USA v Del Valle-Cruz

4-6-15 Puerto Rico, Oklahoma, Florida:

USA v Del Valle-Cruz

Defendant Carlos Manuel Del Valle-Cruz ("Del Valle-Cruz") was sentenced to twenty-one months in prison and seven years of supervised release after pleading guilty to one count of failing to register as a sex offender.

By our count, this is the third time Del Valle-Cruz has been convicted of failing to register since his 1997 sex offense conviction. As troubling as that is, we note that he has not been charged with any other sex offenses in the intervening eighteen years.

The terms of Del Valle-Cruz's supervised release include a series of special conditions that prohibit him from contact with minors and require him to undergo sex offender treatment — terms that were not imposed as part of his sentence for the underlying sex offense. Moreover, these conditions were imposed in a boilerplate fashion, devoid of any explanation by the district court.

Del Valle-Cruz now seeks to vacate his conviction or, failing that, the aforementioned special conditions. A waiver of appeal bars Del Valle-Cruz's appeal of his conviction, as well as his appeal of most of the special conditions. NOTE: There is a large section within decision that explains this more fully, and includes the Oklahoma case of Starkey.

However, as to his appeal of the conditions that would interfere with his relationship with his son, to avoid a miscarriage of justice, we decline to enforce the waiver and instead vacate those conditions that would prevent Del Valle-Cruz from contact with, or residing with minors.

We will remand for de novo resentencing with respect to the supervised release term, so that the district court can consider the supervised release conditions as a whole and in light of intervening precedent.

Upon remand for further proceedings on the special conditions, we invite the district court to revisit the conditions and to explain their justification in this case.

... ... ...

Conclusion

We dismiss Del Valle-Cruz's appeal of his conviction, as well as the conditions imposing sex offender treatment, and prohibiting working with or volunteering with minors.

We vacate conditions 13 and 15, and we remand to the district court for re-sentencing consistent with this opinion.

The re-sentencing shall be limited to the terms of supervised release, and at that time, given the concerns we have expressed herein, the district court may revisit all of the special conditions. United States v. Francois, 715 F.3d 21, 34 (1st Cir. 2013) ("[P]recedent in this Circuit establishes that `an appellate ruling invalidating a sentence . . . may implicate the trial judge's comprehensive, interdependent imposition of a penalty and thus require resentencing on all counts.'" (quoting United States v. Melvin, 27 F.3d 710, 712 (1st Cir. 1994))). At resentencing the district court should explain its reasons for the imposition of conditions and provide factual findings supported by the record.

USA v Medina

3-4-2015 Puerto Rico:

USA v Medina

Moisés Medina failed to register as a sex offender when he moved to Puerto Rico in May of 2012, even though he had been convicted of a state sex offense four years earlier. As a result, Medina was arrested for violating the Sex Offender Notification and Registration Act, also known as SORNA, 18 U.S.C. § 2250. He then pled guilty and was sentenced to a thirty month prison term, to be followed by a twenty-year term of supervised release.

The supervised release portion of the sentence included various conditions that Medina must follow or face returning to prison. Medina now challenges two of those conditions as well the
length of the supervised release term. One of the two conditions restricts Medina from accessing or possessing a wide range of sexually stimulating material. The other requires Medina to submit to penile plethysmograph testing -- a particularly intrusive procedure -- if the sex offender treatment program in which he must participate as a condition of his supervised release chooses to use such testing.

We hold that the District Court erred in setting the length of the supervised release term. We further hold that the District Court inadequately justified the imposition of the supervised release conditions that Medina challenges. We therefore vacate Medina's supervised release sentence term and the conditions challenged on this appeal, and remand for re-sentencing.

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.

USA v Roberson

5-21-2014:

USA v Roberson

This case addresses an important question of interpretation of first impression in the federal courts of appeals. Defendant James Roberson appeals from a district court denial of his motion to dismiss and from his criminal conviction for his failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act. 18 U.S.C. § 2250.

At the time of his federal indictment in July 2012, Roberson stood convicted, in 1998, of the Massachusetts crime of indecent assault and battery on a child under the age of 14. Mass. Gen. Laws ch. 265, § 13B. He did not appeal from that conviction; nor did he ever register as a sex offender at any time between 2010 and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on November 16, Roberson moved to withdraw his guilty plea to the sex crime in the state court. Roberson did not and does not allege that he was innocent of the indecent assault. But he did allege that his guilty plea had entered after a constitutionally defective procedure. The local prosecutor did not oppose the motion because the plea judge had utilized incomplete and inadequate plea-colloquy procedures before June 16, 2000 and there was no independent evidence that the proper plea procedures were followed during Roberson's March 4, 1998 plea hearing.1 The local state district court allowed the unopposed motion on January 11, 2013. We assume arguendo that Roberson's plea colloquy was constitutionally defective.

On February 15, 2013, Roberson moved to dismiss his federal charges on the basis that he no longer had a predicate sex offense to support a SORNA violation. More specifically, he argued that because of the constitutional defect, he was never "validly" convicted. He argued that his case is governed by Burgett v. Texas, 389 U.S. 109 (1967), and not by Lewis v. United States, 445 U.S. 55 (1980).

Agreeing with the district court, we hold that SORNA's registration requirement applied to Roberson as a person who "was convicted" of a sex offense, 42 U.S.C. § 16911(1), enforced by 18 U.S.C. § 2250, regardless of whether that conviction is later vacated, when federal charges have been brought for conduct before the vacation of conviction. We also reject Roberson's additional challenges.

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).

... ... ...

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.

Northwest Sex Offender Faces Resentencing

3-17-2014 Washington:

A challenge to federal sex-offender registration requirements (USA v Cabrera-Gutierrez) based on the Supreme Court's support of the new health care reform law failed to convince the 9th Circuit.

Pedro Cabrera-Gutierrez, who spent three years in prison for having sex with an intoxicated 15-year-old in 1998, had argued that Congress lacked the power to force him register as a sex offender across state lines because it was an "unconstitutional regulation of his inactivity" under the high court's ruling in National Federation of Independent Business v. Sebelius, the 2012 decision that found key provisions of Obamacare constitutional.

