United States v. Kebodeaux

• Decision Date: 06 July 2012
• Docket Number: No. 08–51185.,08–51185.
• Citation: 687 F.3d 232
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony James KEBODEAUX, Also Known as Anthony Kebodeaux, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

687 F.3d 232

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony James KEBODEAUX, Also Known as Anthony Kebodeaux, Defendant–Appellant.

No. 08–51185.

United States Court of Appeals, Fifth Circuit.

July 6, 2012.

Unconstitutional as Applied

42 U.S.C.A. § 16913; 18 U.S.C.A. § 2250(a)(2)(A)

Joseph H. Gay, Jr., Mara Asya Blatt, Asst. U.S. Attys., San Antonio, TX, Scott A.C. Meisler, U.S. Dept. of Justice, Joseph Francis Palmer, U.S. Dept. of Justice, Civ. Div., App. Staff, Washington, DC, for Plaintiff–Appellee.

M. Carolyn Fuentes (argued), Fed. Pub. Def., Donna F. Coltharp, Asst. Fed. Pub. Def., Fed. Pub. Defender's Office, San Antonio, TX, for Defendant–Appellant.

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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES and GRAVES, Circuit Judges.^*

JERRY E. SMITH, Circuit Judge:

Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex Offender Registration and Notification Act (“SORNA”), of failing to update his change of address when he moved intrastate. A panel of this court affirmed. United States v. Kebodeaux, 647 F.3d 137 (5th Cir.2011). The panel majority rejected Kebodeaux's argument that Congress does not have the power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over his intrastate activities after his unconditional release from federal custody. Judge Dennis concurred in the judgment and assigned lengthy reasons, urging that SORNA is authorized by the Commerce Clause. The panel opinion was vacated by our decision to rehear the case en banc. United States v. Kebodeaux, 647 F.3d 605 (5th Cir.2011). Because we agree with Kebodeaux that, under the specific and limited facts of this case, his commission of a federal crime is an insufficient basis for Congress to assert unending criminal authority over him, we reverse and render a judgment of dismissal.

I.

While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender.¹ When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison.

Kebodeaux argues that § 2250(a)(2)(A) and the registration requirements that it enforces are unconstitutional as applied to him, because they exceed the constitutional powers of the United States. He is correct: Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.²

The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. We do not call into question Congress's ability to impose conditions on a prisoner's release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required. ³

This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA's passage in 2006.⁴ Moreover, even as to those sex offenders, it means only that Congress could treat them exactly as all state sex offenders already are treated under federal law. It also has no impact on state regulation of sex offenders.

II.

SORNA says, in relevant part, that “[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.” ⁵ Those requirements are made applicable to former federal sex offenders via 42 U.S.C. § 16913(d) and 28 C.F.R. § 72.3.⁶ SORNA then includes the following criminal provision:

Whoever—

(1) is required to register under [SORNA];

(2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law ...; or

(B) travels in interstate or foreign commerce ...; and

(3) knowingly fails to register or update a registration as required by [SORNA];

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a). Kebodeaux argues that Congress has no authority under Article I to subject him to conviction pursuant to § 2250(a)(2)(A). The government, on the other hand, maintains that its power to criminalize the conduct for which Kebodeaux was originally convicted includes the authority to regulate his movement even after his sentence has expired and he has been unconditionally released.

The most analogous Supreme Court decision is United States v. Comstock, –––U.S. ––––, 130 S.Ct. 1949, 1954, 176 L.Ed.2d 878 (2010), in which the Court examined whether Congress has the Article I power to enact a civil-commitment statute that authorizes the Department of Justice to detain mentally ill, sexually dangerous federal prisoners beyond when they would otherwise be released. The Court upheld that statute on narrow grounds because of “five considerations, taken together.” Id. at 1956, 1965.

Kebodeaux's facts go beyond those in Comstock, however, because this case is not merely about whether Congress can regulate the activity of someone still in federal custody past the expiry of his sentence. Importantly, it raises the further question whether Congress can regulate his activity solely because he was once convicted of a federal crime. The “considerations” that the Court found important in Comstock are not expansive enough to subject Kebodeaux to federal criminal sanctions under the unusual circumstances that he presents.

A.

First, the Comstock Court explained, and the panel majority here stressed, that Congress has broad authority to enact legislation under the Necessary and Proper Clause. Id. at 1956. Thus, to be constitutional under that clause, a statute must constitute a means that is “rationally related” ⁷ or “reasonably adapted”⁸ to an enumerated power. Congress has “a large discretion” as to the choice of means, id. at 1957 (quoting Lottery Case, 188 U.S. 321, 355, 23 S.Ct. 321, 47 L.Ed. 492 (1903)), and we apply a “presumption of constitutionality” to its enactments, id. (quoting United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000)). This first factor is not fact-specific; it suggests that the analysis always starts with a heavy thumb on the scale in favor of upholding government action.⁹

We must take care not to misunderstand the use of the words “rationally related” as implying that the Necessary and Proper Clause test is akin to rational-basis scrutiny under the Due Process and Equal Protection Clauses. ¹⁰ That would mean that federal action would be upheld so long as there is merely a conceivable rational relationship between an enumerated power and the action in question.¹¹ But that would be inconsistent with both the Court's Commerce Clause jurisprudence¹² and Comstock, which held that 18 U.S.C. § 4248 is constitutional because of “five considerations, taken together,” only one of which involves “the sound reasons for the statute's enactment in light of the Government's [legitimate interest].” ¹³ Thus, unless this court were to hold that the other “considerations” in Comstock were entirely superfluous, it follows that, although our analysis begins with great deference to constitutionality, we should not confuse it with Due Process Clause rational-basis scrutiny.

B.

The second factor in Comstock, 130 S.Ct. at 1958, is that the civil-commitment statute at issue was but “a modest addition to a set of federal prison-related mental-health statutes that have existed for many decades.” Although “even a longstanding history of related federal action does not demonstrate a statute's constitutionality,” id. (citing Walz v. Tax Comm'n of N.Y., 397 U.S. 664, 678, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)), it expands the deference afforded to a statute.¹⁴ Conversely, the absence of an historical analog reduces that deference.¹⁵

SORNA's sex-offender-registration requirements have a short history: They have existed only since 2006, and federal law relating to sex-offender registration only since 1994.¹⁶ The government admits that federal sex-offender registration laws are of “relatively recent vintage” but urges that they should be analogized to probation or supervised-release laws, which have a longer pedigree.

There is, however, a big difference between SORNA's sex-offender-registration requirements and probation or supervised release—a distinction that goes to the heart of this case. Unlike the situation involving probation or supervised release, SORNA's sex-offender-registration requirements (and § 2250(a)(2)(A)'s penalties) were not a condition of Kebodeaux's release from prison, let alone a punishment for his crime.¹⁷

The Department of Justice cannot find a single...