U.S. v. Utesch, No. 08-5828.

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtKaren Nelson Moore
PartiesUNITED STATES of America, Plaintiff-Appellee, v. John F. UTESCH, Defendant-Appellant.
Decision Date02 March 2010
Docket NumberNo. 08-5828.
596 F.3d 302
UNITED STATES of America, Plaintiff-Appellee,
v.
John F. UTESCH, Defendant-Appellant.
No. 08-5828.
United States Court of Appeals, Sixth Circuit.
Argued: January 19, 2010.
Decided and Filed: March 2, 2010.

[596 F.3d 304]

ARGUED: Laura E. Davis, Federal Defender Services of Eastern Tennessee, Inc., Knoxville, Tennessee, for Appellant. Debra A. Breneman, Assistant United States Attorney, Knoxville, Tennessee, for Appellee. ON BRIEF: Nikki C. Pierce, Federal Defender Services of Eastern Tennessee, Inc., Greeneville, Tennessee, for Appellant. Helen C.T. Smith, Assistant United States Attorney, Greeneville, Tennessee, for Appellee.

Before: SILER, MOORE, and CLAY, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.


John F. Utesch ("Utesch") appeals the district court's denial of his motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 ("SORNA" or "the Act"), Pub.L. 109-248. Utesch pleaded guilty after reserving his right to challenge the Act and its application to him on constitutional and other grounds. The district court sentenced him to three months of incarceration and ten years of supervised release.

On appeal, Utesch argues that (1) SORNA cannot apply to him without violating the Ex Post Facto and Due Process Clauses because the three states among which he moved have not implemented the Act; (2) his conviction violates due process because the government failed to notify him of his obligation to register under the Act; (3) SORNA's grant of authority to the Attorney General to make the Act retroactive violates the nondelegation doctrine; (4) the Attorney General's regulation making SORNA retroactive violated the Administrative Procedure Act ("APA"); (5) SORNA's application under 18 U.S.C. § 2250(a)(2)(A) violates the Commerce Clause; (6) SORNA's application under 18 U.S.C. § 2250(a)(2)(B) violates the Commerce Clause and Ex Post Facto Clause; and (7) SORNA violates the Tenth Amendment by requiring states to implement its provisions. Utesch also challenges the district court's imposition of certain special conditions of supervised release on the grounds that they are not reasonably related to the 18 U.S.C. § 3553(a) sentencing factors, they involve greater deprivation than necessary to achieve the purposes of sentencing, and they are inconsistent with policy statements of the U.S. Sentencing Commission. As explained below, we REVERSE the district court's order based on the failure of the Attorney General's retroactivity regulation to conform to the requirements of the APA. Accordingly, we do not reach Utesch's constitutional challenges, and we need not address his conditions of release.

I. BACKGROUND

A. Factual Background

In 1997, Utesch pleaded guilty to assault with intent to commit sexual abuse of a fourteen-year-old girl, an aggravated misdemeanor, under Iowa Code Ann. §§ 708.1 and 709.11. He was sentenced to 365 days in prison, which was reduced to 30 days,

596 F.3d 305

and one year of supervised release. Iowa law classified him as a sex offender and required registration for ten years after his release. Specifically, state law required him to verify his address and phone number annually, to provide notice of any change of address within five days of moving, and to provide notice of compliance with the registration laws of any other state to which he moved within five days of moving.

Utesch registered in Iowa in September 1997, November 1998, April 1999, April 2000, and November 2001. In October 2002, he moved to Virginia and registered as a sex offender there. United States v. Utesch, No. 2:07-CR-105, 2008 WL 656066, at *2 (E.D.Tenn. Mar. 6, 2008). On December 31, 2002, he moved to Tennessee, where he has resided ever since. Though he was required to do so within forty-eight hours of establishing residence, Tenn.Code Ann. § 40-39-203, Utesch did not register in Tennessee until his arrest in connection with this case. Utesch, 2008 WL 656066, at *2. In September of 2003, 2004, 2005, and 2006, the Iowa Department of Public Safety sent address-verification forms to his last-known address in Iowa. All forms were returned as undeliverable.