More than a decade after he served his original sentence, police in Yakima, Wash., charged Cabrera with failing to register under the Sex Offender Registration and Notification Act (SORNA).

A federal judge eventually sentenced Cabrera to a further 17 months behind bars and three years of supervised release. The 9th Circuit issued an appellate ruling in the case in June, but later withdrew it in favor of a panel rehearing. A divided three-judge panel issued a new ruling on Monday, affirming dismissal of Cabrera's registration challenge.

"Unlike Sebelius, SORNA does not regulate individuals 'precisely because they are doing nothing,'" Judge A. Wallace Tashima wrote for the panel. "SORNA applies only to individuals who have been convicted of a sexual offense. Thus, registration is required only of those individuals who, through being criminally charged and convicted, have placed themselves in a category of persons who pose a specific danger to society. Moreover, SORNA's application to Cabrera is based on his further admitted activities of traveling in interstate commerce and then failing to register. Thus, SORNA does not punish the type of inactivity addressed in Sebelius."

Juvenile Law Center Wins Second Ruling Declaring Pennsylvania's Juvenile Sex Offender Registration Requirements Unconstitutional

1-17-2014 Pennsylvania:

For the second time in the last three months, a Pennsylvania judge has ruled that Pennsylvania’s juvenile sex offender registration requirements are unconstitutional. On January 16, 2014, Monroe County Court of Common Pleas President Judge Margherita Patti-Worthington ruled that Pennsylvania's law requiring juveniles convicted of sexual offenses be subjected to lifetime sex offender registration violates their rights under the Pennsylvania Constitution. (Read Judge Patti-Worthington’s opinion here.)

In 2012, the General Assembly enacted new legislation (SORNA) requiring children convicted of certain sexual offenses to register for life on a sex offender registry. Shortly after the law went into effect, Juvenile Law Center, along with local counsel, Syzane Arifaj of the Monroe County Public Defender’s Office, filed motions on behalf of five youth adjudicated delinquent for offenses committed prior to the law’s effective date. The motions challenged SORNA under several provisions of the Pennsylvania and Federal constitutions as well as the Pennsylvania Juvenile Act.

In a well-reasoned decision, the Monroe County Court held that registration is unconstitutional because it infringes on the youths’ fundamental right to reputation and creates an irrebuttable presumption of dangerousness in violation of the Pennsylvania Constitution’s guarantee of due process. The Court based its decision on a historical analysis of the right to reputation and due process in Pennsylvania, as well as a review of SORNA’s impact on youth as compared to previous versions of Megan’s Law.

The Court drew upon recent U.S. Supreme Court jurisprudence to find that the label of “sex offender” creates harm to a youth’s reputation because it connotes a degree of dangerousness not typically present among youthful offenders. “Being a child implies a unique reputation in our society … Children’s habits are not solidified and this is contemplated in the law ... Where a child’s serious transgressions might have been looked on with a more lenient eye, especially as time passed and wounds were healed, [SORNA] will remind us that this person is a sexual offender and this reminder will persist for the rest of the juvenile’s life.”

The Court also considered the rate of recidivism among youth who commit sexual offenses to determine that the statute is not narrowly tailored to the compelling state interest in protecting the community. The extremely low rate of recidivism indicates that children are not dangerous and therefore do not require costly and burdensome monitoring and registration well into their adulthoods. The lack of any individualized inquiry prior to the imposition of registration further renders SORNA problematic. This presumption that the youth are dangerous without an opportunity to be heard until twenty-five years have passed does not provide meaningful due process.

Juvenile Law Center also challenged SORNA on behalf of juveniles subject to registration in Lancaster County, PA. We are awaiting a decision in that case.

In November 2013, Juvenile Court Judge John C. Uhler of York County, PA ruled SORNA unconstitutional under the Eighth Amendment, as well as the Due Process Clauses of the U.S. and Pennsylvania Constitutions (In the Interest of J.B. et al.). This case is currently on appeal to the Pennsylvania Supreme Court.

Petitioners were represented by Marsha L. Levick and Riya Saha Shah of Juvenile Law Center, and Syzane Arifaj of the Monroe County Public Defender’s Office. The Defender Association of Philadelphia also contributed assistance to the briefing. ..Source.. by Juvenile Law Center

Pennsylvania Supreme Court throws out parts of Megan's Law

This problem may be short lived, but correcting the mess caused by this -Legislative Error-, will be a disaster. Some folks may have to be released from prison or probation after having certain convictions overturned. All Lawmakers need to read their State Constitutions. Now if folks remember, Pennsylvania recently became SORNA Compliant according to the SMART Office. Welcome to the world of Chaos.

UPDATE: Just so folks know, this decision did not say "Megan's Law" is invalid, it said, the way CERTAIN provisions of "Megan's Law" was enacted in Pennsylvania ONLY was incorrect. Their state constitution says "enact laws ___this way__" and they failed to follow that way; a procedural legislative error, nothing more. However, correcting anything that was done pursuant to the resulting law (i.e., FTR charges, and other things) will be a disaster undoing (correcting) them.

12-17-2013 Pennsylvania:

The Pennsylvania Supreme Court threw out portions of the state's sex-offender registration law on Monday, telling lawmakers they violated the constitution's requirement that bills that become law must be confined to a single subject.

The justices ruled that a set of changes made to Megan's Law in 2004 was not constitutional, noting that the legislation also included such measures as a two-year statute of limitations on asbestos actions, the jurisdictional parameters of park police, and revisions to real estate law.

Pennsylvania's Constitution
Article III
Form of BillsSection 3.
No bill shall be passed containing more than one subject, which shall be clearly expressed in its title, except a general appropriation bill or a bill codifying or compiling the law or a part thereof.

The court then put its decision on hold for three months to allow the Legislature to find a remedy.

"We will stay our decision, as we have done under similar circumstances, in order to provide a reasonable amount of time for the General Assembly to consider appropriate remedial remedies, and to allow for a smooth transition period," wrote Justice Debra Todd for the five-justice majority.

