United States v. Cabrera-Gutierrez

• Decision Date: 17 March 2014
• Docket Number: No. 12–30233.,12–30233.
• Citation: 756 F.3d 1125
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Pedro CABRERA–GUTIERREZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

756 F.3d 1125

UNITED STATES of America, Plaintiff–Appellee,

v.Pedro CABRERA–GUTIERREZ, Defendant–Appellant.

No. 12–30233.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 11, 2013.

Filed June 3, 2013.

Amended March 17, 2014.

Rebecca L. Pennell, Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant–Appellant.

Michael C. Ormsby, United States Attorney, and Alison L. Gregoire (argued), Assistant United States Attorney, Yakima, WA, for Plaintiff–Appellee.

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielsen, Senior District Judge, Presiding. D.C. No. 2:12–cr–02027–WFN–1.

Before: A. WALLACE TASHIMA and CONSUELO M. CALLAHAN, Circuit Judges, and RANER C. COLLINS, District Judge.^*

Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge CALLAHAN.

TASHIMA, Circuit Judge:

ORDER

Defendant–Appellant's petition for panel rehearing is granted. The Opinion, filed June 3, 2013, and reported at 718 F.3d 873, is withdrawn and replaced by the Amended Opinion and concurring and dissenting opinion filed concurrently with this Order. The petition for rehearing en banc is denied as moot. Further petitions for panel rehearing and/or rehearing en banc may be filed with respect to the Amended Opinion.

OPINION

Our original Opinion was filed on June 3, 2013. See United States v. Cabrera–Gutierrez, 718 F.3d 873 (9th Cir.2013). Shortly thereafter, on June 20, 2013, the Supreme Court decided Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which worked a substantial change in sentencing law. We therefore granted the petition for panel rehearing and withdrew our Opinion. We now affirm the conviction, but vacate the sentence and remand for resentencing.

Pedro Cabrera–Gutierrez (“Cabrera”) appeals his conviction and sentence for failing to register under the Sex Offender Registration and Notification Act (“SORNA”). On appeal he advances two arguments. First, he contends that Congress lacked authority under the Commerce Clause to compel his registration as a sex offender. Second, he contends that the district court erred in sentencing him as a Tier III sex offender based on his prior conviction of second degree sexual abuse.¹

We reject Cabrera's first argument, but agree with his second. We hold that Congress has authority under the Commerce Clause to compel Cabrera, a convicted sex offender who traveled interstate, to register under SORNA. But, following the Supreme Court's recent decision in Descamps, we hold that the district court erred when it applied the modified categorical approach in sentencing Cabrera as a Tier III sex offender. Descamps precludes application of the modified categorical approach in this case.

I.

Cabrera was born in Mexico and has been removed from the United States several times. In 1998, Cabrera was convicted in Oregon of second degree sexual abuse. In his guilty plea statement, Cabrera admitted:

I on May 2, 1998 did knowingly have sexual intercourse with [redacted] and she was unable to legally consent to having sexual intercourse with me because she was under the influence of alcohol at the time of the sexual intercourse. Further [redacted] was 15 years old on May 2, 1998.

Cabrera was sentenced to 36 months' imprisonment and required to register as a sex offender. When Cabrera was released from custody in September 2000, he was advised of his responsibility to register as a sex offender under Oregon law and promptly removed to Mexico.

On February 3, 2012, Cabrera was arrested for a traffic violation in Yakima, Washington. He was subsequently charged with failing to register as a sex offender in violation of 18 U.S.C. § 2250. The indictment alleged that Cabrera was an individual who was required to register under SORNA, and having traveled in interstate commerce, did knowingly fail to register in violation of 18 U.S.C. § 2250. It further alleged that Cabrera failed to meet his registration obligation during the period February 3, 2011, through February 3, 2012.

