Texas Sexual Assault of a Child (Tex. Penal Code § 22.011(a)(2)) Is a SORNA Tier I Predicate Under the Categorical Approach

I. Introduction

United States v. Quintanilla-Matamoros (5th Cir. Jan. 9, 2026) concerns how federal courts must classify a defendant’s prior state sex-offense conviction into SORNA’s tier system when sentencing a later federal conviction for failure to register as a sex offender.

The defendant, Sergio Yovani Quintanilla-Matamoros, pleaded guilty to failing to register under the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C. §§ 20901–20962, in violation of 18 U.S.C. § 2250(a). The district court adopted the presentence report’s view that his prior Texas conviction for sexual assault of a child under Tex. Penal Code Ann. § 22.011(a)(2) made him a tier III sex offender, yielding a higher base offense level under U.S.S.G. § 2A3.5(a).

On appeal—raising the issue for the first time—Quintanilla-Matamoros argued he should not be tier III (and ultimately that he should be tier I). The Government conceded tier III was wrong, but the Fifth Circuit went further and held that the Texas statute is also too broad to qualify for tier II; therefore, the defendant must be sentenced as tier I.

II. Summary of the Opinion

The Fifth Circuit applied the categorical approach to compare the elements of Tex. Penal Code § 22.011(a)(2) with SORNA’s federal “generic” comparator offenses.
It held the Texas offense is broader than “sexual abuse” and “aggravated sexual abuse” (18 U.S.C. §§ 2242 and 2241), because the federal offenses require force, threats, coercion, or lack of consent, while the Texas statute reaches consensual intercourse with a “child” under 17 where consent is irrelevant.
It also held the Texas offense is broader than “abusive sexual contact” as described in 18 U.S.C. § 2244 (via relevant cross-references to 18 U.S.C. § 2243(a) and 18 U.S.C. § 2241(c)), because Texas covers victims under 17 with no required age differential, whereas federal comparators are limited by narrower age bands and/or a four-year age gap.
Under plain-error review, the court concluded the tier III classification produced an incorrect, higher Guidelines range; it vacated the sentence and remanded for resentencing using tier I.

III. Analysis

A. Precedents Cited

1. Standard of review and correction of Guidelines errors

United States v. Castaneda-Lozoya: Cited for the plain-error framework when an argument is raised for the first time on appeal. It sets the procedural posture: the defendant must clear the demanding plain-error hurdle.
Rosales-Mireles v. United States and Molina-Martinez v. United States: These anchor the modern Supreme Court approach to Guidelines mistakes under plain-error review. In particular, Molina-Martinez v. United States supports the inference that using the wrong (higher) range generally affects substantial rights when the record is silent about what the judge would have done under the correct range. Rosales-Mireles v. United States supports correcting such errors because they commonly undermine the fairness and integrity of proceedings.
United States v. Olano: Quoted (through Molina-Martinez v. United States) for the fourth plain-error prong: whether the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

2. The categorical approach in SORNA tier classification

United States v. Escalante: Establishes that SORNA tier determinations use the categorical approach in this circuit and explains the narrow “circumstance-specific” inquiry into the victim’s age that occurs only after categorical comparability is established.
United States v. Montgomery: Provides the Fifth Circuit’s operative articulation of comparing state elements to federal comparators and its application in the SORNA context. It is especially influential here because Montgomery held a state statute was broader than 18 U.S.C. §§ 2241 and 2242 when it criminalized sexual acts without requiring force, threats, or fear—mirroring the defect the panel found in the Texas statute.
Descamps v. United States: Supplies the foundational categorical-approach maxim that courts look to “elements, not facts,” and that an overbroad statute cannot qualify even if the defendant’s actual conduct would satisfy the federal comparator.
United States v. Navarro: Reinforces that (i) the Fifth Circuit “takes a categorical approach to interpreting SORNA’s tiers,” (ii) the “sweeps more broadly” inquiry asks whether the state statute criminalizes more conduct than the federal comparator, and (iii) age-band mismatches make statutes overbroad in tier II comparisons (e.g., a state statute that covers younger-than-12 victims is broader than § 2243(a)).
Gonzales v. Duenas-Alvarez: Supplies the “realistic probability” requirement—overbreadth must be shown as a practical matter, commonly via real prosecutions or state case law.

3. Texas-law characterizations of consent and “statutory rape” style offenses

United States v. Alvarado-Hernandez: Characterizes Tex. Penal Code § 22.011(a)(2) as fitting a “common sense definition of ‘statutory rape’” because it punishes consensual intercourse with a child regardless of consent.
Delarosa v. State: Confirms that, under Texas law, minors under 17 may be “capable of consent” in a mental-competence sense, but that consent is irrelevant to the offense—a key point in distinguishing the Texas statute from federal sexual abuse statutes that hinge on coercion, force, incapacity, or lack of consent.
Hernandez v. State: Used to demonstrate a realistic probability of applying the Texas statute without alleging lack of consent, supporting the conclusion that the Texas statute reaches consensual acts outside the federal comparators.