As revised in 2004, Megan's law created a searchable online database of offenders, set new punishments for offenders who did not register, and added luring and institutional sexual assault to the list of offenses that require 10-year registration.

It also set notification rules for out-of-state offenders who move to Pennsylvania, altered duties of the Sexual Offenders Assessment Board, and established community notification about sexually violent offenders.

Todd said the single-subject rule, which dates to 1864 and has recently been a factor in several high-profile cases, gives people confidence they can weigh in before a bill is passed, and helps lawmakers know what they are voting on ahead of time.

"When an act of the Legislature violates the single-subject rule, all of its provisions are equally repugnant to the constitution, and, thus, equally void," Todd said.

Chief Justice Ronald Castille filed a lone dissent, saying it was a close question but that he would have upheld the law.

"Any law passing through the enactment process is the result of salutary legislative compromise and the single-subject rule is not intended to completely discourage such compromise," Castille wrote.

Steve Miskin, a spokesman for the House Republican caucus, noted that revisions to Megan's Law enacted two years ago that brought Pennsylvania into compliance with the federal Adam Walsh Child Protection and Safety Act were drafted with an eye toward the case the court just decided.

Lifetime registration unconstitutional for sex offenders

This case is being appealed, see lower paragraph.

11-28-2013 Pennsylvania:

York County judge orders state police to remove seven teens from sex offender registry

Seven local teens facing lifetime registration as sex offenders just got a pass.

A local judge has found the lifetime registration requirement for juveniles to be unconstitutional.

Drawing heavily on last year's U.S. Supreme Court ruling that found mandatory life sentences for juvenile killers unconstitutional, Senior Judge John C. Uhler has held that lifetime registration for juvenile sex offenders also is unconstitutional for many of the same reasons.

In a 41-page analysis and opinion issued Nov. 4, Uhler ruled that the recently implemented Pennsylvania Sexual Offender Registration and Notification Act (SORNA) violates the constitutional rights of juveniles because, while it also conflicts with the purposes of the state's Juvenile Act, it has created the same "one size fits all" feature that the U.S. Supreme Court found unconstitutional in juvenile murder sentencing.

District Attorney Tom Kearney said he will appeal Uhler's decision.

"We have to," Kearney said Monday. "It puts us in a position where one county is handling matters differently from other counties. The appellate courts will have to decide this."

Uhler noted there was little debate on how the law, which came into effect on Dec. 20, 2012, would affect juvenile offenders.

At the time, he stated, legislators seemed more keen on closing a Megan's Law loophole as it pertained to adult transient and homeless sex offenders.

The law was passed pursuant to federal requirements.

Under SORNA, juveniles adjudicated guilty or who admitted to rape, involuntary deviate sexual intercourse or aggravated indecent assault, are required to register with the state police for life.

The seven juveniles whose cases were considered by Uhler all had been adjudicated or made admissions before SORNA was enacted.

In his opinion, Uhler agreed that Pennsylvania's juvenile courts were created "to provide guidance and rehabilitation for the child and protection for society, not to affix criminal responsibility, guilt and punishment."

Referring to the U.S. Supreme Court rulings that banned mandatory life without parole for juveniles, Uhler agreed that "children are constitutionally different from adults for sentencing purposes ... (because of their) diminished culpability and greater prospects for reform."

Uhler also took into account the wealth of research that shows recidivism among juvenile sex offenders is extremely low.

And although the legislature intended SORNA to be non-punitive, Uhler found the opposite.

SORNA's registration requirements are significantly more stringent than Megan's Law, Uhler held. Uhler also agreed that the "law is not reasonably designed to fulfill its purported function" and that it constitutes additional punishment.

"This court finds the SORNA provisions pertaining to juveniles are punitive and violate the ex post facto (retroactivity) clauses of the Pennsylvania and United States Constitutions," Uhler wrote.

In acknowledging Uhler's decision, the Philadelphia-based Juvenile Law Center called it a "landmark ruling." Deputy director and chief counsel Marsha Levick said on the center's website, "Kids are different. As recognized by the U.S. Supreme Court and as dictated by research, children may not be punished like adults in our justice system.

"As a court of second chances, juvenile court cannot impose lifetime penalties on children who we know are uniquely capable of turning their lives around and contributing to their communities."

Registration requirements for sex offenders

Following is the required information juvenile sex offenders must provide Pennsylvania State Police for the Sexual Offender Registration and Notification Act.

• Names and aliases
• All addresses and residences
• Employment
• School enrollment
• All phone numbers
• Plate numbers and registration numbers for motor vehicles, including boats and planes
• Any temporary lodging
• Information on all Internet and social media accounts
• Occupational and professional licenses

Under SORNA, Tier III juvenile offenders -- those adjudicated or who have admitted to committing or attempting rape, involuntary deviate sexual intercourse, aggravated indecent assault and other specified crimes -- are to report in person to a designated authority every 90 days.

The juvenile also must report in person to notify authorities of any changes in registration information within three business days.

There is a mandatory minimum three-year prison sentence for the first failure to report and a five-year prison sentence for the first failure to provide accurate information.

On Nov. 4, York County Senior John C. Uhler ruled the lifetime registration requirement is unconstitutional.

On Monday, York County District Attorney Tom Kearney said he will appeal Uhler's ruling. ..Source.. by Rick Lee

United States v Kebodeaux

6-24-2013 Texas:

United States v Kebodeaux

SCOTUS Blog explains it best:

Holding: As applied to respondent Anthony Kebodeaux, the registration requirements of the Sex Offender Registration and Notification Act fall within the scope of Congress’s authority under the Necessary and Proper Clause. (i.e., he was required to register)

Judgment: Reversed, 7-2, in an opinion by Justice Breyer on June 24, 2013. Chief Justice Roberts and Justice Alito filed opinions concurring in the judgment. Justice Scalia filed a dissenting opinion. Justice Thomas filed a dissenting opinion, in which Justice Scalia joined as to parts I, II, and III-B.

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eAdvocate Research

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Did "Congressional Gremlins" play a part in the US v Kebodeaux decision?