Cabrera filed a motion to dismiss the indictment, arguing that Congress lacked authority to require him to register as a sex offender. The district court denied the motion, noting that although United States v. George, 625 F.3d 1124 (9th Cir.2010), had been vacated, 672 F.3d 1126 (9th Cir.2012), “the Court finds the reasoning in George persuasive and notes that the opinion was vacated on different grounds.” Thereafter, Cabrera entered a conditional plea of guilty, preserving his right to appeal the denial of his motion to dismiss.

The Pre–Sentence Investigation Report (“PSR”) listed Cabrera's offense level as 16 under U.S.S.G. § 2A3.5(a)(1) because he was required to register as a Tier III sex offender. Cabrera objected to the PSR. He argued that his prior conviction only qualified him as a Tier I sex offender, not a Tier III offender, because his Oregon conviction was not comparable to, or more severe than, “aggravated sexual abuse or sexual abuse,” as defined in 42 U.S.C. § 16911. The district court rejected this argument, noting that Cabrera's guilty plea admitted that the girl was intoxicated and fifteen years old. The court sentenced Cabrera to seventeen months' imprisonment and three years' supervised release. Cabrera timely appeals from his conviction and sentence.

II.

We review the district court's denial of Cabrera's motion to dismiss the indictment de novo. United States. v. Milovanovic, 678 F.3d 713, 719–20 (9th Cir.2012) (en banc); United States v. Marks, 379 F.3d 1114, 1116 (9th Cir.2004).

SORNA requires sex offenders to, among other things, register their names, addresses, employment or school information, update that information, and appear in person at least once a year for verification of the information. 42 U.S.C. § 16901 et seq. These obligations, Cabrera asserts, are an unconstitutional regulation of his inactivity under the Supreme Court's recent opinion in National Federation of Independent Business v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012). Cabrera accepts that Congress has broad powers under the Commerce Clause, but points out that in Sebelius, the Court stated that “[c]onstruing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.” Id. at 2587. Cabrera further argues that, unlike the Affordable Care Act at issue in Sebelius, SORNA has nothing to do with commerce. Its purpose is to “protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. He argues that this purpose, while laudable, is not an appropriate purpose under the Commerce Clause because public safety measures lie exclusively in the realm of the States.

In anticipation of the government's reliance on “an additional jurisdictional hook,” such as travel across state lines, Cabrera argues that SORNA requires all sex offenders to register, regardless of travel, and that the duty to register under SORNA precedes any act of travel. Thus, he continues, “SORNA would hold an individual who fails to register, travels and then registers equally responsible as an individual who never registers, before or after travel.” He argues, citing Sebelius, 132 S.Ct. at 2590, that “the proposition that Congress may dictate conduct of an individual today [i.e., registering as a sex offender] because of prophesied future activity [i.e., interstate travel] finds no support in [the applicable Commerce Clause] precedent.” Cabrera concludes that because Congress lacks the power to require an individual to register as a sex offender, it follows that it cannot penalize him for failing to register, even if he has traveled in interstate commerce.

We are not persuaded. In United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Supreme Court recognized Congress's “broad” power under the Commerce Clause to regulate: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities having a substantial relation to interstate commerce.” Id. at 558–59, 115 S.Ct. 1624 (citations omitted). The government asserts that the requirement of interstate travel meets “the first two categories of Congress” Commerce Clause authority, because an interstate traveler is both a person “in interstate commerce” and one who uses the “channels of interstate commerce.”

We held in George, 625 F.3d at 1130, vacated on other grounds,672 F.3d 1126, that “Congress had the power under its broad commerce clause authority to enact the SORNA,” and we now reaffirm that holding, which has been embraced by our fellow circuits. In George, we explained:

SORNA was enacted to keep track of sex offenders. See Carr v. United States, 560 U.S. 438, 455 [130 S.Ct. 2229, 176 L.Ed.2d 1152] (2010) (“[SORNA was] enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks.”). Such offenders are required to “register, and keep registration current, in each jurisdiction” where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, “[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions.” United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009). “Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce.” Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at “regulating persons or things in interstate commerce and the use of the channels of interstate commerce.” Id. at 717 (quoting [ United States v.]...