United States. v. Kebodeaux, No. 08-51185

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
PartiesUNITED STATES OF AMERICA, Plaintiff - Appellee v. ANTHONY JAMES KEBODEAUX, also known as Anthony Kebodeaux, Defendant - Appellant
Decision Date12 July 2011
Docket NumberNo. 08-51185

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 FOR THE FIFTH CIRCUIT

Dated:July 12, 2011


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

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

The petition for rehearing en banc, treated as a petition for panel rehearing, is GRANTED. We withdraw our prior opinion, United States v. Kebodeaux, 634 F.3d 293 (5th Cir. 2011), and substitute the following.

Defendant, Anthony Kebodeaux, a federally-adjudged sex offender, was convicted of knowingly failing to update his sex offender registration after his intrastate change of residence (from El Paso to San Antonio, Texas) as required by the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and one day of imprisonment. On appeal, he argues that the Constitution does not grant Congress the authority to enact § 2250(a)(2)(A), read together with

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§ 16913, because that provision regulates purely intrastate activities, rather than any aspect of Congress's proper domain of interstate commerce—and that no other Article I source of authority permits Congress to impose SORNA's registration and notification obligations on him. We conclude that § 2250(a)(2)(A) is constitutional.

BACKGROUND

In 1999, Kebodeaux, a twenty-one-year-old member of the United States Air Force, was convicted under Article 120 of the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 920, of Carnal Knowledge With a Child, and sentenced to three months of confinement and a bad conduct discharge. The victim was a fifteen-year-old with whom Kebodeaux had sexual relations to which the victim assented in fact though she lacked the legal ability to consent. Kebodeaux served his sentence and was discharged from the military. No term of supervised release was imposed.

On August 8, 2007, Kebodeaux registered as a sex offender in El Paso, Texas, and reported his residence at a street address in that city, in compliance with SORNA. See 42 U.S.C. § 16913. On January 24, 2008, El Paso police were unable to locate Kebodeaux at that address. On March 12, 2008, Kebodeaux was found and arrested in San Antonio, Texas. Kebodeaux admits that he did not update his registration or otherwise inform authorities of his relocation from El Paso to San Antonio as required by SORNA.1 On April 2, 2008, a federal grand

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jury indicted Kebodeaux on one count of violating of SORNA, 18 U.S.C. § 2250(a).

Section 2250(a) makes it a crime punishable by up to ten years imprisonment if a person who:

(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 (including the [UCMJ]), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by [SORNA].

Thus, "Section 2250 imposes criminal liability on two categories of persons who fail to adhere to SORNA's registration [and updating] requirements: any person who is a sex offender 'by reason of a conviction under Federal law, the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States, § 2250(a)(2)(A), and any other person required to register under SORNA who 'travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country,' § 2250(a)(2)(B)." Carr v. United States, 130 S. Ct. 2229, 2238 (2010) (alteration removed). Accordingly, "[f]or persons convicted of sex offenses under federal or Indian tribal law, interstate travel is not a prerequisite to § 2250 liability." Id. at 2235 n.3 (citing § 2250(a)(2)(A)).

In response to Kebodeaux's pre-trial filings, the Government stated that it was charging Kebodeaux solely because he fell under 18 U.S.C. § 2250(a)(2)(A), as he qualified as a sex offender "for the purpose of" SORNA "by reason of a

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conviction under . . . the [UCMJ]" and knowingly failed to update his registration when he moved intra-state, within Texas.2 After a bench trial on the stipulated facts described above, Kebodeaux was convicted and subsequently sentenced below the Sentencing Guidelines recommendation to twelve months and one day of imprisonment, with a five-year term of supervised release. Kebodeaux timely appeals the constitutionality of his conviction and sentence.

DISCUSSION

We review challenges to the constitutionality of a conviction de novo. United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009).

Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)'s punishment of a federal sex offender — who has previously registered under SORNA — for knowingly failing to update his registration after an intrastate relocation in violation of the registration requirement imposed by § 16913. He concedes the constitutional validity of the balance of SORNA's provisions.

