United States v. Kebodeaux

• Decision Date: 24 June 2013
• Docket Number: No. 12–418.,12–418.
• Parties: UNITED STATES, Petitioner v. Anthony James KEBODEAUX.
• Court: U.S. Supreme Court

570 U.S. 387

133 S.Ct. 2496

186 L.Ed.2d 540

UNITED STATES, Petitioner

v.Anthony James KEBODEAUX.

No. 12–418.

Supreme Court of the United States

Argued April 17, 2013.

Decided June 24, 2013.

Michael R. Dreeben, Washington, DC, for Petitioner.

M. Carolyn Fuentes, San Antonio, TX, for Respondent.

Donald B. Verrilli, Jr., Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Counsel of Record, Curtis E. Gannon, Melissa Arbus Sherry, Assistants to the Solicitor General, Scott A.C. Meisler, Attorney, Department of Justice, Washington, DC, for Petitioner.

Jeffrey T. Green, Jacqueline G. Cooper, Sidley Austin LLP, Washington, DC, Sarah O'Rourke Schrup, Northwestern University Supreme Court Practicum, Chicago, IL, M. Carolyn Fuentes, Assistant Federal Public Defender, Counsel of Record, Philip J. Lynch, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Western District of Texas, San Antonio, TX, for Respondent.

Justice BREYER delivered the opinion of the Court.

In 1999 a special court-martial convicted Anthony Kebodeaux, a member of the United States Air Force, of a sex offense. It imposed a sentence of three months' imprisonment and a bad conduct discharge. In 2006, several years after Kebodeaux had served his sentence and been discharged, Congress enacted the Sex Offender Registration and Notification Act (SORNA), 120 Stat. 590, 42 U.S.C. § 16901 et seq., a federal statute that requires those convicted of federal sex offenses to register in the States where they live, study, and work. § 16913(a) ; 18 U.S.C. § 2250(a). And, by regulation, the Federal Government made clear that SORNA's registration requirements apply to federal sex offenders who, when SORNA became law, had already completed their sentences. 42 U.S.C. § 16913(d) (Attorney General's authority to issue regulations); 28 CFR § 72.3 (2012) (regulation specifying application to pre-SORNA offenders).

We here must decide whether the Constitution's Necessary and Proper Clause grants Congress the power to enact SORNA's registration requirements and apply them to a federal offender who had completed his sentence prior to the time of SORNA's enactment. For purposes of answering this question, we assume that Congress has complied with the Constitution's Ex Post Facto and Due Process Clauses. See Smith v. Doe, 538 U.S. 84, 105–106, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003) (upholding a similar Alaska statute against ex post facto challenge); Supp. Brief for Kebodeaux on Rehearing En Banc in No. 08–51185 (CA5) (not raising any Due Process challenge); Brief for Respondent (same). We conclude that the Necessary and Proper Clause grants Congress adequate power to enact SORNA and to apply it here.

I

As we have just said, in 1999 a special court-martial convicted Kebodeaux, then a member of the Air Force, of a federal sex offense. He served his 3–month sentence; the Air Force released him with a bad conduct discharge. And then he moved to Texas. In 2004 Kebodeaux registered as a sex offender with Texas state authorities. Brief for Respondent 6–7. In 2006 Congress enacted SORNA. In 2007 Kebodeaux moved within Texas from San Antonio to El Paso, updating his sex offender registration. App. to Pet. for Cert. 167a–168a. But later that year he returned to San Antonio without making the legally required sex-offender registration changes. Id., at 169a. And the Federal Government, acting under SORNA, prosecuted Kebodeaux for this last-mentioned SORNA registration failure.

A Federal District Court convicted Kebodeaux of having violated SORNA. See 687 F.3d 232, 234 (C.A.5 2012) (en banc). On appeal a panel of the United States Court of Appeals for the Fifth Circuit initially upheld the conviction. 647 F.3d 137 (2011) (per curiam ). But the Circuit then heard the appeal en banc and, by a vote of 10 to 6, reversed. 687 F.3d, at 234. The court stated that, by the time Congress enacted SORNA, Kebodeaux had "fully served" his sex-offense sentence; 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." Ibid.

The court recognized that, even before SORNA, federal law required certain federal sex offenders to register. Id., at 235, n. 4. See Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, § 170101, 108 Stat. 2038–2042. But it believed that the pre-SORNA federal registration requirements did not apply to Kebodeaux. 687 F.3d, at 235, n. 4. Hence, in the Circuit's view, Kebodeaux had been "unconditionally let ... free." Id., at 234. And, that being so, the Federal Government lacked the power under Article I's Necessary and Proper Clause to regulate through registration Kebodeaux's intrastate movements. Id., at 234–235. In particular, the court said that after "the federal government has unconditionally let a person free ... the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution." Ibid.

