United States v. Roberson

• Decision Date: 21 May 2014
• Docket Number: No. 13–1925.,13–1925.
• Citation: 752 F.3d 517
• Parties: UNITED STATES of America, Appellee, v. James ROBERSON, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

752 F.3d 517

UNITED STATES of America, Appellee,

v.James ROBERSON, Defendant, Appellant.

No. 13–1925.

United States Court of Appeals,First Circuit.

May 21, 2014.

Thomas J. O'Connor. Jr., for appellant.

Alex J. Grant, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, TORRUELLA and HOWARD, Circuit Judges.

LYNCH, Chief Judge.

This case addresses an important question of interpretation of first impression in the federal courts of appeals. Defendant James Roberson appeals from a district court denial of his motion to dismiss and from his criminal conviction for his failure to register as a sex offender under SORNA, the Sex Offender Registration and Notification Act. 18 U.S.C. § 2250.

At the time of his federal indictment in July 2012, Roberson stood convicted, in 1998, of the Massachusetts crime of indecent assault and battery on a child under the age of 14. Mass. Gen. Laws ch. 265, § 13B. He did not appeal from that conviction; nor did he ever register as a sex offender at any time between 2010 and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on November 16, Roberson moved to withdraw his guilty plea to the sex crime in the state court. Roberson did not and does not allege that he was innocent of the indecent assault. But he did allege that his guilty plea had entered after a constitutionally defective procedure. The local prosecutor did not oppose the motion because the plea judge had utilized incomplete and inadequate plea-colloquy procedures before June 16, 2000 and there was no independent evidence that the proper plea procedures were followed during Roberson's March 4, 1998 plea hearing. ¹ The local state district court allowed the unopposed motion on January 11, 2013. We assume arguendo that Roberson's plea colloquy was constitutionally defective.

On February 15, 2013, Roberson moved to dismiss his federal charges on the basis that he no longer had a predicate sex offense to support a SORNA violation. More specifically, he argued that because of the constitutional defect, he was never “validly” convicted. He argued that his case is governed by Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), and not by Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

Agreeing with the district court, we hold that SORNA's registration requirement applied to Roberson as a person who “was convicted” of a sex offense, 42 U.S.C. § 16911(1), enforced by 18 U.S.C. § 2250, regardless of whether that conviction is later vacated, when federal charges have been brought for conduct before the vacation of conviction. We also reject Roberson's additional challenges.

I.

On March 4, 1998, pursuant to a guilty plea, Roberson was convicted of indecent assault and battery on a child under the age of 14, in violation of Chapter 265, § 13B of the Massachusetts General Laws. Roberson was sentenced to three years' probation. A week later, Roberson signed a notice informing him of his duties to register as a sex offender. In 2001, a Massachusetts arrest warrant was issued for Roberson for a probation violation.

In 2006, Roberson obtained a Florida driver's license. Over the next three years, the Florida Department of Law Enforcement mailed Roberson notices regarding his obligation to register as a sex offender. The Department proceeded to place Roberson on the Florida sex offender registry. Roberson did not register himself.

On July 14, 2010, a Vermont detective spoke to Roberson about his obligation to register as a sex offender. Roberson claimed that he was only visiting the state.

Between May and June 2011, Roberson worked in Massachusetts. Again, he did not register as a sex offender. After leaving the state and traveling to Nicaragua, Roberson returned to Massachusetts in April 2012. Roberson was arrested on May 18, 2012 on the outstanding warrant for his probation violation. Roberson did not register as a sex offender while living in Massachusetts during April and May 2012.

On July 12, 2012, a federal grand jury indicted Roberson on one count of failing to register under SORNA, in violation of 18 U.S.C. § 2250. Section 2250 makes it a crime for an individual who is “required to register under [SORNA]” to “travel[ ] in interstate or foreign commerce” and to “knowingly fail[ ] to register or update a registration” pursuant to SORNA's requirements. 18 U.S.C. § 2250(a). The indictment alleged a violation “[f]rom in or about February, 2010 to on or about May 18, 2012, in the District of Massachusetts and elsewhere.” We have described his post-indictment recourse to the Massachusetts state court.