4. Tier II comparators (age-band and age-differential mismatches)

United States v. Walker: Cited for a parallel analysis in another circuit: a state statute can be broader than both § 2243(a) and § 2241(c) when it covers both under-12 victims and also victims between 12 and 15 (or beyond), thereby failing to match either comparator cleanly.
United States v. Rodriguez (en banc) and Morganfield v. State: Cited to show Texas has in fact prosecuted older teens/young adults (e.g., 19-year-olds) for conduct involving 16-year-old victims under § 22.011(a)(2), meeting Gonzales v. Duenas-Alvarez’s “realistic probability” requirement for overbreadth.

5. Addressing an additional issue “for guidance on remand”

United States v. Murillo-Lopez: Cited to justify reaching the tier I vs. tier II question even after concluding resentencing is required—an efficiency move intended to constrain error on remand.

6. Judge Ho’s concurrence: prudence, adversity, and party agreement

Judge Ho concurred in the judgment but expressed prudential concern about issuing a precedential decision in the absence of adversarial testing (given the Government’s concession). He marshaled a line of Article III and practice precedents:

Lefebure v. D'Aquilla: Quoted for the value of adversarial process to discover truth and avoid error.
Fifth Circuit intra-circuit debate: Pool v. City of Houston (as “Pool I,” “Pool II,” and “Pool III”) and United States v. Aguilar-Torres, illustrating a live controversy over whether party agreement destroys adversity and thus jurisdiction.
Examples of broader stakes demonstrating the practical importance of the jurisdictional theory: Young Conservatives of Texas Foundation v. Smatresk and United States v. Texas.
Time-of-filing jurisdiction principles: Smith v. Sperling (quoting Mollan v. Torrance) and Freeport-McMoRan, Inc. v. K N Energy, Inc..
Supreme Court approval of judgments despite party agreement: Lord v. Veazie, Pope v. United States, INS v. Chadha, United States v. Windsor, and Cardinal Chemical Co. v. Morton Int'l (including Justice Scalia’s concurrence).
Appellate standing/controversy despite technical prevailing: Camreta v. Greene and Deposit Guaranty Nat. Bank v. Roper.
Amicus appointment practice when the parties agree: Glossip v. Oklahoma and again United States v. Windsor.
“No adversity at the outset” examples: Moore v. Charlotte-Mecklenburg Board of Education (with factual context from Swann v. Charlotte-Mecklenburg Bd. of Ed.) and Muskrat v. United States.
A methodological note about judicial correction: Planned Parenthood of Greater Texas, Inc. v. Kauffman.

The concurrence’s key contribution is not a change to SORNA doctrine, but a cautionary institutional point: even if Article III permits decisions where parties agree, courts should weigh whether to issue binding circuit precedent without adversarial briefing—distinguishing jurisdictional power from prudential restraint.

B. Legal Reasoning

1. The SORNA tier framework and Guidelines consequences

SORNA assigns sex offenders to tiers I–III. Those tiers affect both registration duration (34 U.S.C. § 20915(a)) and, critically here, the base offense level for a failure-to-register conviction under U.S.S.G. § 2A3.5(a) (tier III: 16; tier II: 14; tier I: 12). Thus, tier classification drives the advisory Guidelines range and can materially alter the sentence.

2. Categorical approach: elements control; facts generally do not

Following United States v. Escalante, United States v. Montgomery, and Descamps v. United States, the panel compared the elements of the Texas statute to federal comparator statutes identified by SORNA, asking whether the Texas statute “sweeps more broadly.” The court emphasized that the defendant’s actual conduct (assaulting a 13-year-old) cannot substitute for element matching when the Texas statute also criminalizes other, non-matching conduct.

3. Why Tex. Penal Code § 22.011(a)(2) is not tier III

Tier III requires comparability to “aggravated sexual abuse” or “sexual abuse” as described in 18 U.S.C. §§ 2241 and 2242. The court reasoned:

18 U.S.C. § 2241 and 18 U.S.C. § 2242 each require coercive features (force, threats, fear, incapacity, coercion, or lack of consent).
Tex. Penal Code § 22.011(a)(2) requires penetration of a “child” (under 17) and expressly operates “regardless” of knowledge of age; it does not require force, threats, coercion, or lack of consent.
Texas law treats minors under 17 as capable of consent in a competency sense, but makes that consent legally irrelevant to guilt (Delarosa v. State), supporting the conclusion that the statute covers consensual acts that federal sexual abuse statutes do not.
The defendant met Gonzales v. Duenas-Alvarez’s realistic-probability requirement by pointing to Texas charging practice (Hernandez v. State) without alleging lack of consent.

