PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4595

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v.
THOMAS EARL FAULLS, SR.,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:13-cr-00001-GEC-1)

Argued:

October 28, 2015

Decided:

May 5, 2016

Before SHEDD, DIAZ, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in

which Judge Shedd and Judge Harris joined. Judge Shedd wrote a
separate concurring opinion.

ARGUED: Timothy Anderson, ANDERSON & ASSOCIATES, PC, Virginia

Beach, Virginia, for Appellant. Nancy Spodick Healey, OFFICE OF
THE UNITED STATES ATTORNEY, Charlottesville, Virginia, for
Appellee. ON BRIEF: Anthony P. Giorno, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.

DIAZ, Circuit Judge:

Thomas Faulls was convicted of kidnapping in violation of
18

U.S.C.

1201(a)(1),

interstate

domestic

violence

in

violation of 18 U.S.C. 2261(a)(2) and (b)(4), and possession

of a firearm in furtherance of a crime of violence in violation
of 18 U.S.C. 924(c).

The district court sentenced Faulls to

295 months imprisonment and also required him to register as a

sex

offender

under

the

Sex

Offender

Registration

and

Notification Act (SORNA), 42 U.S.C. 16911 et seq.

On appeal, Faulls contends that his counsel was ineffective
in opening the door to testimony by a government expert, and in
failing to object to the district courts decision to keep the
jury late one evening.

He also contends that the district court

erred in admitting prior acts evidence and in requiring him to

register as a sex-offender.

For the reasons that follow, we

affirm.

I.
We recite the relevant evidence in the light most favorable
to the government.

United States v. Seidman, 156 F.3d 542, 547

(4th Cir. 1998).

A.
Thomas and Lori Faulls were married for about twenty-five
years; they had two children.

Their marriage was volatile, and

they separated in June 2012.

Following their separation, the couples interactions were
marked

by

series

relevant here.

of

violent

episodes,

three

of

which

are

On June 28, 2012, Lori returned to the marital

home in Mineral, Virginia, to gather some of her belongings (the

Mineral incident).

There, Faulls confronted her about the

separation and expressed frustration that their children never

answered his calls.

He approached Lori with a gun and laughed

when she asked if he was going to kill her.

When Lori told

Faulls that she was staying with a friend, Faulls called the
friend to say that she ruined his marriage by allowing Lori to
stay with her and that it would be her fault if Lori died.
Faulls then began yelling at Lori, telling her that the marital
home was her home and demanding to know why she was leaving.
Instead of leaving immediately, Lori stayed with Faulls to calm
him down.

When she did leave, Faulls followed her and, at some

point, hit her car with his truck. 1

Lori told police that she wasnt sure if it was an

accident or if Faulls acted intentionally because she was
scared to death. J.A. 19899.
3

Shortly after this incident, Lori moved to Williamsburg,

Virginia, to

live

with

her

daughter

Britnee.

In

mid-August

2012, Faulls came to Britnees apartment and confronted her for

not answering his calls (the Williamsburg incident).

When

Britnee tried to call 911, Faulls attacked the women and took
their
leave,

cell

phones

but

Eventually,

he

and

car

repeatedly

Lori

was

keys.

Faulls

demanded

able

to

that

convince

allowed
Lori

Faulls

Britnee

return
to

to

home.

leave

the

The third incident resulted in Faullss convictions.

On

apartment. 2

August 22, 2012, Lori drove Faulls to a repair shop, purportedly

to pick up his truck.
marital home.

In fact, the truck was parked behind the

On the way, Faulls pretended to call the shop to

see if his truck was ready, but he actually called one of the
couples children, knowing that no one would answer.

Faulls

told Lori that the truck was not ready and they returned to the
house,

where

Lori

declined

his

invitation

to

come

inside.

Faulls became angry and revealed that his truck had been parked
behind the house the whole time.

He took Loris cell phone and

car keys, then showed her a pair of zip ties that had been
fashioned into handcuffs.

He asked Lori whether she wanted to

do this the easy way or the hard way.

2

J.A. 215.

Faulls then

Lori did not report this incident to the police.

ordered her into the truck, where Lori saw his shotgun in the
backseat.
away,

Faulls locked the passenger door, and before driving

threw

Loris

cell

phone

out

the

window.

That

night,

Faulls and Lori stayed at a hotel in Elkins, West Virginia,

nearly 200 miles from Mineral.
The
Lori

next

told

morning,

him

that

Faulls
she

acquiesced out of fear.

sought

was

to

have

sex

uncomfortable

with

but

Lori.

eventually

That day, Faulls and Lori went to

several stores, where Lori bought clothes and hygiene products.

They also stopped at a liquor store and purchased a bottle of
vodka.
That evening, Faulls and Lori went to a restaurant and bar.
Faulls got drunk and told patrons sitting nearby that Lori was
his wife and that he had kidnapped her.

The pair left shortly

thereafter

there

available
truck.

and,
at

after
nearby

discovering
hotel,

that

began

At that point, Lori fled.

walking

were
back

no

rooms

toward

the

She saw two women getting

into a car and asked them to take her to the police.