From October 2002 to July 2004, Utesch worked at a business located in Tennessee, commuting from Virginia from the period of October to December 2002, when he moved to Tennessee. From July 2004 to August 2005, he was self-employed as a carpenter. From September 20, 2005 to at least November 28, 2007 (the date of his arrest), he worked at KVA-T Food Stores in Bristol, Virginia, just across the Tennessee border. Utesch therefore "traveled in interstate commerce from his residence in Tennessee to his workplace in Virginia on a regular basis, at least weekly." Supp. Stip. of Facts at 2 (Document 22).

B. Procedural Background

On November 13, 2007, Utesch was named in a one-count indictment charging him with failure to register or update his registration under Iowa law from September 1, 2006 to November 12, 2007, as required by SORNA, in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911, 16913. He was arrested on November 28, 2007, after which he registered in Tennessee for the first time and in Iowa for the first time since 2001. Utesch filed a motion to dismiss the indictment, and the government responded in opposition. While the motion was pending, the parties entered into a plea agreement under which Utesch reserved the right to appeal the district court's ruling on his motion to dismiss.

The district judge referred the motion to dismiss to a magistrate judge for a report and recommendation, and the magistrate judge held a hearing on February 7, 2008. Following the hearing, the parties submitted a supplemental stipulation of facts detailing Utesch's residency and employment history and the dates of his interstate travel. On February 14, 2008, the magistrate judge issued a report recommending denial of Utesch's motion. After receiving an objection from Utesch and a response from the government, the district judge adopted the report and recommendation in full on March 6, 2008. See Utesch, 2008 WL 656066.

At a hearing on March 17, 2008, the district court accepted Utesch's guilty plea. Following the filing of a presentence report, the submission of memoranda from both parties, and a hearing on June 16, 2008, the district court varied downward from the Guidelines range of 10 to 16 months and sentenced Utesch to three months in prison and ten years of supervised release.

596 F.3d 306

The district court imposed ten special conditions of supervision, including the following five that Utesch challenges on appeal: (1) sex offender mental health treatment as directed by the probation officer; (2) no contact with the victim of his underlying 1997 sex offense without the prior written consent of the probation officer; (3) no possession of photographs or recorded material for the purpose of sexual arousal; (4) submission of his person, vehicle, residence, and other areas over which he exercises control to search for such material; and (5) no access to computers with an internet connection without the probation officer's prior written consent. Utesch objected to the special conditions. He timely filed a notice of appeal on June 27, 2008.

II. ANALYSIS

A. Standard of Review

In reviewing a motion to dismiss an indictment, we review the district court's legal conclusions de novo and its findings of fact for clear error or abuse of discretion. United States v. Grenier, 513 F.3d 632, 635-36 (6th Cir.2008). In this case, the operative facts are not in dispute. Utesch challenges the applicability and constitutionality of SORNA, so our review is de novo.

B. Overview of SORNA

Congress enacted SORNA to create a national system for the registration of sex offenders. 42 U.S.C. § 16901. Section 16913 provides 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." § 16913(a). As part of keeping the registration current, an 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)" and report the relevant changes. § 16913(c). Section 16913 also explains the requirements for sex offenders registering for the first time. § 16913(b). It further provides that

t]he 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.

§ 16913(d).1

SORNA makes it a crime to violate its registration requirements. The Act provides that a person who is (1) "required to register under" SORNA,2 (2) "travels in interstate or foreign commerce" or is a sex offender under federal, tribal, D.C., or U.S. territorial law, and (3) "knowingly fails to register or update registration as required by [SORNA] shall be fined" and/or imprisoned for up to ten years. 18 U.S.C. § 2250(a).

