USA v James

2-13-15 Arkansas:

USA v James

Edwin James appeals his sentence of lifetime supervised release and certain conditions of supervised release imposed by the district court after James pleaded guilty to failing to register as a sex offender, in violation of 18 U.S.C. § 2250, as is required by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16901-16991. We affirm in part and reverse in part.

... ... ...

Court reversed on Special Condition 6
First, we address Special Condition 6, which states that "[t]he defendant shall have no access to the internet, or any device capable of accessing the internet to include a computer and/or cell phone without the permission of the probation officer.

" There is no evidence in the PSR or any other source in the record of James ever using the internet, much less using the internet for unlawful purposes. See United States v. Springston, 650 F.3d 1153, 1156 (8th Cir. 2011) (vacating a restriction on internet access because "[t]he record . . . is devoid of evidence that [the defendant] has ever used a computer for any purpose") vacated on other grounds, Springston v. United States, 132 S.Ct. 1905 (2012); United States v. Crume, 422 F.3d 728, 733 (8th Cir. 2005) (vacating a restriction on computer use and internet access because "the record is devoid of evidence that [the defendant] has ever used his computer for anything beyond simply possessing child pornography").

The government concedes that this special condition should be vacated, and we agree.

USA -v- Brewer

9-10-2014 Arkansas:

USA -v- Brewer

Defendant appealed his conviction for failing to register as a sex offender under 18 U.S.C. 2250(a). In 2006, Congress enacted the Sex Offender Registration Notification Act (SORNA), 42 U.S.C. 16901-16991. In 2007, the Attorney General promulgated an Interim Rule that made registration requirements applicable to all pre-Act offenders without establishing a period for pre-promulgation notice and comment and bypassed the 30-day publication requirement.

Defendant argued that the Attorney General lacked good cause and thereby violated the Administrative Procedures Act (APA), 5 U.S.C. 551 et seq. The court joined the Third, Fifth, Sixth, and Ninth Circuits and found that the Attorney General's stated reasons for finding good cause to bypass the 30-day advance-publication and notice-and-comment requirements were insufficient.

Because the Attorney General lacked good cause to waive the procedural requirements of notice and comment when promulgating the Interim Rule, and this procedural error prejudiced defendant, SORNA did not apply to defendant in 2007. Therefore, his conviction for failing to register is invalid.

The court did not address defendant's remaining argument that SORNA violates the nondelegation doctrine.

The court reversed and remanded for the district court to vacate the conviction.

Arkansas Doctor Challenges Law Barring Sex Offenders From Receiving Medicaid Money

UPDATE 11-13-13: Judge refuses to block law denying Medicaid payments to sex offenders (Full article following this one) and then in December: Judge dismisses lawsuit filed by Medicaid doctor convicted of child porn (No reason given)

9-16-2012 Arkansas:

A southwestern Arkansas physician who is a convicted sex offender has filed a federal lawsuit challenging a new state law that prohibits registered sex offenders from providing Medicaid-funded services in the state.

Dr. Lonnie Joseph Parker argues in the lawsuit filed Friday that the new law, which took effect Aug. 16, violates his constitutional rights.

Parker, who practices in Hope, said in the lawsuit that he provides emergency and general family medical services — including family planning — to rural poor in the state and is a registered provider under the Arkansas Medicaid Program. More than 75 percent of his patients are Medicaid beneficiaries, he said.

Parker was joined in the lawsuit by patients who want him to continue being their family primary care doctor, including Tonya Witherspoon, a mother of five and a Medicaid recipient, and Paula Sunderman and her daughter, Sara.

The law seeks a preliminary injunction to halt enforcement of the law pending the outcome of the lawsuit.

Man failed to register, but he wasn't a sex offender

1-7-2012 Arkansas:

Michael P. Howard's case was an unusual one. Twice in four months he was arrested for failing to register as a sex offender, even though he'd never been convicted of a sexual offense.

This week in Baxter County Circuit Court, Prosecutor Ron Kincade reduced the charges against the 30-year-old Howard to obstruction of governmental operations and agreed to a year's probation.

Kincade told the court that while Howard did have a battery conviction in Missouri, "he has never been convicted of any sex offense."

"There is no criminal history of a sexual offense of any kind," said the prosecutor.

However, Kincade said Missouri has "a crazy rule about battery" — or certain battery offenses — that require the person convicted to register with the state. He told the court that under Arkansas statutes, any offender required to register in another state must register in Arkansas as well, yet the only registration system Arkansas has is for sex offenders.