6-25-2013 Washington DC:

There is no doubt that in Kebodeaux the US Supreme court solidified, with a healthy amount of verbiage, that Congress is using their "Necessary and Proper" reasoning to extend its powers over the land (Necessary and Proper is now the Congressional "catch-all reasoning."). This follows their use of Necessary and Proper use in the Comstock decision as well. Personally, this writer does not agree with the court and believes it will be years into the future before another set of Justices sets the record straight. How many other denials will be based on this "catch-all reasoning" in the meantime?

But that is not the portion of Kebodeaux I wish to address today. This is the portion that is relevant:

In today’s opinion, however, Justice Stephen Breyer, writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan, tactfully sidestepped the “Hotel California” theory by holding that Kebodeaux had never actually checked out of federal jurisdiction, thus repudiating that Fifth Circuit’s characterization of Kebodeaux’s release as “unconditional.” The Court accepted the Solicitor General’s argument that, “through a complex set of statutory cross-references,” Kebodeaux was subject to another registration requirement, the Wetterling Act, at the time of his release. SORNA was merely a modification of the registration requirements of the Wetterling Act.

Within the decision it says, Kebodeaux was released in 2004, registered then moved, and after the second move failed to register that move. In 2006 AWA was enacted, and applied retroactively to all convicted of sex offenses.

Now when the court said Wettering was still effective when Kebodeaux was released, I thought, thats impossible, AWA when it was enacted, REPEALED all prior laws, and since it was applied retroactively Kebodeaux would be correct, he didn't have to register.

So I went back to AWA to see if my memory was failing, using the Thomas Congressional website, here is what it says about the AWA law approved by Congress in 2006 (see "Text of Legislation" Version 5):

SEC. 128. REGISTRATION OF SEX OFFENDERS ENTERING THE UNITED STATES.

The Attorney General, ... ... ....

SEC. 129. REPEAL OF PREDECESSOR SEX OFFENDER PROGRAM.

(a) Repeal- Sections 170101 (42 U.S.C. 14071) and 170102 (42 U.S.C. 14072) of the Violent Crime Control and Law Enforcement Act of 1994, and section 8 of the Pam Lychner Sexual Offender Tracking and Identification Act of 1996 (42 U.S.C. 14073), are repealed.

(b) Effective Date- Notwithstanding any other provision of this Act, this section shall take effect on the date of the deadline determined in accordance with section 124(a).

SEC. 130. LIMITATION ON LIABILITY FOR THE NATIONAL CENTER FOR MISSING AND EXPLOITED CHILDREN.

So where did Sec. 129 disappear to? Congress approved that section, but it is not in current AWA law. Congressional Gremlins are at work again! In the beginning of AWA it shows the sections that are supposed to be in AWA:

Subtitle A--Sex Offender Registration and Notification

Sec. 111. Relevant definitions, including Amie Zyla expansion of sex offender definition and expanded inclusion of child predators.

... ... ....

Sec. 128. Registration of sex offenders entering the United States.

Sec. 129. Repeal of predecessor sex offender program.

... ... ....

Sec. 131. Immunity for good faith conduct.

What it shows is that, Section 129 was eliminated from the final law, and Section 131 was made Section 129. Who in Washington DC has the authority to override what Congress Approves?

The Office of Legislative Counsel in both the House and the Senate are responsible for drafting of, proposed laws and amendments, for Lawmakers to present to their respective House, but only the House Office of Legislative Counsel appears to be responsible for the final codification of laws presented to the President.

So we leave this issue with, is that where the Congressional Gremlins are that ignored AWA Section 129 approved by Congress in 2006, missing today, and which ultimately played a part in today's Kebodeaux decision?

For now have a great day and a better tomorrow.
eAdvocate...

ARK volunteer taken off sex-offender list

1-10-2013 Florida:

___ — who came to the public’s attention because of his wife’s role at the Animal Rescue Konsortium (ARK) in DeLand — has been removed from the Florida Sexual Offender/Predator Public Registry.

Critics of the ARK shelter, which was raided by the DeLand Police Department Nov. 8, complained that one of the shelter volunteers was a registered sex offender.

Just two weeks before the raid, on Oct. 26, ___ had been arrested by DeLand police and charged with failure to register properly as a sex offender. He had listed himself on police records as a transient, but had stayed at least occasionally at ARK.

He and his wife were homeless, and ARK president Maggi Hall had given them permission to live at the ARK shelter in exchange for caring for the 126 animals on the property.

After the raid, the his situation was dire, as they had few possessions and no home, and had difficulty finding work. His status as a registered sex offender made hard times even harder.

However, then he learned the dates of his conviction on sex charges predated the enactment of the Florida registry.

He was convicted of sexual assault in Michigan in 1996 when he was 22 years old. He said the charges had been brought by a former girlfriend.

Florida’s Public Safety Information Act, which requires sex offenders to be registered and their addresses published on a state website, did not go into effect until 1997.

He consulted with an attorney, who helped him have his name removed from the sex-offender registry. He’s happy to lose the label.

“I can live anywhere I want to,” he said.

Most jurisdictions restrict where registered sex offenders can live. The ARK shelter is among locations in DeLand that are off-limits as a sex offender’s residence.

He now has a good job, and he and his wife have a car and a new place to live in Orange City.

“Things are going good for us,” he said. “I’m happy.”

Depending on exactly where they live, the troubles with his past conviction may not be over.

In 2012, Orange City adopted a residency-restriction ordinance that applies to all sex offenders, whether or not they are listed on the state registry, and whether they were convicted in Florida or another state. ..Source.. by Jen Horton

Man disputes Megan’s Law registration

9-24-2012 Pennsylvania:

WILKES-BARRE – A man who says he should be excluded from registering under Megan’s Law after pleading guilty to a corruption of minors charge will not have to – for now — a county senior judge said Tuesday.

Traian Jovanov, 28, with a last known address of Pine Street, Hazleton, said in court papers last month that his plea agreement did not include the specification that he needs to register under Megan’s Law while out of prison, and therefore should not have to.

