United States v. Forte

          ORDER RE MOTION TO VACATE SENTENCE PURSUANT TO 28 U.S.C. § 2255

          Sharon L. Gleason UNITED STATES DISTRICT JUDGE

         Before the Court at Docket 90 is defendant Michael Forte's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255.^[1] The government responded in opposition at Docket 101. Mr. Forte replied to the government's opposition at Docket 102. The Court finds that “the motion and the files and records of the case conclusively show that [Mr. Forte] is entitled to no relief” and thus no hearing is required or necessary to the determination of the motion.^[2]

         I. Factual and procedural background

         In 1999, Mr. Forte pleaded guilty to and was convicted of Indecent Assault and Battery on a Person Aged 14 or Older in violation of Massachusetts state law.^[3] This conviction required him to register as a sex offender under Massachusetts law, but he did not comply with the Massachusetts registration requirements.^[4] In 2014, Mr. Forte left Massachusetts and came to Alaska but also did not register as a sex offender in Alaska.^[5]

         In 2015, Mr. Forte was charged in the District of Massachusetts with failure to register as a sex offender in violation of 18 U.S.C. § 2250(a) due to his failure to register in Massachusetts.^[6] He was soon arrested in Alaska and arraigned on the District of Massachusetts complaint.^[7] The case was transferred from the District of Massachusetts to the District of Alaska pursuant to Federal Rule of Criminal Procedure 20, and Mr. Forte was arraigned on the Indictment returned in the District of Massachusetts.^[8] Mr. Forte pleaded guilty without a plea agreement.^[9] In October of 2015, the Court sentenced him to 18 months, and he is now on supervised release.^[10] Mr. Forte did not appeal his conviction.

         II. Mr. Forte's procedural argument

         Motions pursuant to 28 U.S.C. § 2255 are subject to a one-year statute of limitations.^[11] Mr. Forte filed his § 2255 motion in June of 2019, more than three and a half years after his judgment became final. Mr. Forte maintains that his late motion should be excused because he is claiming actual innocence, which equitably tolls the statute of limitations.^[12] Thus, Mr. Forte's claim of equitable tolling “rises and falls with [his] claim on the merits.”^[13] The Court will consider the merits of his actual innocence claim to determine whether his petition is timely.

         III. Mr. Forte's actual innocence argument

         The federal statute under which Mr. Forte was convicted, 18 U.S.C. § 2250, criminalizes the knowing failure to register or update a registration as required by the Sex Offender Registration and Notification Act (“SORNA”).^[14] SORNA, in turn, requires that a “sex offender” must register and keep the registration current “in each jurisdiction where the offender resides . . . .”^[15] As relevant here, a “sex offender” is someone who has been convicted of a “sex offense.”^[16] A “sex offense” is defined as “a criminal offense that has an element involving a sexual act or sexual contact with another.”^[17] SORNA does not define “sexual act” or “sexual contact, ” but those terms are defined in Title 18 of the United States Code.^[18]

         Mr. Forte asserts that under the categorical approach, his Massachusetts state conviction does not trigger SORNA because the Massachusetts law criminalizes a broader range of conduct than SORNA includes in its definition of a “sex offense.” Specifically, Mr. Forte contends that Massachusetts state law defines “sexual contact” more broadly than does the Title 18 definition and thus “the definition of ‘sexual contact' necessary to commit indecent assault and battery . . . is clearly not a categorical match with the Title 18 definition of ‘sex offense.'”^[19] According to Mr. Forte, the Massachusetts conviction thus does not qualify as a predicate offense under SORNA.^[20]

         The Court need not consider whether Massachusetts' definition of “sexual contact” is a categorical match to “sexual contact” as defined by federal law. Here, Mr. Forte's conviction is for knowingly failing to register as required under SORNA, not for knowingly failing to register after being convicted of a crime that involved “sexual contact.” Thus, any violation of SORNA-regardless of the specific definition applied-supports his conviction. Mr. Forte ignores that SORNA supplies other definitions of “sex offense” that apply to his case. A “sex offense” also includes “a criminal offense that is a specified offense against a minor.”^[21] A “specified offense against a minor” includes any offense against a minor that involves “[a]ny conduct that by its nature is a sex offense against a minor.”^[22] This provision is known as SORNA's residual clause or catchall provision.^[23] In its prosecution of Mr. Forte for failing to register, the government specifically relied on the residual clause as the basis for the facts it would prove at trial: “In this case, it's the definition of a specified offense against a minor. And that term specified offense against a minor means an offense against a minor that involves any conduct that by its nature is a sex offense against a minor.”^[24]

         The Ninth Circuit, relying on its earlier decision in United States v. Byun, has recently held that “the only acceptable interpretation of the residual clause is to apply a non-categorical approach regarding the age of the victim.”^[25] The Ninth Circuit's reasoning applies with equal force to support using the non-categorical approach regarding the entirety of the residual clause:

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.'” 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.” Finally, and most pointedly, the residual clause covers “any conduct that by its nature is a sex offense against a minor.” The use of “conduct” in the residual clause, as opposed to “conviction, ” strongly indicates a non-categorical approach applies.^[26]

         The District of Nevada has also recently concluded that the non-categorical approach applies in determining whether a defendant's conduct in committing a predicate offense satisfies the specified-offense portion of the residual clause: “Nothing in the court's reasoning [in Byun] indicates that it intended to limit the use of the circumstance-specific approach to this fact [of the victim's age].”^[27] An en banc Eleventh Circuit has also held that “[a]lthough the Ninth Circuit [in Byun] focused only on the age of the victim, its approach supports our conclusion that SORNA permits examination of the defendant's underlying conduct-and not just the elements of the conviction statute-in determining what constitutes a ‘specified offense against a minor.'”^[28]

         Applying the non-categorical approach, a court examines “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.”^[29] Mr. Forte was convicted of Indecent Assault and Battery on Person Fourteen or Older.^[30] Although this statute proscribes conduct that includes conduct directed at an adult victim, the parties here do not dispute that the victim in Mr. Forte's case was a sixteen-year old girl.^[31] Mr. Forte asserts that Massachusetts defines an indecent assault and battery as an intentional and unjustified touching of a private area, including, but not limited to, the breast, abdomen, thigh, buttocks, genital or pubic areas of a female.^[32] Here, the parties do not dispute that Mr. Forte's conduct involved him penetrating the victim's vagina with his penis and then ejaculating on her leg, despite her repeatedly telling him to stop, telling him he was hurting her, and trying to physically force him off of her.^[33] This conduct is clearly a sex offense against a minor.^[34] It constitutes a “specified offense against a minor” and, in turn, qualifies as a “sex offense.”

         Because Mr. Forte was convicted of a sex offense as defined by SORNA, he was required to register under SORNA's directives. His knowing failure to do so violated 18 U.S.C. § 2250, and he is not actually innocent of that crime. Because Mr. Forte is not actually innocent of the crime of conviction, his procedurally ...