly for two reasons,
both of which are based on the intent required. First,
Ballantyne argues sexual intrusion requires only the general
intent of a "knowing" sexual intrusion whereas
"sexual contact" requires the specific intent of an
"intentional" touching. Second, Ballantyne argues
sexual intrusion requires an objective standard for
determining intent whereas sexual intrusion requires a
subjective standard. To the first argument, the government
responds both sexual intrusion and sexual contact have
general and specific intent elements. To the second argument,
the government responds Colorado case law has interpreted the
statute to require a subjective standard. The parties'
arguments are conflated-which is unavoidable under the