Jovanov is on probation and residing in Luzerne County, according to court papers.

In March 2007, Jovanov was sentenced to 40 to 80 months in prison on an unrelated escape charge and two years house arrest on the corruption of minors charge.

Police said Jovanov had inappropriate contact with a juvenile female in April 2006. He was originally charged with a number of crimes, include rape and indecent assault.

In the escape case, investigators say Jovanov was serving a sentence on drug and receiving stolen property charges at the Luzerne County Correctional Facility in March 2006 and was on work release.

Investigators said Jovanov did not return to the prison after completing a work shift.

Jovanov’s attorney, Tom Marsilio, said in court papers that nothing at the time required his client to register under Megan’s Law, but that now the county probation office is requiring Jovanov to do so.

After a hearing Tuesday, county Senior Judge Chester Muroski said Jovanov’s requirement to register is put on hold until the outcome of an appeal determining those specific issues in the case. ..Source.. by Sheena DeLazio

Smith v Commonwealth

6-6-2013 Virginia:

Smith v Commonwealth

In this appeal, we consider whether the retroactive application of a 2008 amendment to Code § 9.1-902 resulted in contractual and constitutional violations by allegedly interfering with a 1999 plea agreement.

In February 1999, a grand jury in the City of Richmond indicted Jeremy Wade Smith for rape in violation of Code § 18.2-61. The indictment alleged that Smith, age twenty-two at the time, engaged in sexual activity with a fourteen-year-old girl, resulting in the birth of a child.

Smith entered into a plea agreement. He agreed to plead guilty to the reduced charge of carnal knowledge of a minor in violation of Code § 18.2-63, and the Commonwealth agreed to recommend a suspended sentence. The plea agreement contained an integration clause stating that it "contain[ed] the entire agreement between the parties, both oral and written." The agreement did not reference the registration requirements applicable to convicted sex offenders. The circuit court reluctantly accepted the plea agreement and sentenced Smith to ten years' incarceration with the entire term suspended. The Commonwealth reminded the court that Smith would be required to register with the Virginia Department of State Police ("State Police") as a sex offender. Smith's counsel indicated that he understood this requirement.

At the time of Smith's conviction, carnal knowledge of a minor was classified as a non-violent sex offense. Former Code § 19.2-298.1 (1995 & Supp. 1999). As a non-violent sex offender, Smith was required to register with the State Police annually for 10 years, after which he could petition for expungement.1 Former Code §§ 19.2-298.2, -298.3(A) (1995 & Supp. 1999).

In 2006, the federal government enacted the Adam Walsh Child Protection and Safety Act. See 42 U.S.C. § 16911 et seq. (2006). Title I of the Act, known as the Sex Offender Registration & Notification Act ("SORNA"), required Virginia to implement comprehensive sex offender registration standards.2 In 2008, the General Assembly amended Code § 9.1-902 (former Code § 19.2-298.1) to comply with SORNA. As a result, Smith's conviction for carnal knowledge of a minor was retroactively reclassified as a "sexually violent offense," and he became subject to more stringent registration requirements. 2008 Acts ch. 877. Particularly, Smith now must register every 90 days for the rest of his life, with no right to petition for expungement. Code §§ 9.1-903, -904.

In February 2010, Smith filed a complaint in the Circuit Court of the City of Richmond asserting that he should not be classified as a violent sex offender for purposes of the registration requirements. Smith argued that the reclassification of his offense violated his contractual and constitutional rights. He asserted that the reclassification (1) unilaterally altered the terms of his plea agreement, constituting a breach of contract; (2) deprived him of vested contractual rights without just compensation, constituting an unconstitutional taking; and (3) violated his procedural due process rights.

Smith and the Commonwealth filed cross-motions for summary judgment. Smith claimed that the sex offender registration requirements in effect when he entered the plea agreement were part of the agreement as if they had been explicitly incorporated therein. Thus, he contended that reclassifying his offense breached the plea agreement and deprived him of vested contractual rights without just compensation or due process of law. The Commonwealth responded that Smith had no contractual rights, vested or otherwise, regarding the sex offender registration requirements because the plea agreement contained an integration clause and did not reference the registration requirements.

The circuit court granted summary judgment in favor of the Commonwealth. It held that reclassifying Smith's conviction did not constitute a material breach of contract. In addition, it concluded that the registration requirements were not an integral part of Smith's inducement to enter into the plea agreement, which held no promise or vested right that the registration laws would not subsequently change. Because Smith had no vested contractual rights with respect to the registration requirements, the circuit court reasoned that there was no unconstitutional taking or procedural due process violation.3 Accordingly, the court dismissed Smith's claims with prejudice. This appeal followed.

... ... ...

For the same reason that the reclassification of Smith's conviction was not an unconstitutional taking, it also was not a violation of procedural due process. Due process analysis presupposes the existence of an enforceable right. We previously have held that convicted sex offenders have no liberty interest to be free from quarterly registration requirements. McCabe v. Commonwealth, 274 Va. 558, 565, 650 S.E.2d 508, 512 (2007). Likewise, they have no fundamental right to rely on the civil legislative scheme in existence at the time of pleading guilty. Id. at 565-66, 650 S.E.2d at 512-13. Because in this particular case Smith had no vested contractual rights with respect to the 1999 registration requirements, there was no procedural due process violation.6

CONCLUSION:

Since there were no contractual or constitutional violations resulting from the reclassification of Smith's conviction, the circuit court properly dismissed his petition for expungement and for a permanent injunction. Accordingly, we will affirm the judgment of the circuit court.

US v Windless

6-12-2013 Mississippi:

US v Windless

A federal district court may not rely on "bare arrest records" when sentencing a defendant. The district court believed that it could rely on those records when crafting conditions of supervised release. We disagree.

... ... ...

We VACATE imposition of the mental-health treatment condition and REMAND for resentencing. We REVERSE imposition of the "no direct or indirect contact" condition, which the district court may not impose (as currently phrased) on remand.

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New sentence ordered for sex offender who failed to register after coming to Miss. from Minn.