When local authorities discovered Howard was required to register in Missouri and had not registered when he moved into Baxter County, he was charged with failing to register as a sex offender in November 2010 and again in February 2011, even though he was not a sex offender.

Under the amended charge, Howard, who now lives at Booneville, was placed on one year's probation, and in each case he was fined $500 plus $420 in costs and fees. ..Source.. by THOMAS GARRETT

US v Kuehl

Re: Non-Delegation Doctrine. In essence, Congress IS NOT permitted to delegate ALL of its powers to someone or a agency, but it is permitted to delegate some of its power -with instructions- to limit the person or agency.

2-19-2013 Arkansas:

US v Kuehl
No. 12-2598.

Tommy Kuehl was indicted for failure to register as a sex offender pursuant to 18 U.S.C. § 2250(a). Kuehl was required to register his address under the Sex Offender Registration and Notification Act (SORNA). Kuehl moved to dismiss the indictment on the ground that section 16913(d) of SORNA violates the nondelegation doctrine of the United States Constitution. The district court1 denied Kuehl's motion to dismiss, and we affirm this denial.

In 1991, Kuehl was convicted of two counts of attempted sexual conduct and sentenced to twelve years' imprisonment. Fifteen years later, in 2006, the United States Congress passed SORNA, which imposed registration requirements on offenders with certain sex convictions.2 Section 16913(d) of SORNA delegated authority to the Attorney General to determine whether SORNA applied retroactively. In 2007, the Attorney General declared that SORNA applied retroactively to offenders convicted before SORNA's effective date. Thus, SORNA's registration requirements applied to Kuehl.

In September 2011, Kuehl was arrested in Iowa for trespassing. The authorities discovered that Kuehl had recently moved to Iowa and failed to register his new address as SORNA required. In November 2011, a grand jury indicted Kuehl for failure to register as a sex offender. Kuehl moved to dismiss the indictment, arguing that Congress improperly delegated legislative authority to the Attorney General to determine whether SORNA applied retroactively. The district court ruled that SORNA was a valid delegation of authority to the Attorney General and denied the motion to dismiss. Kuehl then entered a conditional guilty plea preserving his right to appeal the denial of his motion to dismiss. The district court sentenced Kuehl to 22 and one-half months' imprisonment and five years of supervised release. Kuehl appeals the denial of his motion to dismiss.

Kuehl asserts that SORNA, specifically, 42 U.S.C. § 16913(d) is an unconstitutional delegation of legislative power. Kuehl argues that in section 16913(d), Congress unconstitutionally delegated legislative power to the Attorney General to determine SORNA's retroactivity. Section 16913(d) provides:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.

42 U.S.C. § 16913(d).

The nondelegation doctrine is rooted in the principle of separation of powers. It is derived from Article I, section I of the United States Constitution: "All legislative Powers herein granted shall be vested in a Congress of the United States... ." U.S. Const. art. I, § I. "Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested." Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935). However, not all delegations of legislative authority are prohibited. "So long as Congress `shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'" Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme Court has further clarified that Congress provides an intelligible principle "if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Am. Power & Light Co. v. Sec. & Exch. Comm'n, 329 U.S. 90, 105 (1946).

We conclude that SORNA provides the Attorney General with an intelligible principle, and is a valid delegation of legislative authority. SORNA contains a "clearly delineat[ed]" policy which guides the Attorney General in the exercise of his delegated authority. Section 16901 sets forth the congressional policy of SORNA, "to protect the public from sex offenders and offenders against children." 42 U.S.C. § 16901. The Supreme Court has found broad policy statements, like that in SORNA, sufficient to provide an intelligible principle for delegation. See, e.g, Yakus v. United States, 321 U.S. 414 (1944) (upholding a delegation of legislative authority based on the general policy to set prices that are "generally fair and equitable"); Nat'l Broad. Co. v. United States, 319 U.S. 190 (1943) (upholding a delegation of legislative authority based on the general policy to regulate in the "public interest").

SORNA also contains boundaries on the authority delegated to the Attorney General. Essentially, section 16913(d) delegates one narrow question to the Attorney General: Do SORNA's requirements apply retroactively to offenders whose convictions predate SORNA's enactment?

The question of retroactivity has a defined, narrow universe of answers. "[T]he Attorney General cannot do much more than simply determine whether or not SORNA applies to [individuals convicted of covered sex offenses prior to SORNA's enactment]." United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010). In comparison, the authority delegated in SORNA is more bounded and narrow than other delegations the Supreme Court has upheld. For example, in Mistretta the Supreme Court upheld the delegation of authority to the Sentencing Commission to create the federal sentencing guidelines. Mistretta, 488 U.S. at 374-79.