The women

drove her to the sheriffs office, where Lori reported what had
happened to her.
B.
Prior to trial, the district court preliminarily denied the
governments

motion

testify

the

in

to

allow

governments

domestic

violence

case-in-chief,
5

expert

stating

to

that

admission

would

depend

on

the

examination of the witnesses.

scope

of

defense

counsels

At trial, the government called

the bartender at the restaurant where Faulls and Lori stopped

for the evening.

On cross-examination, Faullss counsel asked

the bartender whether Lori was free to leave and whether he

believed Lori was being held against her will.

The bartender

answered that Lori was free to leave and that, from what he
observed, she was not being held against her will.

Although

Faullss counsel insisted that he merely asked the questions to

help the jury understand how close Lori was to the bars exit,
the court concluded that counsel had opened the door to the
governments expert because the issue of whether Lori could have
fled had both a physical and a psychological component.

J.A.

392.
The experts testimony focused on her research regarding
intimate partner violence, risk factors involved with this type
of violence, and the psychological components of abuse.

She did

not testify that Lori had been a victim of domestic violence,

and

the

emphasize

court
that

addressed
the

expert

the

jury

had

before

never

the

interviewed

testimony
or

to

examined

Lori.
The district court also allowed the government to introduce
evidence of the Mineral and Williamsburg incidents under Federal
Rule

of

Evidence

404(b).

The
6

court

twice

gave

the

jury

limiting instruction regarding this evidence, stating that it

could

be

considered

only

to

prove

the

defendants

motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence

of

mistake

or

accident

in

connection

with

Faullss

charges, but not as evidence of Faullss character or propensity

to commit the offenses.
At

the

end

of

J.A. 200, 402.

the

first

day

of

trial,

weather

reports

forecast a snowstorm that threatened a delay in the proceedings.

The lawyers did not want Lori to testify over two days, so the
court asked the jurors if they would be willing to stay late to
complete her testimony.

Faullss counsel did not object, and

though at least one juror did not want to stay late, the court
chose

to

complete

the

testimony

that

evening.

The

court

adjourned at 7:40 PM.

The

jury

convicted

Faulls

of

kidnapping,

interstate

domestic violence, and possessing a firearm in furtherance of a

crime

of

committed

violence.

The

aggravated

sexual

jury

also

abuse

in

determined
violation

that
of

18

Faulls
U.S.C.

2241(a)(2), which served as the predicate crime of violence

for the interstate domestic violence charge and also enhanced
Faullss sentencing range.

The district court further enhanced

Faullss

after

sentencing

range

it

determined

that

Faulls

obstructed justice when he called his mother from jail and asked
her to convince Lori not to testify.
7

II.
A.
We

first

consider

Faullss

argument

that

he

was

denied

effective assistance of counsel, an issue we review de novo.

United

States

v.

Faulls

contends

Hall,

that

551

his

F.3d

counsel

257,
was

266

(4th

Cir.

ineffective

2009).

during

his

cross-examination of the bartender, thereby opening the door to

allow

the

government

to

call

its

domestic

violence

expert.

Faulls also contends that his counsel was ineffective when he

failed to object to the courts decision to keep the jury late
to complete Loris testimony.
We decline to reach Faullss claim.

Unless an attorneys

ineffectiveness conclusively appears on the face of the record,

such claims are not addressed on direct appeal.
v. Benton, 523 F.3d 424, 435 (4th Cir. 2008).

United States

Because there is

no conclusive evidence of ineffective assistance on the face of

this record, we conclude that Faullss claim should be raised,
if at all, in a 28 U.S.C. 2255 motion.

See United States v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

B.
Next,
admitted

we

prior

consider
acts

whether

evidence

the

under

district
Rule

court

404(b).

correctly
We

review

evidentiary rulings for abuse of discretion, United States v.

Queen, 132 F.3d 991, 995 (4th Cir. 1997), and will not reverse a
8

district courts decision to admit prior acts evidence unless it

was arbitrary or irrational, United States v. Rawle, 845 F.2d
1244, 1247 (4th Cir. 1988) (citing United States v. Greenwood,
796 F.2d 49, 53 (4th Cir. 1986)).
Faulls

asserts

admitted

testimony

incidents

because

that

the

district

regarding
the

the

evidence

necessary to the charges.

court

Mineral
was

should
and

not

have

Williamsburg

neither

relevant

nor

Alternatively, Faulls argues that the

probative value of the evidence was substantially outweighed by

its

prejudicial

effect

because

the

evidence

(if

believed)

demonstrated a pattern of domestic violence.

Evidence
persons

of

prior

character

in

wrongs

is

order

to

not
show

admissible
that

on

to
a

prove

particular

occasion the person acted in accordance with the character.

Fed.

R.

Evid.

admissible

for

opportunity,

404(b)(1).
other

intent,

However,

purposes,

such

including

preparation,

or

plan.

evidence

may

to

motive,

show
Id.

be

404(b)(2).

Prior act evidence is also admissible under Rule 404(b) to show

the victims state of mind.

