US v Cooper

4-10-2014 Delaware:

US v Cooper

Keith Allen Cooper (“Cooper”) is a sex offender who was convicted of rape in Oklahoma and paroled prior to the enactment of the Sex Offender Registration and Notification Act (“SORNA” or the “Act”), Pub.L. No. 109–248, 120 Stat. 587, 590–611 (2006) (codified primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et seq .). After Congress enacted SORNA, Cooper was convicted of failing to comply with the sex offender registration requirements set forth in SORNA. In bringing this appeal, Cooper invokes the nondelegation doctrine, challenging the constitutionality of the provision of SORNA in which Congress delegated to the Attorney General the authority to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders.

We conclude that SORNA does not violate the nondelegation doctrine. Accordingly, we will affirm Cooper's conviction.

In 1999, Cooper was convicted in Oklahoma state court on three counts of rape in the first degree. Cooper was paroled in January 2006. As required by pre-SORNA law, he registered as a sex offender in Oklahoma on or around January 20, 2006.

In July 2006, Congress enacted SORNA, which requires sex offenders to comply with specific registration requirements and to update registration information in the event of a change of name, address, employment, or student status. Pursuant to the promulgation of an administrative rule on February 28, 2007, and subsequent issuance of a final rule, the Attorney General made SORNA's registration requirements applicable to individuals (such as Cooper) who were convicted of sex offenses prior to the enactment of SORNA.

In or around early 2011, Cooper moved from Oklahoma to Delaware. Although SORNA required Cooper to notify authorities of this change in residence, Cooper did not provide either Oklahoma or Delaware authorities with his updated residence information, nor did he separately register as a sex offender in Delaware after moving there.

In 2012, Cooper was arrested and charged with one count of failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a), in the United States District Court for the District of Delaware. On November 2, 2012, Cooper moved to dismiss the indictment on the basis that, inter alia, SORNA's delegation of authority to the Attorney General to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders violates the nondelegation doctrine and thus is unconstitutional. The District Court denied Cooper's motion to dismiss.

... ... ...

Relevant to this appeal, SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update registration. 18 U.S.C. § 2250(a).1 Once a sex offender is subject to SORNA's registration requirements, that offender can be convicted under § 2250 if he thereafter engages in interstate or foreign travel and then fails to register. See Carr v. United States, 560 U.S. 438, 447, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).

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It may well be, as Justice Scalia has written, that in delegating this responsibility to the Attorney General, Congress “sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable.” Reynolds v. United States, ––– U.S. ––––, ––––, 132 S.Ct. 975, 986, 181 L.Ed.2d 935 (2012) (Scalia, J., dissenting). Indeed, we are puzzled as to why Congress decided to delegate to the Attorney General the authority to determine the applicability of SORNA's registration requirements to pre-SORNA offenders. The decision to make SORNA's registration requirements applicable to pre-Act offenders is a weighty one—particularly for the class of pre-SORNA offenders affected by that decision. Although we find Congress' delegation of this important decision curious at best, we hold that it does not amount to an unconstitutional abdication.

Under controlling nondelegation doctrine jurisprudence, the hurdle for the government in this case is not high.6 Applying the precedential authority on the nondelegation doctrine, we conclude that SORNA's delegation to the Attorney General in 42 U.S.C. § 16913(d) does not violate the nondelegation doctrine. Accordingly, we will affirm.

US v Goodwin

5-8-2013 Illinois:

US v Goodwin
No. 12-2921.

Charles Goodwin pleaded guilty to knowingly failing to register and update a registration as a sex offender, as required by the Sex Offender Registration and Notification Act ("SORNA"). He was sentenced to 27 months' imprisonment, to be followed by a life term of supervised release, subject to ten special conditions.

Goodwin claims that the relevant SORNA provision is an unconstitutional delegation of legislative authority; argues that the district court committed plain error by miscalculating his advisory Sentencing Guidelines range for supervised release and then imposing a sentence within that miscalculated range; and challenges four conditions of his supervised release.

We find his nondelegation claim unpersuasive, and therefore affirm his conviction. We further hold that the erroneous calculation of the advisory Guidelines range and the imposition of special conditions without explanation by the district court or support in the record warrant vacating his sentence and remanding to the district court for resentencing.

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Goodwin argues that his deprivation of expressive material under Conditions 6 & 7 violates his First Amendment rights. Since we vacate these conditions on other grounds, we need not reach this constitutional question. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (19836) (Brandeis, J., concurring).

6. Other Conditions
Goodwin's objections to the special conditions that the district court imposed focus exclusively on Conditions 4-7. We wonder why he has not objected to Conditions 8 and 10 as well. These two conditions require him to participate (at his own expense) in sex offender treatment and mental health counseling, respectively, "as deemed necessary by the probation officer." As with the other special conditions, the district court imposed these conditions without explanation.

We note once again that each special condition imposed must be tailored to Goodwin and his needs, see Angle, 598 F.3d at 360-61, and involve no greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, protection of the public, and rehabilitation, see Holm, 326 F.3d at 876. Given that Goodwin's instant offense is for a failure to register, the penological purpose of these treatment and counseling programs is far from clear.

