2009 2a3_5


§2A3.5. Failure to Register as a Sex Offender

(a) Base Offense Level (Apply the greatest):

(1) 16, if the defendant was required to register as a Tier III offender;

(2) 14, if the defendant was required to register as a Tier II offender; or

(3) 12, if the defendant was required to register as a Tier I offender.

(b) Specific Offense Characteristics

(1) (Apply the greatest):

    If, while in a failure to register status, the defendant committed—

(A) a sex offense against someone other than a minor, increase by 6 levels;

(B) a felony offense against a minor not otherwise covered by subdivision (C), increase by 6 levels; or

(C) a sex offense against a minor, increase by 8 levels.

(2) If the defendant voluntarily (A) corrected the failure to register; or (B) attempted to register but was prevented from registering by uncontrollable circumstances and the defendant did not contribute to the creation of those circumstances, decrease by 3 levels.


Statutory Provision: 18 U.S.C. § 2250(a).

Application Notes:

1. Definitions.—For purposes of this guideline:

    “Minor” means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years; and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.

    “Sex offense” has the meaning given that term in 42 U.S.C. § 16911(5).

    “Tier I offender”, “Tier II offender”, and “Tier III offender” have the meaning given those terms in 42 U.S.C. § 16911(2), (3) and (4), respectively.

2. Application of Subsection (b)(2).—

(A) In General.—In order for subsection (b)(2) to apply, the defendant’s voluntary attempt to register or to correct the failure to register must have occurred prior to the time the defendant knew or reasonably should have known a jurisdiction had detected the failure to register.

(B) Interaction with Subsection (b)(1).—Do not apply subsection (b)(2) if subsection (b)(1) also applies.

Historical Note: Effective November 1, 2007 (see Appendix C, amendments 701 and 711).