We agree with our sister Circuits3 that section 16913(d) of SORNA is a valid delegation of authority because Congress provided the Attorney General with an intelligible principle to follow.

Affirmed.

US v Adam Ray Fernandez

2-28-2012 Arkansas:

US v Adam Ray Fernandez
671 F.3d 697 (2012)

Adam Ray Fernandez pleaded guilty to one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. The district court sentenced him to 18 months' imprisonment and five years' supervised release. Fernandez appeals the district court's denial of his motion to dismiss the indictment. We affirm in part and reverse in part.

On April 26, 2010, a detective in the Fort Smith Police Department learned that Fernandez was living in Arkansas and had been convicted previously in Oklahoma state court of crimes that required him to register as a sex offender. Fernandez was convicted of forcible sodomy in 1993 and second-degree rape in 1996. Before his release from state prison in 2009, Fernandez signed a notice acknowledging his duty to register as a sex offender. The detective verified that Fernandez had not registered as a sex offender in the State of Arkansas or in the city of Fort Smith, as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq.

A grand jury charged Fernandez with knowingly failing to register as a sex offender after traveling in interstate commerce, in violation of 18 U.S.C. § 2250. He moved unsuccessfully to dismiss the indictment, and then entered a conditional guilty plea in which he reserved the right to appeal the district court's ruling on the motion.

Fernandez first argues on appeal that the SORNA violates the "non-delegation doctrine" of the Constitution, because 42 U.S.C. § 16913(d) authorizes the Attorney General to determine the scope of the law. Pursuant to § 16913(d), the Attorney General promulgated rules concerning the applicability of the SORNA, see, e.g., 28 C.F.R. § 72.3 (2011), and Fernandez seeks to challenge his authority to do so.

The district court ruled that under this circuit's decisions in United States v. Hacker, 565 F.3d 522, 527-28 (8th Cir.2009), and United States v. May, 535 F.3d 912, 920-21 (8th Cir.2008), Fernandez lacked standing to bring this challenge. These cases held that the scope of the Attorney General's rulemaking power under § 16913(d) was limited to defendants who were convicted of sex offenses prior to SORNA's enactment, but who were unable to register under § 16913(b). Only those unable to register before the SORNA's enactment, therefore, had standing to challenge § 16913(d) as a violation of the non-delegation doctrine. See May, 535 F.3d at 921. Because Fernandez was able to register upon his release from prison in 2009, the district court ruled he did not have standing to challenge § 16913(d).

May and its progeny, however, have been superseded by the Supreme Court's recent decision in Reynolds v. United States, ___ U.S. ___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). Reynolds held that the Attorney General's rulemaking power extends to all "pre-Act (and preimplementation) offenders" and that the "Act's registration requirements do not apply to pre-Act offenders until the Attorney General so specifies." Id. at 984. Because Fernandez committed the underlying sex offenses prior to the SORNA's implementation, he is subject to the Attorney General's authority to make rules under § 16913(d), and has standing to challenge the grant of that authority by Congress. While the district court understandably relied on our circuit precedent, Reynolds establishes that Fernandez has standing to raise his non-delegation claim, and we remand for the district court to consider that claim on the merits.

Fernandez's other challenges to the district court's ruling are foreclosed by circuit precedent. This court in May, 535 F.3d at 921-22, and United States v. Howell, 552 F.3d 709, 713-17 (8th Cir.2009), held that Congress had authority under the Commerce Clause to enact 18 U.S.C. § 2250 and 42 U.S.C. § 16913, respectively.

NOTE: There are many folks whose forms did not say anything about moving to another state and registering, therefore have never received the notification mentioned here!

In May, 535 F.3d at 921, and United States v. Baccam, 562 F.3d 1197, 1198-1200 (8th Cir.2009), this court held that notice to a sex offender of state law requirements that he must register when moving between jurisdictions is sufficient to establish that a prosecution for failure to register under the SORNA is consistent with the Due Process Clause.

Baccam (relied on fact he had signed state forms) also held that a sex offender is subject to prosecution under § 2250(a) even if he has not received notice of the SORNA's registration requirements pursuant to 42 U.S.C. § 16917. The district court thus correctly rejected identical arguments raised by Fernandez.

For these reasons, we affirm in part, reverse in part, and remand for further proceedings.

US v Baccam

4-28-2009 Arkansas:

US v Baccam
(562 F.3d 1197 (2009)

Phasung Lu Baccam was convicted under 18 U.S.C. § 2250 for failing to register as a sex offender after he moved to Arkansas from California where he had been convicted of a sex offense under state law. The district court1 denied his motion to dismiss the indictment on the ground that he had not received notice of the federal sex offender registration law. Baccam appeals, and we affirm.

