United States v. Caldwell.
No. 24-3134. 2/19/2025. D.Kan. Judge Matheson. Sex Offender Registration and Notification Act—Failure to Register as a Sex Offender—Concurrent Offenses—US Sentencing Guidelines—Relevant Conduct—Criminal History Points.
February 19, 2025
Caldwell pleaded guilty for failing to register as a sex offender between May 4, 2020, and June 6, 2021, in violation of the Sex Offender Registration and Notification Act (SORNA), after he moved to Oklahoma from Kansas. During that time, he was convicted of and sentenced for (1) obstructing an officer and unlawful possession of drug paraphernalia and (2) obstructing an officer and unlawful possession of a controlled dangerous substance, both of which were Oklahoma offenses. Caldwell’s presentence investigation report (PSR) on the SORNA offense recommended treating each Oklahoma sentence as part of his criminal history. The PSR thus assessed 11 total criminal history points: one point for his 2020 sentence, two points for his 2021 sentence, and an additional point because Caldwell committed the SORNA offense while subject to the 2020 sentence and had seven or more points. This put him in criminal history category V, which, combined with his total offense level of 10, placed him in a US Sentencing Guidelines (USSG) range of 21 to 27 months. Caldwell objected to counting his Oklahoma sentences as criminal history, arguing they should instead have been considered as relevant conduct that occurred during the commission of his SORNA offense. He maintained that he thus should have had seven criminal history points, a category IV criminal history, and a USSG range of 15 to 21 months. The district court assessed criminal history points for the Oklahoma offenses, adopted the PSR’s USSG calculation, and sentenced Caldwell to 21 months in prison.
On appeal, Caldwell argued that his sentences for the Oklahoma offenses he committed during his SORNA offense should be treated as relevant conduct. In United States v. Lewis, 768 F.3d 1086, 1093 (10th Cir. 2014), the Tenth Circuit recognized failure to register under SORNA as a continuing offense. Under the USSG, a conviction is not treated as a prior sentence if the underlying conduct meets the definition of relevant conduct. Under the USSG and cases from this and other circuits, relevant conduct comprises acts or omissions that occurred during the offense of conviction and relate to that offense. The offense of conviction consists of conduct required to commit that offense. Here, Caldwell’s state offenses do not relate to his SORNA offense, so they are not relevant conduct and were properly considered as criminal history. Therefore, the district court properly considered Caldwell’s sentences for the two Oklahoma offenses as criminal history.
The sentence was affirmed.