PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-1951

JOHN DOE,

Plaintiff - Appellant,

v.

COLONEL GARY T. SETTLE, in his official capacity as Superintendent of the Virginia Department of State Police,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:20-cv-00190-RAJ-LRL)

Argued: September 23, 2021 Decided: January 28, 2022

Before RICHARDSON and QUATTLEBAUM, Circuit Judges, and KEENAN, Senior Circuit Judge.

Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge Quattlebaum and Senior Judge Keenan joined.

ARGUED: Kenton Craig Welkener, Jr., BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Michelle Shane Kallen, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. ON BRIEF: Timothy P. Bosson, BOSSON LEGAL GROUP PC, Fairfax, Virginia, for Appellant. Mark R. Herring, Attorney General, Michael A. Jagels, Acting Deputy Attorney General, Holli Reeves Wood, Assistant Attorney General, Toby J. Heytens, Solicitor General, Martine E. USCA4 Appeal: 20-1951 Doc: 44 Filed: 01/28/2022 Pg: 2 of 38

Cicconi, Deputy Solicitors General, Jessica Merry Samuels, Assistant Solicitor General, Kendall T. Burchard, John Marshall Fellow, OFFICE OF ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee.

2 USCA4 Appeal: 20-1951 Doc: 44 Filed: 01/28/2022 Pg: 3 of 38

RICHARDSON, Circuit Judge:

Two months after he turned 18, John Doe was caught having sex with his 14-year-

old girlfriend. Given the facts of his arrest, Doe may well have been charged with “carnal

knowledge of a child,” a Class 4 felony that prohibits sex with 13- and 14-year-old children.

But instead he was charged with and pleaded to a lower-class felony, “taking indecent

liberties with children,” which only prohibits behavior like propositioning a child for sex.

Doe’s plea may have gotten him a shorter prison sentence, but due to a quirk in Virginia

law, it also led to worse treatment by Virginia’s sex-offender registry. Both crimes

generally put an offender on the highest tier of the registry for life, but there is a narrow

exception to that rule. When an offender is less than 5 years older than his victim, he may

be removed from the registry in time. But that mitigating exception only applies to carnal

knowledge, the crime with the higher sentencing range, and not to indecent liberties. So

while Doe may have felt lucky to only be charged with indecent liberties, given the

potential for a lower prison sentence, that plea ended up condemning him to worse

treatment on the registry. Because of that oddity, Doe will spend the rest of his life on

Virginia’s sex-offender registry with no hope for relief.

Doe—now in his 30s—sued Colonel Gary T. Settle, Superintendent of the Virginia

Department of State Police, hoping to persuade a court to remove him from that registry

and its burdens. Doe argues that the registry and the 5-year-gap provision violate multiple

constitutional principles. In his Fourteenth Amendment equal protection claim, Doe asks

us to consider why an offender convicted of having sex with a child, as Doe might have

been, should be treated better than an offender convicted only of propositioning a