United States of America v. Oscar Lee Hall, Jr.

United States Court of Appeals
For the Eighth Circuit
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No. 18-1305
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Oscar Lee Hall, Jr.
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Davenport
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Submitted: June 18, 2019
Filed: June 20, 2019
[Unpublished]
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Before SHEPHERD, BOWMAN, and WOLLMAN, Circuit Judges.
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PER CURIAM.
Oscar Lee Hall directly appeals the sentence the district court imposed after1
he pleaded guilty to failing to register as a sex offender. In calculating the
The Honorable Stephanie M. Rose, United States District Judge for the1
Southern District of Iowa.

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appropriate sentencing range under the United States Sentencing Guidelines, the
district court classified Hall as a tier III sex offender for purposes of U.S.S.G.
§ 2A3.5, based on his underlying Michigan conviction for assault with intent to
commit sexual penetration. Hall’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), arguing that the district court plainly erred in
classifying him as a tier III sex offender, and abused its discretion by declining to
vary downward from the Guidelines range based on Hall’s medical conditions. This
court ordered supplemental briefing addressing what approach a district court should
apply in classifying a sex offender under the tripartite tier system established by 34
U.S.C. § 20911, and whether Hall was properly classified based on the correct
approach. In supplemental briefing, the parties agreed that the categorical approach
applied in this case to determining whether Hall’s underlying Michigan sex offense
was comparable to or more severe than sexual abuse as defined in 18 U.S.C.
§ 2242(1). The parties disagreed, however, about Hall’s proper classification under
that approach.
Where, as here, a defendant fails to timely object to a procedural error at
sentencing, our review is for plain error. See United States v. Linderman, 587 F.3d
896, 899 (8th Cir. 2009) (procedural errors not raised at sentencing are reviewed for
plain error). While it is not clear that the district court compared the state offense to
the federal offense as required, see United States v. Lowry, 595 F.3d 863, 866 (8th
Cir. 2010) (noting that the federal sex offender tier statute “speaks in terms of the
comparability of a defendant’s prior crimes of conviction to certain enumerated
crimes,” and that the Guidelines and statute “unambiguously” set forth a “process”
for the sentencing court to follow), we conclude that any error was not plain, see
United States v. Winston, 850 F.3d 377, 380 (8th Cir. 2017) (to demonstrate plain
error, defendant must show, inter alia, that error is clear or obvious under current law)
(citation omitted). Specifically, it is not clear that Hall’s underlying Michigan sex
offense was less severe than sexual abuse under section 2242(1), and thus that Hall
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was improperly classified as a tier III sex offender. Compare 18 U.S.C. § 2242(1)
with Mich. Comp. Laws § 750.520g(1).
We also conclude that the district court did not abuse its discretion in
sentencing Hall. See United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009)
(en banc) (appellate court first ensures no significant procedural error occurred, then
considers substantive reasonableness of sentence under abuse-of-discretion standard);
see also United States v. Lewis, 593 F.3d 765, 773 (8th Cir. 2010) (denial of
downward variance was substantively reasonable where district court considered
arguments for downward variance and exercised its discretion in rejecting them). We
decline to consider Hall’s pro se ineffective-assistance-of-counsel claim on direct
appeal. See United States v. Ramirez-Hernandez, 449 F.3d 824, 826-27 (8th Cir.
2006) (ineffective-assistance claims are best litigated in collateral proceedings, where
record can be properly developed).
Accordingly, the judgment is affirmed.
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