E.g., United States v. Powers, 59

F.3d 1460, 1464 (4th Cir. 1995).

To be admissible under any theory, the prior act evidence
must

be

(1) relevant

to

an

issue

(2) necessary; and (3) reliable.

other

than

character;

United States v. Siegel, 536

F.3d 306, 317 (4th Cir. 2008) (quoting United States v. Wells,
9

163 F.3d 889, 895 (4th Cir. 1998)).

Evidence is necessary when

it is probative of an essential claim or an element of the

offense, Queen, 132 F.3d at 997, or when it furnishes part of
the context of the crime, United States v. McBride, 676 F.3d
385, 398 (4th Cir. 2012) (quoting Rawle, 845 F.2d at 1247 n.4).
Even so, a district court may exclude the proffered evidence if
its

probative

value

is

substantially

of . . . unfair prejudice.

outweighed

Fed. R. Evid. 403.

by

danger

The danger of

prejudicial effect subsides when the district court gives proper

limiting instructions, particularly in the face of overwhelming
evidence of guilt.

See Powers, 59 F.3d at 1468; see also United

States

770

v.

Briley,

F.3d

267,

275

(4th

Cir.

2014)

(Rule

404(b) is a rule of inclusion.).

We discern no error in the district courts evidentiary
rulings.

First, the evidence was relevant to issues other than

character or propensity.

A jury could reasonably conclude that

Faullss motive with respect to the Mineral and Williamsburg

incidents was to stop Lori from leaving the marital home or,
generally, the marriage.

That same jury could conclude that

Faulls committed the charged offenses because he was again upset

that Lori wanted to leave the marital home and rejected his
invitation to come inside.
A jury could also reasonably conclude that the evidence
demonstrated Faullss control and domination over Lori, which
10

was necessary to explain Loris state of mind and her apparent

willingness to remain with Faulls during the events leading to
the charged offenses, even though Lori and Faulls were out in
public,

surrounded

by

others.

See

Powers,

59

F.3d

at

1467

(concluding that evidence of previous physical abuse by a father

accused of sexually assaulting his daughter was necessary to
show

the

power

and

control

he

had

over

his

victim

and

his

victims fear of retribution for standing up to or reporting

him).
Finally,
evidence

was

we

conclude

not

that

the

substantially

unfair prejudice to Faulls.

probative

outweighed

value

by

the

of

danger

the
of

The evidence was highly probative,

as it demonstrated Faullss domination over Lori, his motive for

committing the offenses, and Loris state of mind throughout the
ordeal.

Additionally, the district court gave the jury clear

limiting

instructionsreminding

consider

the

propensity

to

evidence
commit

to

the

the

prove
charged

jury

that

Faullss

it

should

character

offenseswhich

not

or

his

obviated

the

danger of prejudice.
C.
Last,
required

we

Faulls

consider
to

whether

register

as

the
a

district

sex

offender

conviction for interstate domestic violence.

11

court

correctly

based

on

his

The parties dispute whether Faulls preserved this claim for

appeal, and the resolution of this preliminary question directs
our standard of review.

Usually, we review a district courts

imposition of special conditions of supervised release for abuse

of discretion.
Cir. 2008).
to

object

United States v. Holman, 532 F.3d 284, 288 (4th

The government argues, however, that Faulls failed

at

sentencing,

error.

Although

district

court

Faulls

asked

thus
did

for

cabining
not

Faullss

our

formally
thoughts

review

to

object

when

on

this

plain
the

issue

responding merely, [W]e denied from the beginning this is a sex

offense, but I would obviously leave it to the discretion of the
Court, J.A. 510we conclude that Faulls preserved the issue for
review.
Cir.

See United States v. Lynn, 592 F.3d 572, 57779 (4th

2010)

(abandoning

formulaic

objection

standard

and

providing, with examples, that the goal of the contemporaneousobjection rule is to preserve the record and alert the district
court to its responsibility to address the issue).
1.
Faulls contends that the district court should not have
reached the question of whether his conviction for interstate
domestic violence was a sex offense because the government gave
no clear indication that this should be a sex offender case
based

on

Appellants

the
Br.

[Department
at

24.

If

of
by
12

Justice]s
this

Faulls

own

guidelines.

means

that

the

government

did

registration
mistaken.

not

as

urge

If,

the

district

condition

on

the

of

other

court

to

supervised

hand,

impose

release,

Faulls

means

SORNA
he

that

is
the

Department of Justice Guidelines require the government to give

notice, he has not pointed this court to such a requirement, and
we have not found one.
claim

to

have

district

been

officer

courts
to

surprised

local

determine

appropriate,

and

In any event, Faulls cannot credibly

by

standing
whether

gives

the

the

issue,

order
sex

court

given

directs

offender

the

that

the

probation

registration

discretion

to

is

impose

the

condition,

sex

condition of supervised release at sentencing.

2.
Turning
offenders
which

are

the

to

the

merits

required

offender

to

of

the

register

resides,

works,

imposed
in

every

and

jurisdiction

attends

school.

in
42

U.S.C. 16913(a).

