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US -v- Kebodeaux

7-6-2012 Texas:

US -v- Kebodeaux
(687 F.3d 232 (2012)

UPDATE: This Fed Ct of Appeals decision was reversed by the US Sup court. See that decision HERE

The Fed Ct of Appeals held:

Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex Offender Registration and Notification Act ("SORNA"), of failing to update his change of address when he moved intrastate. A panel of this court affirmed. United States v. Kebodeaux, 647 F.3d 137 (5th Cir. 2011). The panel majority rejected Kebodeaux's argument that Congress does not have the power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over his intrastate activities after his unconditional release from federal custody. Judge Dennis concurred in the judgment and assigned lengthy reasons, urging that SORNA is authorized by the Commerce Clause. The panel opinion was vacated by our decision to rehear the case en banc. United States v. Kebodeaux, 647 F.3d 605 (5th Cir. 2011). Because we agree with Kebodeaux that, under the specific and limited facts of this case, his commission of a federal crime is an insufficient basis for Congress to assert unending criminal authority over him, we reverse and render a judgment of dismissal.


In summary, and for the reasons discussed in parts II and III, 42 U.S.C. § 16913's registration requirements and § 2250(a)(2)(A)'s criminal penalties for failing to register after intrastate relocation are unconstitutional solely as they apply to former federal sex offenders who had been unconditionally released from federal custody before SORNA's passage in 2006. Every federal sex offender subject to federal custody or supervision when SORNA was enacted, or who was convicted since then, is unaffected. Moreover, those who had been unconditionally released before SORNA's passage need not go unmonitored; they could still be regulated just as state sex offenders currently are under federal law, and they remain subject to state authority.

The statute is an unlawful expansion of federal power at the expense of the traditional and well-recognized police power of the state.59 The conviction is REVERSED, and a judgment of dismissal is RENDERED.

See also: Failure to Register as a Sex Offender: A Legal Analysis of 18 U.S.C. 2250

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