Courts of appeals ordinarily abstain from considering issues sua sponte. See Wood v. Milyard, 132 S.Ct. 1826, 1834 (2012). Nonetheless, "[w]hen in a criminal appeal the court of appeals notices a plain error, it can reverse even if the appellant had not drawn the error to the court's attention." United States v. Gutierrez-Ceja, 711 F.3d 780, 784 (7th Cir. 2013). Here, we are unable to discern any connection between Goodwin's offense and the purposes that sex offender treatment and mental health counseling typically serve. Thus, Conditions 8 and 10 require additional consideration on remand, for similar reasons as explained in our discussion of Conditions 4-7.

III. CONCLUSION.

For the foregoing reasons, we AFFIRM Goodwin's conviction, VACATE the supervised release portion of his sentence, and REMAND to the district court for resentencing consistent with this opinion. The resentencing shall be limited to a reassessment of the length of Goodwin's supervised release and any special conditions imposed during this period.

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State v Ramos

3-10-2009 Washington:

State v Ramos
202 P.3d 383 (2009)

Domingo Torres Ramos appeals his conviction of failure to report to the Thurston County Sheriff's Office as a registered sex offender, arguing that the delegated classification system is unconstitutional. Because he was not classified by any entity other than a sheriff, we agree that there is a violation of separation of powers under these facts. We reverse and remand with instructions to dismiss.1

FACTS
¶ 2 In 1993, Ramos was convicted of two counts of sexual exploitation of a minor. The trial court sentenced him to 42 months' incarceration, and he completed his confinement in 1995. At the time of his conviction and at the time of his release, Washington did not require persons convicted of sexual exploitation of a minor to register as sex offenders. As a result, no government entity classified him as a level I, II, or III sex offender after his confinement.

¶ 3 The legislature later added sexual exploitation of a minor as a sex offense to the list of crimes requiring registration under RCW 9A.44.130. According to Detective Daryl Leischner, who is in charge of Thurston County's sex offender registration unit, Ramos knew of these changes and registered in 2001. In 2001, the Thurston County Sheriff's Office classified Ramos as a level II sex offender under RCW 4.24.550(6)(b). According to Leischner, level I offenders pose a relatively low risk of recidivism, level II offenders pose an intermediate risk, and level III offenders pose a high risk. Leischner testified that, although the sheriff's office is directed by statute to assign risk classifications to offenders, the statute "does not give the advice as to what the levels should consist of." Report of Proceedings at 122. Instead, the statute sets forth public notification requirements.

¶ 4 Effective September 1, 2006, the legislature enacted a law requiring level II or III sex offenders to report in person every 90 days to the sheriff of the county where the offender is registered. RCW 9A.44.130(7). On January 8, 2007, Ramos failed to report, as required by this law, to the Thurston County Sheriff. Law enforcement officers later arrested and charged him with violation of sex offender registration. RCW 9A.44.130. Following a bench trial, the court found him guilty of one count of failing to comply with the RCW 9A.44.130(7) reporting requirements. He appeals.

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¶ 20 The proper delegation of defining an element of a crime does not always require the legislature to provide word-for-word definitions; it does, however, require that the legislature provide the other branches adequate direction to a reach a sufficient definition. For example, the legislature may instruct the judiciary to use the common law to supplement statutory definitions. State v. Chavez, 134 Wn.App. 657, 667-68, 142 P.3d 1110 (2006) (finding constitutional delegation of defining the crime of assault when the legislature instructed that the common law must supplement all penal statutes under RCW 9A.04.060). A term that is incurably vague, however, may not be delegated to another branch for definition. State v. Sansone, 127 Wn.App. 630, 642, 643, 111 P.3d 1251 (2005) ("The definition of pornography was not an administrative detail that could be properly delegated to the [community corrections officer].... The fact that one term could be defined so differently indicates the impropriety of delegation.").

¶ 21 Here, the sex offender classification statute does not provide any comparable guidance to a local law enforcement agency. At most, RCW 4.24.550(6) instructs a local law enforcement agency to consider offender classifications made by other agencies; however, these prior classifications are not binding on the law enforcement agency. RCW 4.24.550(10).9 As noted, RCW 4.24.550 itself provides neither standards nor definitions to guide law enforcement agencies in determining an offender's classification. Moreover, even if we were to assume the nonbinding determinations of other agencies provided sufficient guidance to the law enforcement agency, in Ramos's case, there were no such prior assessments for the Thurston County Sheriff's Office to review. By failing to provide criteria or standards, the legislature has delegated full responsibility for defining offenders' risk levels, an element of a felony, to local law enforcement agencies.

¶ 22 We hold that the legislature improperly delegated the task of classifying Ramos as a sex offender under RCW 4.24.550(6)(b) to the Thurston County Sheriff's Office. The remedy is to reverse with instructions to dismiss his conviction.10State v. Dougall,89 Wn.2d 118, 123, 570 P.2d 135 (1977) (reversing the trial court's denial of the defendant's motion to dismiss criminal charges based on RCW 69.50.201(d) and finding the statute an unconstitutional delegation of legislative authority); State v. Gilroy,37 Wn.2d 41, 48-49, 221 P.2d 549 (1950) (affirming the trial court's dismissal of charges against Gilroy, finding the statute improperly delegated legislative power).

¶ 23 Reversed and remanded with instructions to dismiss.

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.