In 1996 Baccam was convicted in California of sexual contact with a minor female. Under California law this conviction required him to maintain registration as a sex offender throughout his lifetime.

Cal.Penal Code § 290(b) (Deering 2009). Two "Notice of Sex Offender Registration Requirement" forms that Baccam signed on February 8, 1999 and November 10, 2003 not only detailed his registration requirements within California, but also notified him that if he moved to another state he would need to register in that state within ten days and notify the law enforcement agency with which he was last registered of his change of residence. After Baccam was arrested in California for failure to update his registration he signed another form on September 19, 2005. That form required him to initial his acknowledgment that he was required to register as a sex offender in any state to which he might relocate.

In the summer of 2007 Baccam moved to Arkansas but did not register as a sex offender. When he was arrested in September 2007 for traffic violations, officials discovered that he had not registered as a sex offender in their state as required by California, Arkansas, and federal law. He was later indicted under the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250, for his failure to register. ....

Baccam moved to dismiss the indictment charging him under § 2250(a). After the district court denied the motion, Baccam entered a conditional guilty plea and was sentenced to twenty four months. We review de novo the denial of a motion to dismiss an indictment. See United States v. Cvijanovich,556 F.3d 857, 862 (8th Cir.2009).

Baccam contends that he could not, as a matter of law, knowingly fail to register under SORNA because he was never told of his specific registration obligations under that law. A provision in SORNA entitled "Duty to notify sex offenders of registration requirements and to register" states that "[a]n appropriate official shall... inform the sex offender of the duties of a sex offender under this title and explain those duties." 42 U.S.C. § 16917(a).

Baccam contends that because there is no evidence that he was ever informed about his duties under SORNA, which had been enacted in 2006 after he had signed the California forms informing him of his duty to register if he moved to a different state, the government cannot prove an element of the offense and the indictment should have been dismissed.

The government argues that the scienter requirement in § 2250(a) does not require that Baccam specifically knew he was violating SORNA, but only that he knew he was violating a legal registration requirement upon relocating. It urges that Baccam knew he was required to register in a new state because of the information provided him on the California forms he had signed in 1999, 2003, and 2005. .....

We conclude that it would be inconsistent with SORNA's purpose of protecting the public by strengthening the system of sex offender registration not to give effect to state law notifications that relocation requires registration in the new jurisdiction. There is no reason to believe that the SORNA notice provision in § 16917 was intended to dilute the effect of state notice requirements, given the stated congressional intent to protect the public by establishing a comprehensive national system for registration of sex offenders. 42 U.S.C. § 16901.

We conclude that Baccam had adequate notice of his registration obligations based on the information provided him in the California registration forms, even if that notice did not explain that failure to register would be a violation of federal law as well as state law. Baccam does not deny that he knew that he needed to register in Arkansas. Had he done so, he would have received notification of SORNA's requirements, and would have been in compliance with federal law.3

Accordingly, we affirm the judgment of the district court.

Wright v State

9-21-2011 Arkansas:

Wright v State
(2011 Ark. 356)

(Effectively this case holds, that once convicted a person must register, and if the case is later overturned, the person is still criminally responsible for any Failure to Register charge which occurred during the period before the case was overturned)

On June 28, 2005, appellant James Brian Wright entered a plea of guilty in the Sebastian County Circuit Court, Fort Smith District, to the offenses of overdraft and failure to comply with the reporting requirements of the Sex and Child Offender Registration Act. As a result, the circuit court suspended imposition of sentence for a period of five years on both convictions. For each offense, appellant was sentenced to two years in prison followed by a four-year suspended imposition of sentence. Appellant brings this appeal from the circuit court's order denying the latest in a series of motions that he filed seeking to set aside his convictions for failure to register as a sex offender. For reversal, he contends that his failure-to-register convictions should be overturned because an Oklahoma court vacated the rape conviction on which the registration requirement was based, that the circuit court's refusal to set aside the convictions violated the Full Faith and Credit Clause of the United States Constitution; and that under federal law it was the responsibility of the releasing institution to inform the local government of the requirement to register. We affirm the circuit court's decision that appellant was not entitled to postconviction relief.