A sex offender is someone who is convicted

of

which

sex

offense,

in

relevant

part

is

defined

as

criminal offense that has an element involving a sexual act or

sexual contact with another, or a Federal offense . . . under
chapter 109(A) [Sexual Abuse offenses under 18 U.S.C. 2241 et
seq.].

42 U.S.C. 16911(1), (5)(A)(i), (iii).

Faulls contends that because interstate domestic violence

is not one of the enumerated crimes that qualifies as a sex
offense under SORNA, see 16911(5)(A)(iii), the inquiry ends
13

there,

and

the

district

court

erred.

Faulls

is

incorrect,

however, because the statute also provides other definitions of

a sex offense, including an offense with an element involving a
sexual act or sexual contact with another.
The

government

says

that

Faullss

16911(5)(A)(i).
interstate

violence conviction satisfies this definition.

domestic

The governments

argument begins with the offense elements of interstate domestic

violence, which are (1) the defendant and victim are spouses or
intimate partners; (2) the defendant caused the victim to travel
in interstate commerce by force, coercion, duress, or fraud;
(3) the

defendant,

in

the

course

of

or

to

facilitate

such

travel, committed a crime of violence against the victim; and

(4) the defendant committed such acts knowingly and willfully.
18 U.S.C. 2261(a)(2).
under

1201(a)(1)

Here, the government alleged kidnapping

and

aggravated

sexual

abuse

2241(a)(2) as the underlying crimes of violence.

convicted

Faulls

of

reasonable

doubt

that

kidnapping

and

Faulls

committed

had

also

found

under

The jury
beyond

aggravated

sexual

abuse.
Interstate
enhancement
constitutes

for

domestic

violence

offenders

sexual

abuse

aggravated sexual abuse.

whose
under

also

contains

qualifying
chapter

penalty

violent

conduct

109A,

See 2241, 2261(b)(4).

including
Because the

jury found that Faulls committed aggravated sexual abuse, he

14

faced an increased statutory maximum penalty ranging from five

years imprisonment to any term of years or life imprisonment.
2241(a), 2261(b)(4)(5).
The government contends that the statutory enhancement is
an element of the interstate domestic violence offense under
Apprendi v. New Jersey, 530 U.S. 466 (2000), which in turn means
that

it

is

also

an

element

of

the

offense

for

purposes

of

determining whether Faulls was convicted of a sex offense under

SORNA.

Because aggravated sexual abuse requires engaging in a

sexual act, [which] . . . necessarily requires physical contact

with another, United States v. White, 782 F.3d 1118, 1137 (10th
Cir. 2015), the government contends that Faulls was convicted of
a criminal offense that has an element involving a sexual act
or sexual contact with another, 42 U.S.C. 16911(5)(A)(i), and
accordingly,
SORNA.

was

subject

to

sex

offender

registration

under

We agree with the governments conclusion but not its

reasoning.
3.
The

Constitution

requires

jury

to

find,

beyond

reasonable doubt, the elements of the criminal offense charged.

In Apprendi, the Supreme Court held that this bedrock principle
also applies to sentencing, declaring that [o]ther than the
fact of a prior conviction, any fact that increases the penalty
for

crime

beyond

the

prescribed
15

statutory

maximum

must

be

submitted to a jury, and proved beyond a reasonable doubt.

U.S.

at

490.

Thus,

the

distinction

between

530

substantive

offense element and a sentencing (or penalty) enhancement is

meaningless

when

the

enhancement

requires

facts

or

circumstancesseparate from those composing the base offenseto

have taken place in order to trigger a greater punishment than
the base offense statutorily carries.

Id. at 47678 & n.4.

In Alleyne v. United States, the Court extended this rule

to facts that increase the prescribed statutory minimum penalty
i.e., facts that establish a new or higher mandatory minimum
sentence.

133 S. Ct. 2151, 216263 (2013).

The Court reasoned

that the impossib[ility] [of] disput[ing] that facts increasing

the legally prescribed floor aggravate the punishment leads to
the

logical

conclusion

that

the

core

crime

and

the

fact

triggering the mandatory minimum sentence together constitute a

new, aggravated crime, each element of which must be submitted
to the jury.

Id. at 2161 (emphasis omitted).

Here, the jury found Faulls guilty of interstate domestic

violence.

For purposes of enhancing Faullss sentence, the jury

also found beyond a reasonable doubt that Faulls had committed

aggravated sexual abuse.

Relying on Apprendi and Alleyne, the

government

the

contends

that

jurys

finding

also

necessarily

means that aggravated sexual abuse is an element of the charged

interstate domestic violence offense for purposes of SORNA.
16

We

do not agree.
for

the

The fact that a jury made the finding necessary

sentencing

enhancement

certainly

cures

any

Apprendi

issue, but it does not answer the statutory question of whether

that same finding is an element of Faullss offense under
16911(5)(A)(i).
The government directs us to United States v. Campbell, 259
F.3d 293 (4th Cir. 2001), as support for its view, but that case
is

inapposite.

