USA -v- Collins

12-9-2014 West Virginia:

USA -v- Collins

Dwaine Allen Collins was convicted of knowingly failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). The district court sentenced Collins to 30 months’ imprisonment and ten years of supervised release. On this direct appeal, Collins contests his conviction primarily on the grounds that the government failed to prove an essential element of a SORNA violation: that he knew he had an obligation to register.

In support, he points to comments made by a state court judge in a separate proceeding, which in Collins’s view suggest that his obligation to register had expired. We agree with the district court, however, that the state judge appeared to be giving advice rather than a binding legal opinion. Moreover, there is substantial evidence in the record to support the district court’s conclusion that Collins knowingly avoided an obligation to register as a sex offender. We thus find Collins’s claim unpersuasive and affirm his conviction.

Collins also appeals his sentence. We find his 30-month term of imprisonment, which is within the applicable Guidelines range, to be reasonable and thus affirm the district court’s sentence in that respect. As to the term of supervised release, however, the United States Sentencing Commission recently issued a clarifying amendment stating that a failure to register under SORNA is not a “sex offense” for the purposes of the Guidelines. Consequently, we vacate the supervised release portion of Collins’s sentence and remand for further proceedings.

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For the reasons provided above, we affirm Collins’s conviction and his term of imprisonment, and remand for further proceedings consistent with this opinion as to his term of supervised release.

State Police wrongly arrested man, court says

3-24-2012 West Virginia:

The State Police did not have the right to arrest a Tyler County man for failure to re-register as a sex offender upon his release from jail in 2010, the West Virginia Court of Appeals said Thursday.

Sex offenders are only required to re-register their information following a conviction -- not after an arrest, the Appeals Court ruled.

On Dec. 27, 2010, the Tyler County Circuit Court dismissed a failure to register as a sex offender charge against Timothy John Judge, 30. Tyler County Prosecuting Attorney D. Luke Furbee then appealed the dismissal.

On Sept. 19, 2002, Judge was convicted of a third-degree sexual abuse charge and severed 18 months of probation, according to the opinion.

Judge was in compliance with the sex offender registry and updated his information just weeks before he was arrested on May 7, 2010 for a charge of accessory after the fact to breaking and entering. After a one-night stay in the North Central Regional Jail, Judge returned to his previously registered home, according to the opinion.

Police arrested Judge because he did not complete a new sex offender registration form.

According to the State Police's form, an offender must re-register with three days "of release from an institution."

Furbee said the sex offender law wasn't clear on what is required of an offender after an arrest.

"The interpretation that the State Police was using ... were being advised if they had been committed to jail during a period of registration or any other institution involuntarily, they were to essentially renew their registration within three business day of their release," he said.

The Appeals Court ruled, "the duty to register as a sex offender arises upon a conviction of an offense.

"In this case, it was alleged the defense did not follow those directions and the problem simply was 'did that amount to a criminal violation or not?'" Furbee said.

The state acknowledged "there is an apparent gap or disconnect in the statutory language of [the sex offender law] and the State Police's rule and forms," according to the opinion.

The Appeals Court said all State Police forms that "include language instructing sex offenders of their obligation to re-register upon each release from incarceration should be rewritten to remove such language."

"It was an arguable issue and the court apparently agreed that it was by accepting this appeal for full argument. The court answered that question in the negative," Furbee said. "Now we know the right answer, and we have to have certainty if we're going to be asked to prosecute these cases."

State Police Spokesman Sgt. Michael Baylous declined to comment. ..Source.. by Travis Crum

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Judge Gets 1-5 Years For Registration Violation

10-17-2012

Timothy John Judge, 31, of Box 132, Friendly, was sentenced Tuesday in Wetzel County Circuit Court to one to five years in the West Virginia State Penitentiary for Men.

He had pleaded guilty on Aug. 13 to failing to register as a sex offender or provide a change in information to the West Virginia State Police in Wetzel County by knowingly failing or refusing to report his move to a new address.

Both sides of counsel had their chance to give last words to the Judge Mark A. Karl before he went through with sentencing. Jeremiah Gardner, Judge's defense, reminded Karl of a letter written by Judge's employer in his favor. Gardner also reported that Judge is gainfully employed and is paying child support. Gardner stated that the error made by Judge was a technical one, in that he bought a cell phone and forgot to report his new cell phone number.

Prosecuting Attorney Timothy Haught reminded the court of Judge's history in both Tyler and Pleasants counties, that this was not his first offense of a similar nature.

Judge Karl agreed and thus, sentenced Judge to one to five years. He admonished Judge, telling him, "You've had opportunities; this shouldn't come as a shock to you."

Judge can file a Rule 35 motion for a reduction in sentence after four months in prison. Also, the state previously agreed to drop count two, knowingly failing or refusing to report a new vehicle or change in vehicle, per the terms of Judge's plea agreement. ..Source.. by LAUREN RIGGS

USA -v- Smith

6-13-2007 West Virginia:

USA -v- Smith
528 F.Supp.2d 615 (2007)


On November 16, 1995, Mr. Smith was convicted of three counts of second degree sexual assault in violation of section 61-8B-4 of the West Virginia Code. On July 31, 1996, he was sentenced to three concurrent terms of not less than ten nor more than twenty-five years imprisonment. At the time of his release on parole on August 8, 2005, he was given notice of his obligation to register as a sex offender under West Virginia law.

The defendant traveled to Florida in July 2006. On July 27, 2006 President Bush signed into law the Adam Walsh Child Protection and Safety Act, which contains the Sex Offender Registration and Notification Act ("SORNA"). Later, the defendant traveled to Illinois. Sometime prior to November 6, 2006, the defendant returned to Florida. He did not register as a sex offender in Illinois or Florida, in violation of West Virginia law. He was arrested in Florida as a fugitive on November 24, 2006. The underlying charges were violations of his state parole and the West Virginia offense of failing to register as a sex offender. On April 24, 2007, a federal grand jury sitting in Huntington, West Virginia, returned a one-count indictment charging the defendant with a violation of 18 U.S.C. § 2250 on November 24, 2006 by "knowingly fail [ing] to register and update his registration as required by the Sex Offender Registration and Notification Act." On May 24, 2007, the defendant filed a motion in this court to dismiss the indictment.

In his motion to dismiss, the defendant challenges the application and constitutionality of 18 U.S.C. § 2250. He argues that SORNA was not applicable to him at the time the indictment alleges he failed to register as a sex offender. Alternatively, he argues that the statute is unconstitutional in that it violates the nondelegation doctrine, the due process clause, and the commerce clause.

I FIND that the statute as enacted in July 2006 was not retroactive on its face. I further FIND that Congress assigned the question of retroactivity under the statute to the Attorney General. The Attorney General did not promulgate any regulations with respect to retroactivity until February 2007. The statute, the Attorney General’s interim rule, and the Guidelines all support my conclusion that defendant was not obligated to register under the statute as enacted in July 2006. Accordingly, I GRANT the defendant’s motion to dismiss. I find it unnecessary to address the constitutional questions raised by the defendant. Article: Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!

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