SORNA became effective on July 27, 2006. On February 28, 2007, U.S. Attorney General Alberto Gonzales issued an immediately effective interim rule applying SORNA "to all sex offenders, including sex offenders convicted of the offense for

[596 F.3d 307

which registration is required prior to the enactment of [the] Act." 28 C.F.R. § 72.3. The Attorney General promulgated this regulation without notice and comment and without a thirty-day advance publication of its final form, disposing of these requirements based on the "good cause" provisions of the APA, 5 U.S.C. § 553(b)(B), (d)(3). See 72 Fed. Reg. 8894, 8896. At the same time, the...

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62 practice notes
  • U.S.A v. Dean, No. 09-13115.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 28, 2010
    ...now extended Cain to apply to defendants even though the thirty-day advanced publication requirement is met. See United States v. Utesch, 596 F.3d 302 (6th Cir.2010). Dean adopts the Cain majority's and the Gould dissent's position. We address the Attorney General's guidance argument first.......
  • Pavulak v. United States, Crim. No. 09-43SLR. Civ. No. 14-290-SLR.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • March 31, 2017
    ...in the Third Circuit is the date on which the SMART Guidelines became effective: August 1, 2008. See, e.g., United States v. Utesch , 596 F.3d 302, 311 (6th Cir. 2010) (since the SMART Guidelines were issued in full compliance with the APA, SORNA became effective and applicable to pre-enact......
  • U.S. v. Cotton, Criminal Action No. 10–126 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 20, 2011
    ...2008, only after the issuance of SORNA's final guidelines, which were promulgated in accordance with the APA. See United States v. Utesch, 596 F.3d 302, 311 (6th Cir.2010) ( “SORNA became effective against offenders convicted before its enactment thirty days after the final SMART guidelines......
  • United States v. Ross, No. 11-3115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 24, 2017
    ...v. Reynolds, 710 F.3d 498, 524 (3d Cir. 2013); United States v. Valverde, 628 F.3d 1159, 1168-69 (9th Cir. 2010); United States v. Utesch, 596 F.3d 302, 312 (6th Cir. 2010). But see United States v. Johnson, 632 F.3d 912, 930, 933 (5th Cir. 2011) (finding no good cause but error harmless); ......
  • Request a trial to view additional results
62 cases
  • U.S.A v. Dean, No. 09-13115.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 28, 2010
    ...now extended Cain to apply to defendants even though the thirty-day advanced publication requirement is met. See United States v. Utesch, 596 F.3d 302 (6th Cir.2010). Dean adopts the Cain majority's and the Gould dissent's position. We address the Attorney General's guidance argument first.......
  • Pavulak v. United States, Crim. No. 09-43SLR. Civ. No. 14-290-SLR.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • March 31, 2017
    ...in the Third Circuit is the date on which the SMART Guidelines became effective: August 1, 2008. See, e.g., United States v. Utesch , 596 F.3d 302, 311 (6th Cir. 2010) (since the SMART Guidelines were issued in full compliance with the APA, SORNA became effective and applicable to pre-enact......
  • U.S. v. Cotton, Criminal Action No. 10–126 (JDB).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 20, 2011
    ...2008, only after the issuance of SORNA's final guidelines, which were promulgated in accordance with the APA. See United States v. Utesch, 596 F.3d 302, 311 (6th Cir.2010) ( “SORNA became effective against offenders convicted before its enactment thirty days after the final SMART guidelines......
  • United States v. Ross, No. 11-3115
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • February 24, 2017
    ...v. Reynolds, 710 F.3d 498, 524 (3d Cir. 2013); United States v. Valverde, 628 F.3d 1159, 1168-69 (9th Cir. 2010); United States v. Utesch, 596 F.3d 302, 312 (6th Cir. 2010). But see United States v. Johnson, 632 F.3d 912, 930, 933 (5th Cir. 2011) (finding no good cause but error harmless); ......
  • Request a trial to view additional results

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