JACKSON, Miss. — A convicted sex offender has won a new sentencing hearing for failing to register in Mississippi because a federal judge erred in putting conditions on his supervised release, a federal appeals court panel has ruled.

Calvin Windless pleaded guilty in 2011 to failing to register as a sex offender in Mississippi. He was sentenced to two-and-a-half years in prison plus 10 years of supervised release.

Windless did not challenge the lengths of the prison sentence and supervised release. He argued the conditions put on his supervised release were unreasonable.

A three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals earlier this month agreed with Windless.

Court records show Windless was convicted in 1993 in Cook County, Ill. Windless, then 15, kidnapped a 7-year-old girl and twice forced her to perform oral sex. He was convicted of aggravated kidnapping and two counts of aggravated criminal sexual assault. He was paroled in 1997 and, after a brief return to prison, was released finally in 1999.

At some point after his release, Windless moved to Minnesota, where he was convicted of failing to register in 2008. Court records show he maintained his registration until he failed to notify Minnesota authorities when he moved to Belzoni, Miss., in 2010.

Windless was arrested by U.S. marshals on a warrant from Minnesota and was indicted when he admitted he had not registered in Mississippi. He pleaded guilty in October of 2011 to failing to register and was sentenced in April 2012 in Aberdeen, Miss.

Windless argued failing to register was not a sex crime and conditions on supervised release for one convicted of a sex crime should not apply to him.

U.S. District Judge Sharion Aycock specified Windless could not have direct or indirect contact with anyone younger than 18 unless accompanied and supervised by an adult who has been approved in advance by his probation officer.

"In essence, Mr. Windless could not leave the confines of his home without violating the terms of his supervised release," his attorneys argued in court documents.

Aycock also ordered Windless to undergo mental health treatment. Windless' attorneys argued he would have to live in Mississippi forever because no other state would want to have to provide mental health treatment for him.

Prosecutors said when the judge considered Windless' crime, ongoing criminal history and failure to register, the special conditions on his release "were necessary and did not constitute an unnecessary deprivation of appellant's liberty."

The 5th Circuit panel, in a ruling written by Judge Patrick Higginbotham, threw out the prison term and conditions tied to supervised release.

Higginbotham said the restrictions were overly broad and, for example, would prohibit him from going to a grocery store unaccompanied.

"Circumstances may, of course, permit a sentencing court to limit an offender's access to places where children are likely to be unsupervised or poorly supervised. It may be reasonable to bar an offender from initiating unsupervised or poorly supervised contact with others' children and reasonable to require him to report contact that children initiate," Higginbotham wrote.

"But to forbid all 'indirect' contact works a serious restriction on liberty, making a trip to the grocery store or a place of worship a trip that may end in imprisonment via revocation sentence," the judge wrote. ..Source.. by JACK ELLIOTT JR

US v Myers

12-9-2008 Florida:

US v Myers
591 F.Supp.2d 1312 (2008)

Unfortunately Myers was overturned on appeal see US v Myers (584 F.3d 1349 (2009)) full details below.

And also: US v Powers
544 F.Supp.2d 1331 (2008)

Unfortunately Powers was overturned on appeal see US v Powers (584 F.3d 1349 (2009)) see link.

THIS MATTER is before the Court upon Defendant Edward Myers's Motion To Dismiss Indictment (DE 18). The Court has carefully reviewed said Motion and the entire court file and is otherwise fully advised in the premises.

Defendant Edward Myers is charged in a one-count Indictment (DE 7) with failure to comply with the registration requirements of the Sex Offender Registration and Notification Act, 42 U.S.C. §§ 16901, et seq. & 18 U.S.C. § 2250 (2006) (hereinafter "SORNA"). He seeks to dismiss the Indictment on several grounds, the most compelling of which is that both § 2250 and the registration requirements found at § 16913 exceed Congress's Commerce Clause power and are therefore unconstitutional.1

This Order centers upon the constitutionality of two statutes within the Adam Walsh Act. The thrust of the discussion centers on Congress's Commerce Clause power, where the intricacies of the law are divorced from any value judgment as to whether and how society should protect itself from sex offenders. Sex offenders have undermined the decency once assumed in our fellow man and made us think twice before sending our children and grandchildren outside for a day of carefree play; they have paralyzed our families with fear. The crimes the Adam Walsh Act is meant to prevent are among the most heinous anyone can imagine. To that end, no lawful measure is too great and few punishments are too severe to protect society from sex offenders. While this sentiment reflects the undersigned's personal feelings on the matter, it does not alter Congress's inability to bring about a manifold good through means it has been denied by the Founding Fathers. See Keller v. United States,213 U.S. 138, 144, 29 S.Ct. 470, 53 L.Ed. 737 (1909).

... ... ...

With statutes like those at issue here, Congress's desire to aid in the protection of society against sexual predators is understandable and laudable. However, "the powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 175, 2 L.Ed. 60 (1803). Specifically, the grant of power made under the Commerce Clause is limited. Lopez, 514 U.S. at 552-553, 115 S.Ct. 1624 (citing Gibbons v. Ogden, 22 U.S. (9 Wheat.) at 189-95).

Therefore, the statutes challenged herein cannot be upheld. Section 16913 transgresses entirely the limits set on Congress by the Commerce Clause. It cannot be defended except by adulteration of the text of the Constitution and controlling caselaw. Section 2250 also exceeds that grant of power made to Congress under the Commerce Clause. It is in no way a regulation of persons in interstate commerce but an exertion of a general police power through an illusory and impermissible jurisdictional nexus. Thus, the Court declares that § 16913 is unconstitutional in that Congress lacks the power to enact the same under the Commerce Clause. Because an unconstitutional law is no law at all, Defendant Edward Myers shall go hence without day.

Accordingly, after due consideration, it is

ORDERED AND ADJUDGED as follows:

1. The Court hereby declares 42 U.S.C. § 16913 and 18 U.S.C. § 2250 as unconstitutional for the reasons expressed above;

2. Defendant Edward Myers's Motion To Dismiss Indictment (DE 17) be and the same is hereby GRANTED; and

3. That Defendant Edward Myers be discharged to go hence without day for return and exonerated of bond, if any, as to the Indictment hereinabove specified.

