U.S. v. Yelloweagle

• Decision Date: 02 May 2011
• Docket Number: No. 09–1247.,09–1247.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Alden YELLOWEAGLE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

643 F.3d 1275

UNITED STATES of America, Plaintiff–Appellee,

v.Alden YELLOWEAGLE, Defendant–Appellant.

No. 09–1247.

United States Court of Appeals, Tenth Circuit.

May 2, 2011.

Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Denver, CO, for Defendant–Appellant.Michael Conrad Johnson, Assistant United States Attorney (David M. Gaouette, United States Attorney, and Hayley Elizabeth Reynolds, Assistant United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.Before TACHA, KELLY, and HOLMES, Circuit Judges.HOLMES, Circuit Judge.

Congress has enacted an elaborate system of registration and reporting requirements for individuals convicted of sex offenses. The law requires all sex offenders to register, regardless of whether their convictions are based on federal or state law. For those sex offenders whose convictions are based on federal law, an enforcement provision provides that the failure to register or update a registration constitutes a new federal crime.

Alden Yelloweagle, the appellant here, was previously convicted of a federal sex offense. When he failed to register as required, he was indicted by federal authorities under the enforcement provision. Mr. Yelloweagle moved to dismiss the indictment for various reasons. Two of the reasons he offered are relevant here. First, he contended that no provision of the Constitution authorizes Congress to require all sex offenders to register. Accordingly, Mr. Yelloweagle argued, he could not be punished for failing to comply with the requirement. Second, even if the registration requirement was valid, Mr. Yelloweagle contended that the criminal enforcement provision also lacked a jurisdictional basis and therefore was unconstitutional. The district court denied the motion to dismiss.

In his opening brief on appeal, Mr. Yelloweagle makes no mention of the first argument regarding the registration requirement; he focuses only on the claim that Congress lacks the power to criminalize the failure to register under the enforcement provision. The government argues that this tactical shift dooms Mr. Yelloweagle's appeal, for if the registration requirement is presumed to be constitutional, then the criminal provision is valid under the Necessary and Proper Clause. See U.S. Const. art. I, § 8, cl. 18. We agree.

More specifically, we conclude that Mr. Yelloweagle has abandoned on appeal his constitutional challenge to the registration requirement. When we assume that the registration requirement is constitutional, it follows that the criminal statute enforcing compliance with that requirement is a valid exercise of congressional authority under the Necessary and Proper Clause. For this reason, we AFFIRM the judgment of the district court.

I. BACKGROUNDA. The Sex Offender Registration and Enforcement Regime

In 2006, based on its conclusion that existing sex-offender registration and reporting requirements were too readily circumvented, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”), Pub.L. No. 109–248, 120 Stat. 587 (codified in scattered sections of 8, 10, 18, 21, 28, and 42 U.S.C.). See United States v. Gould, 568 F.3d 459, 473–74 (4th Cir.2009) (discussing Congressional findings), cert. denied, ––– U.S. ––––, 130 S.Ct. 1686, 176 L.Ed.2d 186 (2010). The Act sought “to protect the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders.” 42 U.S.C. § 16901.

Title I of the Adam Walsh Act is called the Sex Offender Registration and Notification Act (“SORNA”). “SORNA was enacted to keep track of sex offenders.” United States v. George, 625 F.3d 1124, 1129 (9th Cir.2010). Among other things, SORNA requires each state to “maintain a jurisdiction-wide sex offender registry,” 42 U.S.C. § 16912(a), and to “provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply” with the Act's registration requirements, id. § 16913(e). States are also required to publicize certain information about registered sex offenders, id. § 16918, and to share that information with federal and other state law enforcement authorities, id. § 16921. States failing to establish a registration and notification system in accordance with SORNA risk losing federal funding. See id. § 16925; see also United States v. Shenandoah, 595 F.3d 151, 155–56 (3d Cir.) (discussing various provisions of SORNA), cert. denied, ––– U.S. ––––, 130 S.Ct. 3433, 177 L.Ed.2d 341 (2010). All states have enacted registration regimes. See Carr v. United States, ––– U.S. ––––, 130 S.Ct. 2229, 2239 n. 7, 176 L.Ed.2d 1152 (2010) (citing Smith v. Doe, 538 U.S. 84, 90, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)).