At issue in this case are appellant's 2005 and 2006 convictions for failing to register as a sex offender. In May 2008, an Oklahoma District Court granted appellant's application for postconviction relief and vacated appellant's 1994 conviction for rape. On June 16, 2008, appellant filed a petition in circuit court pursuant to Arkansas Rule of Criminal Procedure 37.1 (2011), arguing that his failure-to-register convictions should be set aside because the rape conviction, which led to the requirement for him to register as a sex offender, had been vacated. In July 2008, the circuit court denied appellant's petition as untimely. The court also noted that appellant was under an obligation to register when he pled guilty to the then valid charges of failing to register as a sex offender.1

On November 26, 2008, appellant filed a petition for writ of error coram nobis in circuit court. In this petition, appellant also argued that his convictions for failing to register should be vacated due to the setting aside of his Oklahoma rape conviction. By an order dated December 5, 2008, the circuit court denied the petition for writ of error coram nobis, finding that the setting aside of the rape conviction had no effect on his convictions for failing to register because, at the time appellant pled guilty to those offenses, he was required by law to register as a sex offender.

US v Springston

8-18-2011 Arkansas:

U.S. v. Springston
(650 F.3d 1153 (2011)

Bobby Lynn Springston entered a conditional guilty plea to one count of failing to register as a sex offender, in violation of 18 U.S.C. § 2250. The district court sentenced him to 36 months' imprisonment and 10 years' supervised release. Springston appeals the district court's denial of his motion to dismiss the indictment, and three special conditions of supervised release imposed by the district court. We affirm Springston's conviction, vacate the challenged special conditions of supervised release, and remand for further proceedings.

Springston also renews challenges to three of the special conditions of his supervised release: special condition 2, which prohibits him from having unsupervised contact with minors; special condition 3, which provides that he may not access the Internet without prior approval from the probation office and may not have Internet access at his residence; and special condition 6, which requires that he submit to mental health testing or treatment with an emphasis on sex offender treatment, as deemed necessary and directed by a probation officer. We review the special conditions for abuse of discretion. United States v. Durham, 618 F.3d 921, 933 (8th Cir. 2010).

Springston argues that the district court abused its discretion by imposing special conditions 2, 3, and 6, because they do not comply with any of the requirements in § 3583 and are not supported by particularized findings. The government concedes that the district court erred by imposing special condition 3, and we agree. The record, as the government describes it, is "devoid of evidence that [Springston] has ever used a computer for any purpose." We therefore vacate special condition 3.

We likewise conclude that the district court abused its discretion by imposing special conditions 2 and 6 without adequate explanation. The court's only statement regarding the need for those special conditions came in response to Springston's objections at the sentencing hearing. At that point, the court said that "Mr. Springston's history as a sex offender justifies all of those conditions."

Our cases say that a court may impose a special condition on the ground that it is related to a defendant's prior offense, see United States v. Smart, 472 F.3d 556, 559 (8th Cir. 2006), but that a court "may not impose a special condition on all those found guilty of a particular offense." Davis, 452 F.3d at 995. The court must "conduct an inquiry `on an individualized basis,' looking at the specific facts of the defendant's criminal history and his particular offenses," and make "a particularized showing of the need for the condition in each case." United States v. Kelly, 625 F.3d 516, 520 (8th Cir. 2010) (quoting Davis, 452 F.3d at 995). We applied this proposition in United States v. Bender, 566 F.3d 748 (8th Cir. 2009), where the district court explained that it imposed a special condition barring the defendant from possessing sexually stimulating material because "sex offenders need to have a very tight rein," and because "a sex offender doesn't have any business looking at Playboy magazine." Id. at 752. This court held that because the district court considered the defendant as "part of a class" of persons convicted of sex offenses, its findings in support of the special condition were "not sufficiently particularized to the defendant." Id.

At some point, there must be a limit to the need for an individualized inquiry, because certain characteristics may justify corresponding conditions for virtually all offenders with such characteristics, but the court's discussion here was insufficient. The court said during the sentencing hearing that there was "no indication" that Springston will "get into any further sex-related offenses," and then made no findings particular to Springston regarding the need for the conditions. Springston's prior offense did not involve a minor, and there was nothing in the record suggesting that Springston was a risk to reoffend against adults. The court simply did not explain why it believed that Springston's twenty-five-year-old conviction justified the conditions. See United States v. Scott, 270 F.3d 632, 634, 636 (8th Cir. 2001). It may be that similar special conditions could be justified in a case involving failure to register as a sex offender, such as when there is reason to believe that the failure to register evidences recalcitrance and an ongoing proclivity to commit sexual crimes, but the district court expressly stated that this is not such a case. We therefore vacate special conditions 2 and 6.

We affirm the judgment of conviction, vacate special conditions 2, 3, and 6, and remand for further proceedings consistent with this opinion.