668 F.3d 1211 (10th Cir. 2011), 10-1095, United States v. Carel

Docket Nº:10-1095.
Citation:668 F.3d 1211
Opinion Judge:MATHESON, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Franklin CAREL, Jr., Defendant-Appellant.
Attorney:Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, CO, appearing for Appellant. Michael C. Johnson, Assistant United States Attorney (John F. Walsh, Un...
Judge Panel:Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.
Case Date:December 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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668 F.3d 1211 (10th Cir. 2011)

UNITED STATES of America, Plaintiff-Appellee,

v.

Franklin CAREL, Jr., Defendant-Appellant.

No. 10-1095.

United States Court of Appeals, Tenth Circuit.

December 30, 2011

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Jill M. Wichlens, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, CO, appearing for Appellant.

Michael C. Johnson, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Colorado, Denver, CO, appearing for Appellee.

Before GORSUCH, ANDERSON, and MATHESON, Circuit Judges.

MATHESON, Circuit Judge.

In 2010, Defendant-Appellant Franklin Carel, Jr., a federally adjudicated sex offender, was convicted of knowingly failing to update his sex offender registration as required by the Sex Offender Registration and Notification Act (" SORNA" ). On appeal, he contends that SORNA's sex offender registration provision, 42 U.S.C. § 16913, is unconstitutional. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we hold that as applied to Mr. Carel— a federal sex offender on supervised release— § 16913 is a constitutional exercise of Congress's authority under the Necessary and Proper Clause.

I. BACKGROUND

A. Substantive Background

1. SORNA: History and Framework

" In the years prior to SORNA's enactment, the Nation had been shocked by cases in which children had been raped and murdered by persons who, unbeknownst to their neighbors or the police, were convicted sex offenders." Carr v. United States, __ U.S. __, 130 S.Ct. 2229, 2249, 176 L.Ed.2d 1152 (2010) (Alito, J., dissenting). In response to these events, " Congress and state legislatures passed [several] laws requiring the registration of sex offenders." Id. One such law was the federal Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (the " Wetterling

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Act" ), Pub. L. 103-322, Tit. XVII, § 170101(c), 108 Stat. 2041.1

Despite federal and state efforts to monitor convicted sex offenders, approximately 100,000 sex offenders— nearly one-fifth of the United States' total sex offender population— remained unregistered in 2005. See H.R.Rep. No. 109-218, pt. 1, p. 26 (2005). In July 2006, Congress enacted the Adam Walsh Child Protection and Safety Act (the " Walsh Act" ), Pub. L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). Title I of the Walsh Act established SORNA. See id.

" SORNA was enacted to succeed and enhance the registration requirements of the Wetterling Act," United States v. Begay, 622 F.3d 1187, 1190 (9th Cir.2010), and to eliminate " a dangerous gap in the then-existing sex-offender-registration laws." Carr, 130 S.Ct. at 2249 (Alito, J., dissenting); see also United States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir.2011) (noting that SORNA was enacted based on Congress's " conclusion that existing sex offender registration and reporting requirements were too readily circumvented" ).

The declared purpose of SORNA is " to protect the public from sex offenders and offenders against children ... [by] establish[ing] a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. To accomplish this objective, SORNA established a national database, see 42 U.S.C. § 16919(a), " [i]ntended as a means of preventing sex offenders from evading their registration requirements by crossing state lines." United States v. Lawrance, 548 F.3d 1329, 1334 (10th Cir.2008); see also Carr, 130 S.Ct. at 2240 (noting that SORNA was " enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks" ).

SORNA includes civil and criminal components. Its civil component— 42 U.S.C. § 16913— states: " 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." SORNA defines the term " sex offender" as " an individual who was convicted of a sex offense." Id. at 16911(1). Section 16913 " requires all sex offenders to register [and to keep their registrations current], regardless of whether their convictions are based on federal or state law." Yelloweagle, 643 F.3d at 1276; see also Begay, 622 F.3d at 1187 (noting that § 16913 imposes " two separate obligations— an obligation to register and an obligation to keep the registration current" ). To ensure such compliance, 18 U.S.C. § 3583(d) requires federal district courts to " order, as an explicit condition of supervised release for a person required to register under [SORNA], that the person comply with the requirements of that Act." Thus, for all persons convicted of a federal sex offense after SORNA's enactment, the registration requirements contained in § 16913 are a mandatory component of their supervised release. See id.

