United States v. Baptiste

• Decision Date: 24 July 2014
• Docket Number: No. EP–13–CR–2311–KC.,EP–13–CR–2311–KC.
• Citation: 34 F.Supp.3d 662
• Parties: UNITED STATES v. Matthew BAPTISTE, Defendant.
• Court: U.S. District Court — Western District of Texas

34 F.Supp.3d 662

UNITED STATES

v.Matthew BAPTISTE, Defendant.

No. EP–13–CR–2311–KC.

United States District Court, W.D. Texas, El Paso Division.

Signed July 24, 2014.

Ian Martinez Hanna, U.S. Attorney's Office, El Paso, TX, Richard Thomas, Sr., United States Attorney's Office, Fort Bliss, TX, for United States.

Erik Anthony Hanshew, Shane Michael McMahon, Office of the Federal Public Defender, El Paso, TX, for Defendant.

ORDER

KATHLEEN CARDONE, District Judge.

On this day, the Court considered the above-captioned case. Because False Statement, 18 U.S.C. § 1001, does not constitute a sex offense as defined by the Sex Offender Registration and Notification Act, 42 U.S.C. § 16901 et seq. (“SORNA”), it is hereby ORDERED that Defendant shall not be required to register as a sex offender as a condition of supervised release.

I. BACKGROUND

On October 23, 2013, the Grand Jury sitting in El Paso, Texas returned an Indictment charging Defendant with two counts of Abusive Sexual Contact, 18 U.S.C. § 2244(b). Indictment, ECF No. 3. On March 14, 2014, Defendant entered into a plea agreement (“Plea Agreement”) with the government, pursuant to which he agreed to plead guilty to a one count Information charging him with False Statement in violation of 18 U.S.C. § 1001(a)(2). Plea Agreement, ECF No. 40. As part of the plea agreement, Defendant admitted to the facts set out in an attached factual basis (“Factual Basis”).

The Factual Basis provides that:

On September 26, 2012 Matthew Baptiste (Baptiste) was interviewed by Federal Bureau of Investigation (FBI) Special Agents (SAs) with respect to an allegation of sexual contact made against him by M.A.M.A. was a then-seventeen year old foreign exchange student from Japan who was being hosted by Baptiste in his home. At the time M.A. made the claim against Baptiste the Baptiste family resided on Ft. Bliss in an area under the exclusive jurisdiction of the United States.

Over the course of the interview Baptiste made several representations to the FBI SAs including that on the night of September 13, 2012 his wife was physically present in their home the entire evening; that on the night of September 13, 2012 Baptiste did not receive a massage from M.A.; and that on the night of September 13, 2012 Baptiste had never touched M.A.'s inner thighs and licked her vagina with his tongue.

These statements were not factually true in that on the night of September 13, 2012 Baptiste's wife was not home the entirety of the evening, she was performing 24 hour Staff Duty Officer duty at her military command's headquarters and this duty kept her out of the home for the majority of those 24 hours; on the evening of September 13, 2012 Baptiste did receive a massage from M.A.; and that on the evening of September 13, 2012 Baptiste did touch M.A.'s inner thighs did [sic] lick M.A.'s vagina with his tongue.

Baptiste now admits that these statements were materially false in that Defendant's false statements were an attempt to avoid further investigation and questioning by Federal Bureau of Investigation Special Agents into the allegation of sexual contact made against him by M.A. Baptiste further admits that when making these materially false statements he acted with the knowledge that his conduct was unlawful.

Plea Agreement 6

The Court held a plea hearing on March 14, 2014, and accepted Defendant's guilty plea. ECF No. 42.

On June 4, 2014, the United States Probation Department filed its Presentence Investigation Report (“PSR”). PSR, ECF No. 45. As part of the PSR's sentencing options, the probation officer recommended that the Court impose special conditions of supervised release, to include that Defendant participate in a sex offender treatment program, that Defendant not associate with children under the age of eighteen except in the presence of an adult, and that Defendant not reside within 1,000 feet of a school without approval of a probation officer, among other conditions. PSR 22–23. Although the PSR did not state that sex offender registration is a mandatory condition of supervised release pursuant to 18 U.S.C. § 3583(d), the Court sua sponte raised the issue of registration under SORNA to resolve any ambiguity as to Defendant's registration requirements pursuant to 42 U.S.C. § 16913. The Court ordered the parties to brief the issue.

