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.

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

State v Kimbrough

4-20-2012 Ohio:

State v Kimbrough
(2012 Ohio 1773)

The essence of this is, that AWA/SORNA changed the penalty for failure to register, and that new penalty cannot be applied to folks who were previously registered (before AWA/SORNA was enacted in Ohio)

The court said:

The state of Ohio appeals from the termination entry ordering defendant-appellee Robert Kimbrough to serve five years of community-control sanctions for failing to notify the sheriff of Montgomery County that he had changed his address as required by R.C. 2950.05(A).

In December 2005, Kimbrough was convicted of gross sexual imposition and two counts of rape. He, therefore, became subject to the notification requirements of Ohio’s version of Megan’s Law. See former R.C. Chapter 2950. At the time, former R.C. 2950.05(A) required those required to register under R.C. 2950.04 to notify the sheriff “at least twenty days prior to changing the offender’s . . . residence address * * * .” Former R.C. 2950.05(F)(1) provided: “No person who is required to notify a sheriff of a change of address pursuant to division (A) of this section shall fail to notify the appropriate sheriff in accordance with that division.” A violation of former R.C. 2950.05 was a third-degree felony. Former R.C. 2950.99(A)(1)(a)(i).

In 2007, the General Assembly enacted the Ohio version of the federal Adam Walsh Act, P.L. No. 109-248, 120 Stat. 587, codified at Section 16901 et seq., Title 42 U.S. Code.

The Ohio version included two parts: (1) 2007 Am.Sub.S.B. No. 10, which adopted a three-tiered system of sex offender classification that depended upon the identity of the sex offense of which the offender was convicted, with different, and generally more onerous, reporting, notification, and registration requirements; and (2) 2007 S.B. 97, which changed the penalties attached to conviction for failure to comply with requirements, and, in many situations, enhanced those penalties. Both parts of the Adam Walsh Act became effective on January 1, 2008. State v. Buelow, 2d Dist. Montgomery No. 24570, 2012-Ohio-832, ¶ 6.

R.C. 2950.05 continues to provide that those offenders required to register under R.C. 2950.04 shall notify the sheriff of any change in residence address “at least twenty days prior to changing the address * * * .” R.C. 2950.05(A). And as before, R.C. 2950.05(F)(1) states that “[n]o person who is required to notify a sheriff of a change of address pursuant to division (A) of this section * * * shall fail to notify the appropriate sheriff in accordance with that division.” But now, under R.C. 2950.99,

If the most serious sexually oriented offense * * * that was the basis of the * * * change of address notification * * * is a felony of the first, second, third, or fourth degree if committed by an adult * * * the offender is guilty of a felony of the same degree as the most serious sexually oriented offense * * * that was the basis of the notice of * * * change of address * * * requirement that was violated * * * .” R.C. 2950.99(A)(1)(a)(ii).

Nevertheless, this court has recognized that application of the Adam Walsh Act classification scheme and reporting, notification, and registration requirements to someone who committed his or her offense before the enactment of the Adam Walsh Act constitutes a retroactive application of a punitive statute, in violation of the Retroactive Laws prohibition in Article II, Section 28, of the Ohio Constitution. Buelow at ¶ 7, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108.

Following this precedent, we overrule the state’s single assignment of error and affirm the judgment of the trial court.