The Solicitor General sought certiorari. And, in light of the fact that a Federal Court of Appeals has held a federal statute unconstitutional, we granted the petition. See, e.g., United States v. Morrison, 529 U.S. 598, 605, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000) ; United States v. Edge Broadcasting Co., 509 U.S. 418, 425, 113 S.Ct. 2696, 125 L.Ed.2d 345 (1993).

II

We do not agree with the Circuit's conclusion. And, in explaining our reasons, we need not go much further than the Circuit's critical assumption that Kebodeaux's release was "unconditional," i.e., that after Kebodeaux's release, he was not in "any ... special relationship with the federal government." 687 F.3d, at 234. To the contrary, the Solicitor General, tracing through a complex set of statutory cross-references, has pointed out that at the time of his offense and conviction Kebodeaux was subject to the federal Wetterling Act, an Act that imposed upon him registration requirements very similar to those that SORNA later mandated. Brief for United States 18–29.

Congress enacted the Wetterling Act in 1994 and updated it several times prior to Kebodeaux's offense. Like SORNA, it used the federal spending power to encourage States to adopt sex offender registration laws. 42 U.S.C. § 14071(i) (2000 ed.) ; Smith, supra, at 89–90, 123 S.Ct. 1140. Like SORNA, it applied to those who committed federal sex crimes. § 14071(b)(7)(A). And like SORNA, it imposed federal penalties upon federal sex offenders who failed to register in the States in which they lived, worked, and studied. §§ 14072(i)(3)–(4).

In particular, § 14072(i)(3) imposed federal criminal penalties upon any "person who is ... described in section 4042(c)(4) of title 18, and knowingly fails to register in any State in which the person resides." The cross-referenced § 4042(c)(4) said that a "person is described in this paragraph if the person was convicted of" certain enumerated offenses or "[a]ny other offense designated by the Attorney General as a sexual offense for purposes of this subsection." 18 U.S.C. § 4042(c)(4). In 1998 the Attorney General "delegated this authority [to designate sex offenses] to the Director of the Bureau of Prisons." Dept. of Justice, Bureau of Prisons, Designation of Offenses Subject to Sex Offender Release Notification, 63 Fed.Reg. 69386. And that same year the Director of the Bureau of Prisons "designate[d]" the offense of which Kebodeaux was convicted, namely the military offense of "carnal knowledge" as set forth in Article 120(B) of the Code of Military Justice. Id., at 69387 See 28 CFR § 571.72(b)(2) (1999). A full reading of these documents makes clear that, contrary to Kebodeaux's contention, the relevant penalty applied to crimes committed by military personnel.

Moreover, a different Wetterling Act section imposed federal criminal penalties upon any "person who is ... sentenced by a court martial for conduct in a category specified by the Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105–119, and knowingly fails to register in any State in which the person resides." 42 U.S.C. § 14072(i)(4) (2000 ed.). The cross-referenced section, § 115(a)(8)(C), said that the "Secretary of Defense shall specify categories of conduct punishable under the Uniform Code of Military Justice which encompass a range of conduct comparable to that described in [certain provisions of the Violent Crime Control and Law Enforcement Act of 1994], and such other conduct as the Secretary deems appropriate." 1998 Appropriations Act, § 115(a)(8)(C)(i), 111 Stat. 2466. See note following 10 U.S.C. § 951 (2000 ed.). The Secretary had delegated certain types of authority, such as this last mentioned "deem[ing]" authority, to an Assistant Secretary of Defense. DoD Directive 5124.5, p. 4 (Oct. 31, 1994). And in December 1998 an Assistant Secretary, acting pursuant to this authority, published a list of military crimes that included the crime of which Kebodeaux was convicted, namely Article 120(B) of the Uniform Code of Military Justice. App. to Pet. for Cert. 171a–175a. The provision added that "[c]onvictions ... shall trigger requirements to notify state and local law enforcement agencies and to provide information to inmates concerning sex offender registration requirements." Id., at 175a. And, the provision says (contrary to Kebodeaux's reading, Brief for Respondent 57), that it shall "take effect immediately." It contains no expiration date. App. to Pet. for Cert. 175a.

We are not aware of any plausible counterargument to the obvious conclusion, namely that as of the time of Kebodeaux's offense, conviction and release from federal custody, these Wetterling Act provisions applied to Kebodeaux and imposed upon him registration requirements very similar to those that SORNA later imposed. Contrary to what the Court of Appeals may have believed, the fact that the...