SORNA's criminal provision— 18 U.S.C. § 2250(a)— imposes criminal penalties for failure to comply with § 16913's registration requirements. Section 16913 " applies to all sex offenders regardless of whether their convictions arise under federal or

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state law." Yelloweagle, 643 F.3d at 1278. By contrast, § 2250(a) " imposes criminal liability on two categories of persons who fail to adhere to SORNA's registration requirements: (1) any person who is a sex offender by reason of a conviction under federal law, and (2) any other [sex offender] who travels in interstate or foreign commerce." Carr, 130 S.Ct. at 2238 (quotations and citations omitted). Persons convicted of state sex crimes " who never leave the state in which they were convicted" are not subject to criminal penalties under § 2250(a). Yelloweagle, 643 F.3d at 1278.

2. SORNA: Tenth Circuit Litigation

In the years since its passage, the Tenth Circuit has rejected numerous constitutional challenges to SORNA. The court has held that § 16913— SORNA's registration provision— does not violate the Due Process Clause, the nondelegation doctrine, or the Ex Post Facto Clause. See, e.g., Lawrance, 548 F.3d at 1333-34; United States v. Hinckley, 550 F.3d 926, 935-40 (10th Cir.2008). We also have held that Congress acted within its authority under the Commerce Clause in enacting § 2250(a)(2)(B)— SORNA's criminal provision applicable to sex offenders who fail to register and travel in interstate or foreign commerce. See Lawrance, 548 F.3d at 1337; Hinckley, 550 F.3d at 940.

Most recently, we held that Congress acted within its authority under the Necessary and Proper Clause when it enacted § 2250(a)(2)(A)— SORNA's criminal provision that applies to federal sex offenders, including those who do not travel interstate. See Yelloweagle, 643 F.3d at 1289.2 We reached this conclusion based on the assumption that § 16913— SORNA's registration provision— was constitutional. See id. Specifically, we stated: " [O]perat[ing] on the assumption that § 16913 is a valid exercise of Congress's power under the Commerce Clause ... we conclude that Congress has the authority under the Necessary and Proper Clause to enact § 2250(a)(2)(A) in order to criminally enforce its validly enacted registration provision, § 16913." Id. We assumed § 16913 was valid because the defendant-appellant " waived his challenge to § 16913." Id.

Despite all the constitutional challenges to SORNA that have been asserted in the Tenth Circuit, we have not expressly addressed whether Congress acted within the scope of its authority when it required federal sex offenders to comply with § 16913's registration requirements.3

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B. Factual Background and Procedural History

In 2006, Mr. Carel, then 22 years old, impregnated his 14-year-old girlfriend. Both Mr. Carel and his girlfriend lived on Colorado's Southern Ute Indian Reservation. The pregnancy eventually came to the attention of the Southern Ute Social Services Department.

In January 2008, Mr. Carel was charged with one count of sexual abuse of a minor in Indian country in violation of 18 U.S.C. § 2243(a)4 and 18 U.S.C. § 1153.5 In August 2008, he pled guilty to the charge. A federal district court sentenced Mr. Carel to time served and to three years of supervised release. One of the conditions of his supervised release is that he " comply with the requirements of [SORNA] as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency [in any state in which] he ... resides, works, or is a student." Aplt. App. Vol. I, at 44.

On December 19, 2008, Mr. Carel met with a federal probation officer and signed a document titled " Conditions of Probation and Supervised Release." By signing the document, Mr. Carel agreed to " register as a sex offender in any state where [he] resides, is employed, carries on a vocation, or is a student." Id. at 52.

Mr. Carel moved to Bayfield, Colorado to live with a family friend some time in December 2008. On December 24, 2008, he registered as a sex offender in Colorado. His sex offender registration form indicated that he was required to re-register quarterly and that his next registration date was March 24, 2009. Mr. Carel did not re-register on that date.

On March 24, 2009, a federal grand jury indicted Mr. Carel for failure to update his sex offender registration in Colorado. At the time of his indictment, Mr. Carel remained on supervised release for his original conviction for sexual abuse of a minor in Indian country. The March 24, 2009

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indictment stated that Mr. Carel, " a person who was required to register under [SORNA], and a sex offender by reason of a conviction...

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