Because the Texas statute criminalizes conduct (consensual intercourse with a person under 17) that §§ 2241 and 2242 do not necessarily criminalize, it cannot be tier III under the categorical approach.

4. Why it is not tier II (and therefore must be tier I)

Tier II requires comparability to “abusive sexual contact” as described in 18 U.S.C. § 2244 and committed against a minor. Section 2244 is derivative: it criminalizes sexual contact that would violate certain federal statutes “had the sexual contact been a sexual act.” The panel focused on the only relevant cross-references:

18 U.S.C. § 2243(a): victim must be 12–15 and at least four years younger than the defendant.
18 U.S.C. § 2241(c): victim must be under 12.

The Texas statute is broader because it extends to victims under 17 (including 16-year-olds) and contains no element requiring a four-year age differential. The court also rejected reliance on Texas’s affirmative defense (not more than three years older, victim at least 14), because under United States v. Escalante and the categorical approach, affirmative defenses are not elements.

To satisfy the realistic-probability requirement, the court cited Texas prosecutions of 19-year-olds for sexual assault of 16-year-olds (Morganfield v. State; United States v. Rodriguez (en banc)). Because the statute is broader than the relevant § 2244 comparators, it cannot be tier II. And because it is neither tier II nor tier III, SORNA classification defaults to tier I.

5. Plain error: vacatur and remand

The panel applied United States v. Castaneda-Lozoya and Supreme Court plain-error doctrine to correct the misclassification. Relying on Molina-Martinez v. United States, it held the error affected substantial rights because the district court used a higher Guidelines range and the record did not show the same sentence would have been imposed under the correct range. Then, relying on Rosales-Mireles v. United States, it held correction was warranted to protect the fairness and integrity of judicial proceedings.

C. Impact

1. Substantive sentencing impact in SORNA failure-to-register cases

The decision supplies a clear Fifth Circuit rule: Tex. Penal Code § 22.011(a)(2) cannot support tier III or tier II classification under SORNA’s categorical analysis. In practical terms, defendants with this conviction who are later sentenced under U.S.S.G. § 2A3.5 should be treated as tier I for base offense level purposes (absent other qualifying predicates).

2. Broader doctrinal reinforcement: strict categorical matching

The opinion reinforces that “statutory rape”-style state offenses often diverge from SORNA’s federal comparators that are framed around coercion or reminded by specific federal age bands and age-differential elements. The Fifth Circuit’s approach—grounded in Descamps v. United States, United States v. Montgomery, and United States v. Navarro—signals that overinclusive state age definitions (e.g., “under 17”) and missing age-gap elements will frequently defeat tier II and tier III classification.

3. Institutional/procedural impact: precedent in conceded cases

Judge Ho’s concurrence highlights shows a continuing internal Fifth Circuit debate (via Pool v. City of Houston) over whether party agreement affects justiciability and whether it should affect precedential decision-making. While the majority treated the Government’s concession as consistent with existing categorical approach doctrine (and therefore safe to publish), the concurrence may influence future panels to consider appointing amici or seeking supplemental briefing in fully conceded appeals where broad precedent is likely.

IV. Complex Concepts Simplified

SORNA tiers (I, II, III): Federal categories of prior sex offenses that determine registration obligations and influence sentencing for failure-to-register. Higher tiers generally mean harsher consequences.
Categorical approach: A method that asks what the statute of conviction always requires (its elements), not what the defendant actually did. If the statute covers any conduct outside the federal comparator, it generally cannot qualify.
“Sweeps more broadly”: The state law criminalizes more kinds of conduct than the federal comparator. If so, the state law is not “comparable” under the categorical approach.
Realistic probability requirement (Gonzales v. Duenas-Alvarez): A defendant must show the state actually prosecutes the broader conduct (often by citing real cases), not merely that broader applications are imaginable.
Circumstance-specific inquiry (age): In SORNA tiering, courts may consider the victim’s actual age for certain age thresholds, but only after the statute is deemed comparable under the categorical approach (United States v. Escalante; United States v. Navarro).
Plain error review: A demanding standard used when a defendant failed to object in the district court. Even then, clear Guidelines mistakes that likely increased the sentence are often corrected under Molina-Martinez v. United States and Rosales-Mireles v. United States.

V. Conclusion

United States v. Quintanilla-Matamoros establishes that a conviction under Tex. Penal Code § 22.011(a)(2) is categorically broader than the federal offenses that define SORNA tiers II and III. As a result, such a conviction cannot be used to sentence a federal failure-to-register defendant as tier II or tier III; the proper classification is tier I, with corresponding Guidelines consequences under U.S.S.G. § 2A3.5(a). The decision also underscores the Fifth Circuit’s commitment to strict element-based comparison in SORNA tiering and, through Judge Ho’s concurrence, spotlights an ongoing institutional debate about when courts should issue binding precedent in cases where the parties agree on the merits.