DONE AND ORDERED.

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On Appeal: US v Myers
The Government appeals the district court's order dismissing an indictment that charged Edward Myers with traveling in interstate commerce and failing to register as sex offender as required by the Sex Offender Registration and Notification Act (SORNA), in violation of 18 U.S.C. § 2250(a). The district court concluded that both § 2250 and SORNA's sex-offender registration requirements found in 42 U.S.C. § 16913 exceeded Congress's authority under the Commerce Clause. United States v. Myers,591 F.Supp.2d 1312, 1316 (S.D.Fla.2008).

We recently upheld against a Commerce Clause challenge both the failure-to-register offense in 18 U.S.C. § 2250(a) and the registration requirements in 42 U.S.C. § 16913. See United States v. Ambert,561 F.3d 1202, 1210-12 (11th Cir.2009). Myers concedes that the district court's order dismissing the indictment is contrary to Ambert but challenges the reasoning of that panel's decision on appeal. We are bound by that decision unless overruled by the Supreme Court or this Court sitting en banc. See United States v. Vega-Castillo,540 F.3d 1235, 1236 (11th Cir.2008).1 Accordingly, we vacate the district court's order and remand for reinstatement of the indictment. See United States v. Powers,562 F.3d 1342, 1344 (11th Cir.2009).

VACATED AND REMANDED.

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.

... ... ...

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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US v Hatcher

3-13-2009 Virginia:

US v Hatcher
560 F.3d 222 (2009)

In these consolidated appeals, William T. Hatcher, Richard Dean Hinen, Gregory V. Roberts, and John Edward Sawn appeal their convictions. Each of the Appellants was convicted of knowingly failing to register or update their registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a) (2006). The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment. However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA's registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.

I.
The Appellants were convicted of sex offenses in state courts between 1993 and 2001. All of the Appellants had finished serving the sentences imposed on them for those offenses prior to July 27, 2006, the enactment date of SORNA. As a result of their convictions, the Appellants were required to register under the sex offender registration systems of their respective states, and all of the Appellants initially complied with those registration requirements. At various times between July 27, 2006, and February 28, 2007, the Appellants moved to other states and failed to comply with SORNA's continuing registration requirements.

The Appellants were indicted on one count of traveling in interstate or foreign commerce and knowingly failing to register or update a sex offender registration as required by SORNA, in violation of 18 U.S.C. § 2250(a) (2006). Each of the Appellants was indicted after February 28, 2007.1 The Appellants filed motions to dismiss their respective indictments, but those motions were denied by the district courts.2 Hatcher, Roberts, and Sawn each entered a conditional guilty plea, preserving the right to appeal the denial of the motion to dismiss. Hinen was convicted in a jury trial.

... ... ...

It is important to note that the decision reached today is quite narrow, for we do not hold that SORNA's registration requirements do not apply to persons who were convicted of sex offenses prior to SORNA's enactment date. Rather, we hold only that SORNA's registration requirements did not apply to pre-SORNA offenders until the Attorney General issued the interim rule on February 28, 2007.

IV.
Because the Appellants' indictments were based on conduct that pre-dated the Attorney General's interim rule specifying that SORNA's registration requirements applied to pre-SORNA offenders, we reverse the Appellants' convictions and vacate the sentences imposed in connection with those convictions.

REVERSED AND VACATED

In the Matter of McClain

4-16-2013 North Carolina:

In the Matter of McClain
Nos. COA12-1258.

Petitioner Kevin McClain pled guilty to the felony offense of indecent liberties with a child on 29 January 2001. He was sentenced to fifteen to eighteen months imprisonment, thirty-six months of supervised probation, and was required to register as a sex offender under the North Carolina Sex Offender and Public Protection Registration Program, N.C.G.S. §§ 14-208.7-19A, which he did on 7 August 2001.

After ten years, McClain petitioned the Superior Court of New Hanover County to be removed from the sex offender registry. Petitioner admitted at the subsequent hearing on 13 June 2012 that during the past ten years he was "convicted of a felony for failure to comply with obligations under the sex offender registry law and served a period of imprisonment," and as a result, he did not have a "clean record." The court denied McClain's petition for removal from the registry on the grounds that the requested relief did not comply with federal standards as outlined in N.C.G.S. § 14-208.12A(a1) (2).

On appeal, petitioner McClain contends it was error for the trial court to deny his petition for removal from the sex offender registry on the basis that it did not comply with N.C.G.S. § 14-208.12A(a1) (2), because the incorporation of the Adam Walsh Child Protection and Safety Act of 2006 ("the Adam Walsh Act") and the federal Sex Offender Registration and Notification Act ("SORNA") into N.C.G.S. § 14-208.12A(a1) (2) is an unconstitutional delegation of legislative authority under the North Carolina Constitution.

Although another panel of this Court recently decided In re Hamilton, ___ N.C. App. ___, 725 S.E.2d 393 (2012) (incorporating and applying the requirements of the Adam Walsh Act under N.C.G.S. § 14-208.12A(a1) (2)), both parties agree that the constitutionality of the incorporation of those federal standards was not raised in that case. Therefore, because the instant case presents a question distinct from that at issue in In re Hamilton, we now consider petitioner's constitutional argument. Cf. In re Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 36-37 (1989) (holding that a court is bound by the decision of prior panels of the same court on the same issue). After careful consideration, we affirm the trial court's order.

... ... ...

Petitioner first registered pursuant to N.C.G.S. § 14-208.7 on 7 August 2001. He petitioned the trial court for removal on 29 May 2012, more than ten years later. Based on evidence at the hearing, the trial court found that evidence supported that petitioner had satisfied all the requirements for removal except the requirement that the relief he requested complied with the provisions of the federal Jacob Wetterling Act, as amended, and "any other federal standards applicable to the termination of [the] registration requirement," because petitioner admitted at trial that he did not have a "clean record." Based on these findings of fact, the court correctly concluded that petitioner is not entitled to the relief requested, and must continue to maintain registration.

