US v Adam Ray Fernandez

2-28-2012 Arkansas:

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

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

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

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

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

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

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

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

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

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

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

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

US v Baccam

4-28-2009 Arkansas:

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

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

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

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

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

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

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

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

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

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

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

Accordingly, we affirm the judgment of the district court.