In

Campbell,

we

held

that

the

penalty

enhancements in 18 U.S.C. 111(b) were substantive elements of

the

offense

that

needed

to

be

proved

to

the

jury

beyond

reasonable doubt, not sentencing enhancements the court could

deem satisfied despite the jurys opposite finding.
298300.

259 F.3d at

But there we were conducting a constitutional inquiry.

See also, e.g., United States v. Brown, 757 F.3d 183, 188 (4th
Cir. 2014) (observing that the drug quantity attributable to the
conspiracy, as provided in the penalty subsection of 21 U.S.C.
841, was a question for the jury under Alleyne because of the
mandatory

minimum

sentences

each

quantity

category

carried),

cert. denied, 135 S. Ct. 229 (2014); United States v. Promise,

255 F.3d 150, 15657 (4th Cir. 2001) (en banc) (holding the same
under Apprendi).

The statutory question here is substantially

different.
Accordingly, we must look elsewhere for guidance.
that

for

SORNAs

sex-offender
17

registration

Recall

requirements

to

properly

apply

to

Faulls,

he

must

have

been

convicted

of

criminal offense that has an element involving a sexual act or

sexual

contact

with

another.

42

U.S.C.

16911(5)(A)(i)

(emphasis added).

Recently, in United States v. Price, 777 F.3d

700

cert.

(4th

Cir.),

denied

135

S.

Ct.

2911

(2015),

we

confronted the question of whether the defendant was convicted

of a sex offense in order to determine whether SORNAs sexoffender registration requirements should apply.

Although we

were

offense

analyzing

16911(5)(A)(ii)

SORNAs

definition

(specified

of

[criminal]

sex

offense

against

in
a

minor) and its extension at 16911(7) (expanding subsection

(5)(A)(ii)s definition), we nonetheless examined the statutory
language of 16911(5)(A)(i).
the

facts-based

Id. at 70708.

circumstance-specific

In holding that

approach

applies

to

sex offense determination under 16911(5)(A)(ii), (7), we noted

in dicta that Congresss use of elements in 16911(5)(A)(i)
(the subsection before us now) implicat[es] the categorical and
modified categorical frameworks.

Id. at 708. 3

Other courts of appeals have also found these frameworks

relevant to the determination of what constitutes a sex-offense
3

Cf. United States v. Berry, 814 F.3d 192, 195 (4th Cir.
2016) (providing that courts have embraced the categorical and
modified categorical approaches in determining a sex offenders
tier classification).

18

under

SORNA,

although

none

has

precise context before us.

F.3d

1233,

123438

(7th

squarely

applied

them

in

the

See United States v. Rogers, 804

Cir.

2015)

(affirming

the

district

courts decision to enhance defendants sentence under Guideline

2A3.5(b)(1)(A) for committing a sex offense while in failureto-register status, and finding that the categorical approach
applies

to

the

threshold

16911(5)(A)(i));

United

definition
States

v.

of

sex

offense

Gonzalez-Medina,

under

757

F.3d

425, 430 (5th Cir. 2014) (distinguishing 16911(5)(A)(i) from

16911(5)(C), and applying the circumstance-specific approach
to

the

defendants

prior

state

conviction

for

having

sexual

intercourse with a child age sixteen or older), cert. denied,

135 S. Ct. 1529 (2015); United States v. Mi Kyung Byun, 539 F.3d
982,

991-92

(9th

Cir.

2008)

(comparing

16911(5)(A)(i)

to

16911(7)(I), and applying the circumstance-specific approach

to

the

alien

defendants

for

purposes

federal
of

conviction

prostitution).

for

importation

Following

the

of

an

lead

of

Price and our sister circuits, we proceed here to apply the

categorical and modified categorical approaches.
Thus, we focus[] solely on the elements of interstate
domestic violence, rather than on the specific way in which
[Faulls] committed the crime, to determine whether interstate
domestic

violence

qualifies

as

criminal

element involving a sexual act or contact.

19

offense

with

an

Price, 777 F.3d at

704-05 (quoting Nijhawan v. Holder, 557 U.S. 29, 34 (2009)). 4

In

applying the traditional categorical approach, we compare the

elements

of

elements

of

offense).

the

defendants

the

federal

There

comprising

the

is

statute

offense

offense

(also

categorical
of

of

called

match

conviction

conviction

if

[are]

narrower than, those of the generic offense.

the

to

generic

[t]he
the

the

same

elements
as,

or

Id. at 704; e.g.,

United States v. Torres-Miguel, 701 F.3d 165, 16869 (4th Cir.

2012)

(finding

no

categorical

match

between

defendants

California felony threat conviction and a crime of violence

under

the

U.S.

Sentencing

Guidelines

because

threatening

to

commit a crime against another that will result in death or

serious

injury

(crime

of

conviction)

does

not

necessarily

require the use, attempted use, or threatened use of physical

force against [another] (generic offense)).