Moreover, we must also note that even if petitioner's argument that the provision incorporating the Adam Walsh Act was unconstitutional as an improper delegation of legislative authority had merit, the trial court could still have exercised its discretion to deny petitioner's request to terminate his registration requirement. See In re Hamilton, ___ N.C. App. at ___, 725 S.E.2d at 399 (holding that "after making findings of fact" the trial court is "free to employ its discretion in reaching its conclusion of law whether [p]etitioner is entitled to the relief he requests" because N.C.G.S. § 14-208.12A(a1) states that the trial court "may" grant petitioner relief if the terms of the statute are met). The trial court's order denying petitioner McClain's petition is affirmed. Affirmed.

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eAdvocate notes:

The NC statute in question:

§ 14‑208.12A. Request for termination of registration requirement. (a1)(2) The requested relief complies with the provisions of the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State, and

The more I think about this case, the more I become concerned that the court even mentioned SORNA. Here is why. The NC law basically trys to draw in ANY FEDERAL law which concerns "Petitioning for Removal from the Registry (PGOR)." OK, at the time NC enacted its law (before SORNA was enacted) to permit folks to PGOR, SORNA did not exist, and that can be argued.

Further, SORNA after enactment has NO PGOR provision, so what were NC Lawmakers thinking; no one knows, and the court can only speculate, the statute doesn't mention one word about SORNA. Now, as to "Clean Record," if that were NC lawmaker's thinking, that is not spelled out in the NC law either. Again, at best the court can only speculate, lawmakers were thinking about the, yet to be enacted, SORNA definition.

The entire NC statute is about "Petitioning to get off the registry (PGOR)," and I'm sure lawmakers could spell out what conditions a petitioner has to meet to be granted relief, they didn't and that leaves a court to do one of two things:

• 1) Speculate as to what the NC Legislature meant without facts to support speculation; or,
• 2) Substitute the courts thinking as to what conditions a PGOR petitioner must meet to receive relief, and base that on a retroactive erroneous interpretation of SORNA.

The court in McClain did #2 and that is illegal for it to do; courts cannot substitute its thinking for that of the legislature. I totally disagree with the McClain court decision, but I am but a tiny voice.

Belief here, this can be appealed, hopefully lawyers will take control and do so.

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See also: The Wetterling Finding: Not an Unconstitutional Delegation

The court of appeals recently decided another case on petitions to terminate sex offender registration. Once again, the decision turned on what I have called the “Wetterling finding”—the rule in G.S. 14-208.12A(a1)(2) that a judge may not remove a person from the registry if doing so would not comply with “the federal Jacob Wetterling Act, as amended, and any other federal standards applicable to the termination of a registration requirement or required to be met as a condition for the receipt of federal funds by the State.” That law generates some difficult questions about the interplay between state and federal law, which I discussed here and here. ..continued.. by Jamie Markham

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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.

Doe v DPSCS

Maryland's Ct of Appeals is it's highest ct. and equates to blog's State Sup ct. Hence above labeling.

6-30-2014
Doe II v DPSCS

In Doe v. Department of Public Safety & Correctional Services, 430 Md. 535, 62 A.3d 123 (2013) ("Doe I"), we addressed the Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2013 Cum.Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter all section references to the Criminal Procedure Article of the Maryland Code are identified as "Crim. Proc. §") and held that the retroactive application of the provisions we deemed punitive violated the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights. This Court's plurality opinion in Doe I specifically excluded any analysis of the federal Sex Offender Registration and Notification Act ("SORNA"), Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250). We stated, "[a]s [Doe's] federal obligations are not before us, we need not, and do not, address the issue of whether they require him to independently register." Doe I, 430 Md. at 544, 62 A.3d at 128.

In the instant appeal,1 however, the State2 asks us to consider sex offenders' "federal obligations" and whether a circuit court has the authority to direct the State to remove sex offender registration information in light of the provisions of SORNA specifically directing sex offenders to register in the state in which they reside, work, or attend school. We shall hold that, notwithstanding the registration obligations placed directly on individuals by SORNA, circuit courts have the authority to direct the State to remove sex offender registration information from Maryland's sex offender registry when the inclusion of such information is unconstitutional as articulated in Doe I.

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3-4-2013 Maryland:
Doe I v DPSCS
No. 125, September Term, 2011.

The Maryland sex offender registration statute, Maryland Code (2001, 2008 Repl. Vol., 2012 Cum. Supp.), § 11-701 et seq. of the Criminal Procedure Article (hereinafter a ll section references to the Criminal Proced ure Article of the Maryland Code are identified as “C.P. §”), requires persons convicted of certain sex offenses to register1 with “the person’s supervising authority.”2

We are asked to determine whether, under this statute, the State can legally require Petitioner to register.

Petitioner argues that requiring him to register as a sex offender:

• (1) violates Petitioner’s right to be free from ex post facto laws purs uant to both the federal Constitution and the Maryland Declaration of Rights, and to be free from ex post facto restrictions pursuant to theMaryland Declaration of Rights;
• (2) violates Petitioner’s due process rights pursuant to both the federal Constitution and the Maryland Declaration of Rights; and
• (3) violates the plea agreement entered into when he pled gu ilty to the underlying crime.

... ... ...

When Petitioner committed his sex crime during the 1983-84 school year he did not face registration under the statute as a consequence for his crime. Registration was imposed, over twenty years later in 2009, under the sex offender registration statute as a direct consequence of Petitioner’s commission and conviction for his sex crime.

The application of the statute has essentially the same effect upon Petitioner’s life as placing him on probation and imposing the punishment of shaming for life, and is, thus, tantamount to imposing an additional sanction for Petitioner’s crime.

Therefore, we conclude that the imposition of the registration requirement up on Petitioner, as the result of amendments passed 25 years a fter Petitioner’s crime, to a statute passed over a decade after Petitioner’s commission of a crime is in violation of the ex post facto prohibition contained in Article 17 of the Maryland Declaration of Rights.

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Doe v DPSCS copy from state.

Lower court case being appealed: MD Special Court of Appeals