We must begin any assessment of the constitutionality of a duly-enacted federal statute with a "presumption of constitutionality." United States v. Morrison, 529 U.S. 598, 607 (2000). This presumption itself is grounded in the Constitution: "Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds." Id. We remain, of course, mindful that in some cases a party will succeed in making this "plain showing," and that in those cases it is our obligation to declare the law unconstitutional. Cf. Morrison, 529 U.S. at 616, 627 (holding part of the Violence Against Women Act outside Congress's authority to enact); United

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States v. Lopez, 514 U.S. 549, 567—68 (1995) (holding the Gun-Free School Zones Act unconstitutional).

Along these lines, we note that we do not write on a blank slate as to SORNA, as it has withstood constitutional scrutiny on a number of fronts in the years since its enactment. Our court has previously held that, as applied to sex offenders who traveled across state lines, § 16913, taken together with § 2250(a)(2)(B), does not run afoul of the Commerce Clause, United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009), the Due Process Clause, id. at 262, or the non-delegation doctrine, id. at 264. We have also held that SORNA comports with the requirements of the Ex Post Facto Clause because "the forbidden act [viz., failure to register] is not one which was legal at the time [the appellant] committed it." United States v. Young, 585 F.3d 199, 203—04 (5th Cir. 2009); see also Smith v. Doe, 538 U.S. 84, 92 (2003) (holding Alaska's state sex offender statute did not run afoul of the Ex Post Facto Clause because the law was "a regulatory scheme that is civil and nonpunitive" in intention and in fact). We have rejected challenges to the application of SORNA under the Due Process Clause where the involved states maintained sex offender registries but had not formally implemented SORNA. United States v. Heth, 596 F.3d 255, 259 (5th Cir. 2010). We also have held that SORNA does not "compel the States to enact or enforce a federal regulatory program" in violation of the Tenth Amendment. United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011) (quoting Printz v. United States, 521 U.S. 898, 935 (1997)), petition for cert. filed, No. 10-10330 (U.S. filed May 3, 2011).3 Furthermore, no other circuit has held any portion of

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SORNA unconstitutional,4 and the few district courts that have rejected any part of SORNA as unconstitutional have all been reversed or overruled on the merits. See, e.g., United States v. Waybright, 561 F. Supp. 2d 1154, 1168 (D. Mont. 2008), overruled by United States v. George, 625 F.3d 1124, 1129 n.2 (9th Cir. 2010); United States v. Powers, 544 F. Supp. 2d 1331, 1336 (M.D. Fla. 2008), rev'd, 562 F.3d 1342, 1344 (11th Cir. 2009) (per curiam); United States v. Guzman, 582 F. Supp. 2d 305, 315 (N.D.N.Y. 2008), rev'd, 591 F.3d 83, 89—91 (2d Cir. 2010), cert. denied, 130 S. Ct. 3487; United States v. Hall, 577 F. Supp. 2d 610, 623 (N.D.N.Y. 2008), rev'd sub nom. United States v. Guzman, 591 F.3d at 89—91.

Of these various cases upholding SORNA, the Ninth Circuit's decision in George is the one that directly addressed the issue presented by this appeal. The Ninth Circuit held that Congress acted within its powers, explaining that "SORNA's registration requirements in [§ 2250(a)(2)(A)] are valid based on the federal government's 'direct supervisory interest' over federal sex offenders." 625 F.3d at 1130 (quoting Carr, 130 S. Ct. at 2239).5 While George, of course,

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does not bind us, "[w]e are always chary to create a circuit split," Alfaro v. Comm'r, 349 F. 3d 225, 229 (5th Cir. 2003), absent a "persuasive reason" for doing so, United States v. Adam, 296 F.3d 327, 332 (5th Cir. 2002).

Kebodeaux thus faces a high, though not insurmountable, hurdle to reversal: he must overcome the presumption of...

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