Background
David Marrowbone was convicted in 1982 under 18 U.S.C. § 113(a) of assault with intent to commit rape. That version of the statute covered assault with intent to commit either murder or rape. The 1982 conviction later served as the basis for three federal convictions for failing to register as a sex offender.
After Marrowbone was again charged in 2024 with failing to register under 18 U.S.C. § 2250(a), he moved to dismiss the indictment. He argued that, under Mathis v. United States, his 1982 conviction did not qualify as a sex offense under the Sex Offender Registration and Notification Act. The district court denied the motion, and Marrowbone entered a conditional guilty plea preserving the issue for appeal. He received 21 months in custody and five years of supervised release.
The Court’s Holding
The Eighth Circuit affirmed the denial of the motion to dismiss. Assuming without deciding that the categorical approach governed, the court held that the former § 113(a) was divisible because assault with intent to commit murder and assault with intent to commit rape were separate crimes with distinct elements, rather than alternative means of committing one offense.
The court relied on circuit precedent identifying specific intent to commit rape as an element of the rape alternative, the record of Marrowbone’s conviction, and model jury instructions treating the intended felony as an element the government must prove. Because the indictment and judgment established that Marrowbone was convicted of assault with intent to commit rape, the modified categorical approach showed that his conviction qualified as a sex offense under SORNA. The court also granted his motion to take judicial notice of the underlying conviction record.
Key Takeaways
- The former version of 18 U.S.C. § 113(a) was divisible between assault with intent to commit murder and assault with intent to commit rape.
- Alternative offenses can constitute separate elements even when they carry the same penalty.
- Marrowbone’s assault-with-intent-to-rape conviction qualified as a SORNA sex offense, so his failure-to-register indictment was valid.
Why It Matters
The unpublished decision illustrates how courts distinguish alternative elements from alternative means when applying the categorical framework. Statutory text, precedent, charging records, judgments, and jury instructions may collectively establish divisibility even when the alternatives appear in the same subsection and share a penalty.
The ruling also confirms that an older federal assault conviction may trigger SORNA when conviction records identify the sexual-offense alternative. The court, however, assumed without deciding that the categorical approach applies to this SORNA inquiry.