The district court did not have the benefit of our

decision in Price, and neither party on appeal has urged that we
apply the elements-based approach to determine whether Faulls
was convicted of a sex offense.
Although we generally do not
consider issues not passed upon below, the question before us is
purely one of law, and we perceive no injustice or unfair
surprise in doing so here.
See Singleton v. Wulff, 428 U.S.
106, 12021 (1976) (The matter of what questions may be taken
up and resolved for the first time on appeal is one left
primarily to the discretion of the courts of appeals, to be
exercised on the facts of individual cases.).
Nor are we are
bound by the district courts reasoningor the arguments
advanced by the partiesin exercising our plenary review.
United States v. Segers, 271 F.3d 181, 183 (4th Cir. 2001);
United States v. Rhynes, 218 F.3d 310, 320 (4th Cir. 2000).

20

The modified categorical approach is almost identical, but

it

applies

only

to

divisible

statutesthose

containing

alternative elementsand it entails a brief detour.

777 F.3d at 705.
consider

limited

Price,

Before looking for a categorical match, we

number

of

trial

documents,

including

the

indictment and jury instructions, to determine which alternative

element formed the basis of the conviction.
States, 133 S. Ct. 2276, 228485 (2013).
elements-based approach resumes.

Descamps v. United
Then the traditional

Id.; e.g., United States v.

Castleman, 134 S. Ct. 1405, 1414 (2014) (applying the modified

categorical approach to a Tennessee statute that defined assault
in

three

conviction

distinct
for

ways,

and

finding

intentionally

or

that

knowingly

the

defendants

caus[ing]

bodily

injury to the mother of his child qualified as a misdemeanor

crime of domestic violence under 18 U.S.C. 922(g)(9) because
it necessarily involve[d] the use of physical force (internal
quotation marks omitted)).
Under
interstate

either

approach,

we

domestic

violence

with

compare
the

the

generic

elements

of

offensehere,

SORNAs definition of a sex offense: a criminal offense that

has as an element involving a sexual act or sexual contact with
another.

42

U.S.C.

16911(5)(A)(i).

As

relevant,

to

be

convicted of interstate domestic violence, the defendant must

commit

an

underlying

crime

of
21

violence

against

spouse

or

intimate-partner victim.

See 18 U.S.C. 2261(a)(2).

A crime

of violence is defined as
[A]n offense that has an element the use, attempted
use, or threatened use of physical force against the
person or property of another, or any other offense
that is a felony and that, by its nature, involves a
substantial risk that physical force against the
person or property of another may be used in the
course of committing the offense.
16.
It is well established that some sex offenses qualify as
crimes

of

4B1.2,

violence.
comment.

See
(n.1)

[hereinafter

U.S.S.G.

offenses

the

in

U.S.

Sentencing

(U.S.

Sentencing

4B1.2]

enumerated

Guidelines

(including

list

of

Commn

Manual
2012)

forcible

established

crimes

sex
of

violence); United States v. Peterson, 629 F.3d 432, 435 (4th

Cir. 2011) (calling the Guidelines commentary authoritative and
binding).
offense,

But a crime of violence is not necessarily a sex

which

means

that

interstate

domestic

violence

necessarily sweeps more broadly and criminalizes more conduct

than the generic federal sex offense, precluding a categorical
match.

Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014)

(quoting Descamps, 133 S. Ct. at 2283).

As

result,

we

consider

whether

interstate

domestic

violence is divisible for purposes of the modified categorical

approach, meaning it must set[] out one or more elements of the
offense in the alternative.

Descamps, 133 S. Ct. at 2281.

22

In

Descamps

v.

United

States,

the

Californias burglary statute

alternative

elements

Supreme

Court

found

that

d[id] not concern any list of

but

rather

involve[d]

simple

discrepancy between generic burglary, which requires unlawful

entry, and Californias statute, which does not.

Id. at 2285.

So although Californias statute was defined using disjunctive

elements, see Cal. Penal Code Ann. 459 (West 2010) (defining
burglary as the entering of certain locations with intent to
commit grand or petit larceny or any felony (emphasis added)),
and

therefore

refer[red]

to

several

different

crimes,

Descamps, 133 S. Ct. at 2284 (quoting Nijhawan, 557 U.S. at 35),

none of those crimes required breaking and entering.

Because

Californias burglary statute did not match the generic version

of

burglary

envisioned

by

the

federal

statute,

applying

the

modified categorical approach was improper.

We grappled with the reach of Descamps in United States v.
Cabrera-Umanzor,

728

F.3d

347

(4th

Cir.

2013).

There,

we

announced that [w]here the statute defines the offense broadly

rather than alternatively, the statute is not divisible, and the
modified categorical approach simply has no role to play.
Cabrera-Umanzor, 728 F.3d at 350 (quoting Descamps, 133 S. Ct.
at 2285).

Although we did not explain the broadalternative

distinction, we found that the divisibility determination turns

23

on the availability of a categorical fit, and not on the strict

statutory inclusion of textual alternatives.
In

deciding

whether

Maryland

child

abuse

conviction

constituted a crime of violence for sentencing purposes, we said

that

the

because

disjunctive

the

individual
either

offender
with

physical

state

statute

could

be

either

responsibility
abuse

or

was

for

sexual

generally

family

the

abuse

childs

divisible

member

or

an

supervision,

constituted

the

abuse

element of the statute, and sexual abuse could be alternatively

defined as sexual molestation or sexual exploitation.