On June 22, 2014, Defendant filed his Sentencing Memorandum. Def.'s Mem., ECF No, 51. The government filed its Brief on June 25, 2014. Gov't's Br., ECF No. 54. Defendant filed a Supplement to his Sentencing Memorandum on July 7, 2014, Def.'s Suppl., ECF No. 56, and the government filed its Response on July 10, 2014. Gov't's Resp., ECF No. 57.

II. DISCUSSION

A. Analysis

In its brief, the government argues that the Court should look to the facts and circumstances surrounding the criminal offense at issue in this case, False Statement, to determine whether it constitutes a “sex offense” as defined by SORNA. Gov't's Br. 4, 6. According to the government, Defendant admitted to the facts set forth in the Factual Basis of the Plea Agreement regarding his sexual conduct with M.A., who was a minor pursuant to federal law. Id. at 6. Therefore, the government argues, Defendant's conviction for False Statement involves “conduct that by its nature is a sex offense against a minor,” within the meaning of 42 U.S.C. § 16911(7)(I), and § 16913 mandates sex offender registration. Id. at 6–7.

The government also argues that, if the Court concludes that sex offender registration is not a mandatory condition of supervised release under the facts of this case, the Court should nonetheless require Defendant to register as a sex offender pursuant to the Court's discretionary power to do so.Id. at 7 (citing 18 U.S.C. § 3583(d)(1)-(3) ).

Defendant argues that he need not register as a sex offender because the sex offender registration statute provides a closed set of federal offenses that mandate sex offender registration, and the offense to which Defendant pleaded guilty, False Statement, is not an enumerated offense. Def.'s Mem. 4. Defendant further contends The National Guidelines for Sex Offender Registration and Notification (“SMART Guidelines”), which provide guidance and assistance in implementing sex offender registration and notification programs, constitute the Attorney General's interpretation of SORNA, and § 16911(7)(I) in particular. Def.'s Suppl. 1–2. As such, Defendant explains the Court should accord that interpretation deference pursuant to Chevron U.S.A. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Id. at 2–4. According to Defendant, such deference results in a finding that Defendant is not required to register. See id.

Specifically, the relevant portion of the SMART Guidelines provides:

Conduct by Its Nature a Sex Offense Against a Minor (§ 111(7)(I)): The final clause covers “[a]ny conduct that by its nature is a sex offense against a minor.” It is intended to ensure coverage of convictions under statutes defining sexual offenses in which the status of the victim as a minor is an element of an offense, such as specially defined child molestation or child prostitution offenses, and other offenses prohibiting sexual activity with underage persons. Jurisdictions can comply with the offense coverage requirement under this clause by including convictions for such offenses in their registration requirements.

Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,052 (Jul. 2, 2008) (emphasis added).

Defendant argues that the SMART Guidelines require a sentencing court, when deciding whether to impose sex offender registration as a condition of supervised release, to employ what is known as the “categorical approach,” whereby the court considers only the elements of the offense without considering the facts and circumstances surrounding the offense. Id. at 3–5.¹ Defendant further argues that, under this approach, his conviction for False Statement pursuant to 18 U.S.C. § 1001 does not require him to register as a sex offender because the offense does not contain an element that the victim be a minor child.² Id. at 3 (citing SMART Guidelines, 73 Fed.Reg. at 38,052 ).

Defendant further argues that because registration as a condition of supervised release is not mandated pursuant to Texas law, the Court should not impose sex offender registration based upon Texas law, nor upon the Court's discretionary power to do so. Def.'s Mem. 2–9. The Court addresses these arguments in turn.

1. SORNA and the scope of § 16911(5)(A)(ii)

Pursuant to SORNA, a person must register as a sex offender, and keep that registration current, if that person is a “sex offender,” which the statute defines as “an individual who was convicted of a sex offense.” United States v. Gonzalez–Medina, 757 F.3d 425, 428 (5th Cir.2014) (citing 42 U.S.C. §§ 16913(a), 16911(1) ). As relevant here, SORNA defines a “sex offense” as

(i) a criminal offense that has an element involving a sexual act or sexual contact with another; [or]

(ii) a criminal offense that is a specified offense against a minor; [or]

(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18.

42 U.S.C. § 16911(5)(A).

SORNA defines “criminal offense” in turn as “a State, local, tribal, foreign, or military offense (to the extent specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105–119 (10 U.S.C. § 951 note)) or other criminal offense.” Id. § 16911(6). Finally, SORNA defines “specified offense against a minor” as set out in § 16911(5)(A)(ii) in the following way:

(7) Expansion of definition of “specified offense against a minor” to include all offenses by child predators

The term “specified offense against a minor” means an offense against a minor that involves any of the following:

(A) An

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