In addition to requiring states to establish registration regimes, SORNA imposes a separate federal registration requirement. It provides:

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.

42 U.S.C. § 16913(a). SORNA defines “sex offender” as “an individual who was convicted of a sex offense.” Id. § 16911(1). The Act lists certain categories of criminal convictions that qualify as sex offenses, and makes clear that the registration requirement is applicable to all sex offenders, whether their convictions are based on federal or state law. See id. § 16911(5)-(6).

In addition to the requirement that states enact criminal penalties for the failure to register, SORNA contains its own criminal provision, 18 U.S.C. § 2250(a), which provides that an individual who fails to register under § 16913 is guilty of an independent federal offense. Unlike § 16913, which applies to all sex offenders regardless of whether their convictions arise under federal or state law, § 2250(a) criminalizes the failure to register for only two classes of sex offenders. It provides:

(a) In General.—Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; 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). Thus, § 2250(a) “imposes criminal liability on two categories of persons who fail to adhere to SORNA's registration requirements: any person who is a sex offender ‘by reason of a conviction under Federal law ...,’ § 2250(a)(2)(A), and any other person required to register under SORNA who ‘travels in interstate or foreign commerce ...,’ § 2250(a)(2)(B).” Carr, 130 S.Ct. at 2238. The only sex offenders not subject to § 2250(a) are those with state convictions who never leave the state in which they were convicted. See id.; accord United States v. Guzman, 591 F.3d 83, 90 (2d Cir.) (noting that “a sex offender whose underlying conviction was obtained pursuant to state law and who never crosses state lines ... cannot be criminally liable for failure to comply with SORNA”), cert. denied, ––– U.S. ––––, 130 S.Ct. 3487, 177 L.Ed.2d 1080 (2010).B. Facts of Mr. Yelloweagle's Case

In 2005, Mr. Yelloweagle pleaded guilty in the United States District Court for the District of Colorado to abusive sexual conduct in Indian country, in violation of 18 U.S.C. §§ 2244(a)(2) and 1153. He was sentenced to a term of imprisonment of a year and a day, to be followed by a one-year term of supervised release. One of the conditions of Mr. Yelloweagle's supervised release was that he “register with the state sex offender registration agency in the state where [he] resides, works, or is a student.” R., Vol. 1, at 105 (J. in Crim. Case, filed Mar. 30, 2005). After his sentencing, but before the expiration of his term of supervised release, Congress enacted SORNA.

Mr. Yelloweagle maintained his registration information in Colorado until May 13, 2007, when he missed a scheduled registration update. He eventually turned up in Oklahoma, where he was implicated in another sex crime. Federal authorities in Colorado subsequently indicted him for violating 18 U.S.C. § 2250(a)(2)(A).¹

Mr. Yelloweagle moved to dismiss the indictment, contending, inter alia, that Congress lacked the power under the Constitution to enact either the registration requirement, § 16913, or the enforcement provision, § 2250(a)(2)(A). First, as to the registration requirement, Mr. Yelloweagle asserted that § 16913 was invalid because it purported to require registration of all sex offenders, regardless of whether they had crossed state lines. He argued that Congress lacked the authority to impose such a requirement under the Commerce Clause, see U.S. Const. art. I, § 8, cl. 3 (“The Congress shall have Power ... To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”), or under any other provision of the Constitution. Because registration under § 16913 is an element of § 2250(a), Mr. Yelloweagle reasoned that if the registration requirement was invalid, then his indictment must be dismissed. Second, even if § 16913 passed constitutional muster, Mr. Yelloweagle argued that § 2250(a)(2)(A) itself was invalid...