Bankston: Selling Body Armor Is Not a "Use" of Body Armor Under USSG 3B1.5

In United States v. Bankston, No. 18-14812 (Grant, Martin, Newsom), the Court vacated the defendant's sentence based on the miscalculation of his guideline range.

Specifically, the Court accepted the defendant's argument, raised for the first time on appeal, that the district court erroneously applied an enhancement for the "use" of body armor under USSG 3B1.5.  The commentary explained that use of body armor required either active employment to protect the person from gunfire, or use as a means of bartering.  The defendant, however, did no more than sell body armor for money, which was different than bartering, as bartering meant trading goods without the use of money.  Finding the language of the commentary clear, the Court rejected the government's reliance on legislative history and purpose.  And having found that the district court committed an error that was plain, there was not dispute that the remaining plain-error prongs were satisfied.

Vineyard: Tennessee Sexual Battery is Covered Sex Offender Under SORNA

In United States v. Vineyard, No. 18-11690 (Dec. 20, 2019) (Julie Carnes, Marcus, Kelly (10th)), the Court upheld the denial of a motion to dismiss a conviction for failure to register under SORNA.

The Court rejected the defendant's argument that his prior Tennessee conviction for sexual battery was not a covered "sex offense" under SORNA, which (as relevant here) required "sexual contact" as an element.  First, the Court held that the categorical approach (rather than a circumstance-specific approach) applied.  Second, the Court held that, based on dictionary definitions and common understanding, "sexual contact" under SORNA meant a touching or meeting of body surfaces where the touching or meeting is related to or for the purpose of sexual gratification.  The Tennessee offense required such contact, and the defendant did not argue otherwise.  Third, the Court rejected the defendant's argument that "sexual contact" under SORNA instead incorporated a broader meaning from an unrelated federal statute.  Finally, even if the Court used that broader meaning, it concluded that the Tennessee offense satisfied it.  The Court rejected as "border[ing] on the absurd" the defendant's argument that the Tennessee offense was overbroad because it required contact with the "primary genital area" rather than just the genitals.  And the Court rejected the defendant's argument that Tennessee case law permitted the contact to be with the lower back or abdomen.