Id. at

352 (defining the elements of Md. Code Ann., Crim. Law 35C).
But general divisibility, we said, was not enough: [O]nly if at
least

one

divided

of

the

categories

constitutes,

by

its

into

which

elements,

the
[the

statute

may

be

generic

federal

offense] is the statute divisible for purposes of applying the

modified categorical approach.

Id.

Because no arrangement of

the state child-abuse statutes alternative elements lined up

with the elements of a crime of violence, we found the statute
indivisible.

Id.

Applying these cases to the particular statute before us,

we hold that Faullss crime of conviction encompasses, by its
crime

of

elements,

violence

element,

effectively

additional,

creat[ing]

Descamps, 133 S. Ct. at 2285.

several

alternative
different

offense
crimes.

This is so because a defendant

24

convicted of interstate domestic violence may have committed,

for example, assault with a deadly weapon, murder, or sexual
assault as the underlying crime of violence.

See, e.g., United

States

(4th

v.

Barnette,

644

F.3d

192,

19798

Cir.

2011)

(murder); United States v. Brown, 295 F.3d 152, 15354 (1st Cir.
2002) (sexual assault); United States v. Bowe, 309 F.3d 234, 236
(4th Cir. 2002) (assault with a deadly weapon).
Admittedly,

the

offense

of

interstate

domestic

violence

presents an unusual set of circumstances for the divisibility

analysis.

To begin with, the offense does not set out on its

face, in the disjunctive or otherwise, a list of alternative

crimes

that

constitute

the

offense,

but

rather

requires

defendant to commit an underlying crime of violence.

the
This

case also requires that we compare a contemporaneous federal

convictionrather

than

(as

is

more

typical)

prior,

state

convictionto the generic federal offense.

But

these

anomalies

have

no

bearing

categorical approachs application here.

on

the

modified

See United States v.

Ortiz-Gomez, 562 F.3d 683, 68485 (5th Cir. 2009) (applying the
modified categorical approach to a state statute criminalizing
the communication of a threat to commit any crime of violence
to determine what underlying crime of violence supported the

25

defendants

conviction). 5

Importantly,

in

prosecution

for

interstate domestic violence, the jury is charged with finding,

unanimously and beyond a reasonable doubt, the commission of a
specific underlying crime of violence, as well as the elements
of that offense.

See Omargharib, 775 F.3d at 19899 (looking to

how the Virginia courts instruct juries with respect to larceny

to determine whether the offense is defined to include multiple
alternative elements); United States v. Royal, 731 F.3d 333, 341
(4th

Cir.

Interstate

2013)
domestic

(same,

with

violence

Maryland

therefore

assault

consists

statute).

of

multiple

alternative elements, as we define them for modified categorical

approach purposes: Elements, as distinguished from means, are
factual

circumstances

of

the

offense

the

jury

unanimously and beyond a reasonable doubt.

must

find

Omargharib, 775

F.3d at 198 (quoting Royal, 731 F.3d at 341).

Treating

interstate

domestic

violence

as

divisible

for

purposes of the modified categorical approach dovetails with the

inquirys function and harmonizes its purpose.

The point of

the categorical inquiry [after all] is not to determine whether

5

And as Judge Shedds concurrence notes, we have applied

the categorical approach to instant offenses when determining
whether the defendant should be sentenced as a career offender
under the Sentencing Guidelines for having committed a crime of
violence. See United States v. Johnson, 953 F.2d 110, 114 (4th
Cir. 1991); accord United States v. Martin, 215 F.3d 470, 474
(4th Cir. 2000).

26

the defendants conduct could support a conviction for a [sex

offense], but to determine whether the defendant was in fact
convicted

of

crime

that

qualifies

as

[sex

offense].

Cabrera-Umanzor, 728 F.3d at 350.

Here,
record,

without

we

looking

would

have

to

no

the

way

relevant

of

knowing

documents
whether

in

the

Faullss

conviction constitutes a sex offense because we do not know from

the

facial

elements

of

2261(a)(2)

what

underlying

substantiated the finding of domestic violence.

offense

But when we

look to the jury instructions and the indictment, we see that

the underlying crime of violenceaggravated sexual abuseand its
elements were put to the jury and found unanimously beyond a
reasonable doubt.
analysis

thus

See Suppl J.A. 615, 65055; J.A. 11.

furthers

the

categorical

frameworks

This

purpose

without frustrating its goal of avoid[ing] conducting minitrials for each prior offense.

United States v. Gomez, 690

F.3d 194, 200 (quoting United States v. Spence, 661 F.3d 194,
198 (4th Cir. 2011)).
Our interpretation also comports with our past practice.
See, e.g., United States v. Rivers, 595 F.3d 558, 563 (4th Cir.
2010)

([O]nly

when

statute

prohibits

different

types

of

behavior such that it can be construed to enumerate separate

crimes can a court modify the categorical approach . . . .);
Gomez,

690

F.3d

at

198

(applying
27

the

modified

approach

when

different types of behavior satisfy an element of the offense

and the proscribed behaviors constitute at least two separate
crimes).

