U.S. v. Whaley

• Decision Date: 21 July 2009
• Docket Number: No. 08-10951.,08-10951.
• Citation: 577 F.3d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WHALEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

577 F.3d 254

UNITED STATES of America, Plaintiff-Appellee, v. Robert Lee WHALEY, Defendant-Appellant.

No. 08-10951.

United States Court of Appeals, Fifth Circuit.

July 21, 2009.

Richard A. Friedman (argued), U.S. Dept. of Justice, Crim. Div., Washington, DC, Steven M. Sucsy, Asst. U.S. Atty., Lubbock, TX, for Plaintiff-Appellee.

Jason Douglas Hawkins (argued), Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, SMITH and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Defendant-Appellant Robert Lee Whaley appeals his conviction under 18 U.S.C. § 2250(a) for failure to register in accordance with the Sex Offender Registration and Notification Act ("SORNA"). We affirm.

I

Whaley stipulated to the relevant facts as part of a plea agreement. In 1999, Whaley was convicted, under Kansas law, of aggravated sexual battery in Marshall County, Kansas, and sentenced to 57 months of imprisonment. Kansas law also required Whaley to register as a sex offender upon his release from prison, and he signed notices explaining his registration obligation in 1999 and 2003. Both notices informed Whaley, inter alia, that if he moved to another state, he was required to register in that state within ten days.

Whaley registered without incident through April 5, 2007. Sometime before June 11, 2007, he moved without leaving a forwarding address and did not update his registration. On March 5, 2008, Whaley was found in Texas, and he admitted to having moved from Kansas to Texas between April 2007 and March 2008 without registering as a sex offender in Texas or updating his registration in Kansas.

On March 12, 2008, Whaley was indicted on one count of violating 18 U.S.C. § 2250(a) by traveling in interstate commerce and knowingly failing to register and update a registration as required under SORNA. Whaley moved to dismiss the indictment on various constitutional grounds, and the district court denied the motion. Whaley then entered a conditional guilty plea, reserving the right to raise his constitutional challenges on appeal. Whaley was sentenced to 21 months' imprisonment followed by five years of supervised release. He timely filed a notice of appeal.

II

Whaley puts forth several constitutional challenges to his conviction. We review these challenges de novo. See United States v. Luna, 165 F.3d 316, 319 (5th Cir.1999).

SORNA was enacted July 27, 2006, more than three years after Whaley was released from prison in Kansas. It requires all sex offenders to "register, and keep the registration current, in each jurisdiction where the offender resides where the offender is an employee, and where the offender is a student." 42 U.S.C. § 16913(a). The rules for initial and updated registration are as follows:

(a) In general. A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register—

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 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. SORNA provides a federal criminal penalty for traveling in interstate commerce and failing to register or update a registration:

(a) In general—Whoever—(1) is required to register under the Sex Offender Registration and Notification Act ... (2)(B) travels in interstate or foreign commerce ...; and (3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act ... shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a). SORNA directs the Attorney General to "maintain a national database ... for each sex offender...." 42 U.S.C. § 16919(a). In addition, SORNA directs each state "to substantially implement this subchapter" or lose "10 percent of the funds that would otherwise be allocated" to the state under the Omnibus Crime Control and Safe Streets Act of 1968 for a given year. Id. § 16925(a). Among other things, implementation requires the states to: "maintain a jurisdiction-wide sex offender registry conforming to the requirements of [SORNA]," id. § 16912(a); "provide a criminal penalty" for a sex offender's failure to register, id. § 16913(e); and "immediately ... provide the information in the registry" about an offender who has registered or updated a registration to, among other entities, the Attorney General, local law enforcement agencies, and certain social service and volunteer organizations that work with children, id. § 16921(b).

III

A

We first consider Whaley's argument that the registration, 42 U.S.C. § 16913, and penalty, 18 U.S.C. § 2250, provisions of SORNA exceed Congress's authority under the Commerce Clause. The Commerce Clause of the U.S. Constitution gives Congress the power "[t]o regulate commerce with foreign nations, and among the several states, and with the Indian tribes." U.S. Const. art. I, § 8. The Supreme Court has identified three general categories of activity that Congress may regulate under the Commerce Clause:

First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.

United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (citations omitted); see also Gonzales v. Raich, 545 U.S. 1, 16-17, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005); United States v. Morrison, 529 U.S. 598, 608-09, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

Whaley asserts that the penalty provision can only be justified under the third Lopez prong as it does not regulate the channels of interstate commerce nor concern the regulation of persons or things in interstate commerce. We disagree. Because § 2250 applies only to those failing to register or update a registration after traveling in interstate commerce—in this case, Whaley traveled from Kansas to Texas—it falls squarely under the first Lopez prong. See United States v. Kung-Shou Ho, 311 F.3d 589, 597 (5th Cir.2002), cert. denied, 539 U.S. 914, 123 S.Ct. 2274, 156 L.Ed.2d 129 (2003) ("[The first Lopez] category includes the regulation of highways, railroads, air routes, navigable rivers, and telecommunications networks. The category also reaches the misuse of the channels of interstate commerce." (citations and quotation omitted)). As we have previously observed, "[i]t has long been held that Congress may forbid or punish the use of channels of interstate commerce `to promote immorality, dishonesty, or the spread of any evil or harm to the people of other states from the state of origin.'" United States v. Lankford, 196 F.3d 563, 571 (5th Cir.1999) (quoting Brooks v. United States, 267 U.S. 432, 436, 45 S.Ct. 345, 69 L.Ed. 699 (1925)); see Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) ("The authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question." (quotation omitted)); N. Am. Co. v. SEC, 327 U.S. 686, 705, 66 S.Ct. 785, 90 L.Ed. 945 (1946) ("Congress may impose relevant conditions and requirements on those who use the channels of interstate commerce in order that those channels will not become the means of promoting or spreading evil, whether of a physical, moral or economic nature."). Through § 2250, Congress has forbidden sex offenders from using the channels of interstate commerce to evade their registration requirements, and we have no doubt that it was within its power under the Commerce Clause to do so.¹

Whaley similarly asserts that § 16913 can only be justified under the third Lopez prong—and indeed, § 16913 plainly applies to sex offenders not in interstate commerce. In making this argument, however, Whaley treats § 16913 as if it were a stand alone statute. We think that it must instead be analyzed in connection with § 2250. Both provisions were enacted as part of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587, and are clearly complementary: without § 2250, § 16913 lacks federal criminal enforcement,...