And it is consistent with the practice of our sister

circuits.

See, e.g., United States v. Mahone, 662 F.3d 651, 654

(3d Cir. 2011) (calling for the modified approach [w]hen the
enumerating

statute

invites

inquiry),

abrogated

on

other

grounds by Descamps, 133 S. Ct. 2276; United States v. Williams,

627

F.3d

modified

324,

32728

categorical

(8th

Cir.

approach

is

2010)
used

(providing
when

the

that

the

conviction

criminalizes both conduct that does and does not qualify as [the
generic federal offense]).
Our holding also aligns with SORNAs legislative goal of
strengthen[ing] and increas[ing] the effectiveness of . . . sex
offender registration and notification [for the protection of
the public].

United States v. Gould, 568 F.3d 459, 464 (4th

Cir. 2009) (quoting The National Guidelines for Sex Offender

Registration and Notification, 73 Fed. Reg. 38030, 38030 (July
2, 2008)); see also Taylor v. United States, 495 U.S. 575, 581
90 (1990) (looking to the statutory background and purpose of
the ACCA to determine how to apply the categorical approach to
the state offense at issue).
Congress passed SORNA to fill the gaps and loopholes
left

by

its

predecessor

allowed

for

numerous

acts

heinous
28

patchwork
crimes

to

standards,
be

which

unaffected

by

registration requirements.

Gould, 568 F.3d at 47374.

make

in

little

sense,

then,

the

context

of

It would

law

that

was

designed to bolster public protection through comprehensive sexoffender registration, to bar courts from peering behind the
statutory

curtain

to

determine

what

offense

the

defendant

actually committed when the offense of conviction contains as an

element another generic federal crime acting as a placeholder
for the substantive offense.
In

sum,

because

aggravated

sexual

abuse

involv[es]

sexual act or sexual contact with another, Faulls was convicted

of a criminal offense that has an element involving a sexual
act or sexual contact with anothera sex offense.
16911(5)(A)(i).

42 U.S.C.

Accordingly, the district court did not err

in requiring Faulls to register as a sex offender under SORNA.

III.
For

the

reasons

given,

we

affirm

the

district

courts

judgment.
AFFIRMED

29

SHEDD, Circuit Judge, concurring:

The majority applies the categorical approach to determine
if Faullss conviction for interstate domestic violence is a
sex offense under 18 U.S.C. 16911(5)(A)(i). Regardless of
whether

the

categorical

approach

should

apply

to

past

convictions under this section, if I were deciding this issue on

a clean slate, I would not apply it in the context of this case,
which

involves

an

instant

offense.

As

the

Tenth

Circuit

has

explained, the practical difficulties of conducting an ad hoc

mini-trial that drive us to apply the categorical approach to a
past conviction do not apply when the court is examining the
conduct of the defendant in the instant offense. United States
v. Riggans, 254 F.3d 1200, 1203-04 (10th Cir. 2001) (quotation
marks

and

alterations

omitted);

see

also

United

States

v.

Williams, 690 F.3d 1056, 1069 (8th Cir. 2012) (same).

The categorical approach does not save judicial resources
because we are continuously called upon to determine whether
past convictionson a state-by-state basisqualify as predicate
offenses

in

multiple

contexts,

including

sentencing.

This

situation has left [t]he dockets of our court . . . clogged

with these cases. United States v. Vann, 660 F.3d 771, 787 (4th
Cir.

2011)

(Agee,

J.,

concurring).

Further,

the

categorical

approach is the antithesis of individualized sentencing; we do

not consider what the individual to be sentenced has actually
30

done, but the most lenient conduct punished by his statute of

conviction. This flaw is even more apparent in cases like this
one, involving instant offenses: the district judge sat through
Faullss trial, heard the evidence against him, and witnessed
the jurys finding that Faulls committed aggravated sexual abuse
against his wife. The categorical approach then requires the
counter-intuitive

procedure

ignore

trial

the

actual

whereby

record

and

that
the

same

facts

judge

and

must

inferences

drawn from the testimony to determine if Faullss conviction

was for a sex offense. United States v. Stoker, 706 F.3d 643,
651 (5th Cir. 2013) (Jones, J., concurring).
Notwithstanding my view, however, circuit precedent rejects
this distinction between past convictions and instant offenses.
See United States v. Johnson, 953 F.2d 110, 114 (4th Cir. 1991)
(noting

the

substantial

circumstance-specific
nonetheless

concluding

intuitive

approach
that

appeal

to

the

instant

approach

of

applying

offenses

must

a
but

be

rejected); United States v. Martin, 215 F.3d 470, 474 (4th Cir.
2000) (applying categorical approach to instant conviction no
matter how clear it may be from the record that the defendant
committed

crime

of

violence).

therefore

Diazs thoughtful opinion for the court.

31

concur

in

Judge