On February 15, 2013, Roberson filed a motion to dismiss his federal indictment, challenging the Government's reliance on his now-vacated prior predicate conviction.² The Government opposed, arguing that the indictment was based upon Roberson's failure to register at a time when his Massachusetts conviction was “still in effect” and, as such, when he was still under an obligation to register. The Government relied upon Lewis, 445 U.S. at 65–68, 100 S.Ct. 915, in which the Supreme Court held that a defendant's indictment and conviction for being a felon in possession of a firearm were not undermined by the defendant's later producing evidence which the Court assumed showed that the predicate felony conviction was obtained in violation of the defendant's Sixth Amendment right to counsel. The conviction was affirmed.

On April 8, 2013, the district court orally denied Roberson's motion to dismiss the indictment, but said it would consider the state court's action at sentencing. Roberson entered a conditional guilty plea on May 22, 2013, reserving his right to appeal the district court's denial of his motion. On July 22, 2013, the district court sentenced Roberson to six months' imprisonment with no supervision to follow.

II.

The question of whether a defendant's prior conviction qualifies as a predicate offense under a federal criminal statute is an issue of federal law that this court reviews de novo. See Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir.2006).

In our view, the Supreme Court's decisions in Lewis and United States v. Mendoza–Lopez, 481 U.S. 828, 107 S.Ct. 2148, 95 L.Ed.2d 772 (1987), require us to affirm, as does our post-Lewis caselaw. Other circuits have reached similar conclusions as to other statutes.

Congress enacted SORNA in 2006 “to establish a comprehensive national system for the registration of sex offenders.” United States v. Whitlow, 714 F.3d 41, 43 (1st Cir.2013), cert. denied,––– U.S. ––––, 134 S.Ct. 287, 187 L.Ed.2d 207;accord42 U.S.C. § 16901. “SORNA's general changes were designed to make more uniform what had remained ‘a patchwork of federal and 50 individual state registration systems,’ ” United States v. Kebodeaux, ––– U.S. ––––, 133 S.Ct. 2496, 2505, 186 L.Ed.2d 540 (2013) (quoting Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012)), beset with “ ‘loopholes and deficiencies' that had resulted in an estimated 100,000 sex offenders becoming ‘missing’ or ‘lost,’ ” id. (quoting H.R.Rep. No. 109–218, pt. 1, at 20, 26 (2005)).

Under SORNA, “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides [or] where the offender is an employee.” 42 U.S.C. § 16913(a). In turn, SORNA, defines “sex offender” as “an individual who was convicted of a sex offense.” Id. § 16911(1) (emphasis added). Roberson concedes that the crime to which he pled guilty in March 1998 is a “sex offense.” He does not contest that he traveled and had not registered. The question is whether, under the language of SORNA, he “was convicted” of that crime for conduct before the vacation of that conviction.

We start with the language of the statute. In Lewis, the Supreme Court interpreted a statute in a similar regulatory system, where the federal crime of being a felon in possession of a firearm depended on the defendant being a person who “has been convicted by a court ... of a felony.” 445 U.S. at 60, 100 S.Ct. 915 (internal quotation marks omitted) (quoting Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90–351, 82 Stat. 197, Tit. VII, § 1202(a)(1)). It was faced with a claim that the predicate felony was based on a constitutional error under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which the Court assumed to be true. Nonetheless, it affirmed the conviction under section 1202(a)(1) and rejected a claim that its reading violated the Constitution. The Court characterized the language “convicted by a court” as “unambiguous[ ]” and “sweeping.” Lewis, 445 U.S. at 60, 100 S.Ct. 915. The Court looked to the plain language and then considered the fact that the statute contained numerous exceptions, none of which provided an exception for convictions which might turn out later to be invalidated for any reason. Id. at 61–62, 100 S.Ct. 915. The Court also contrasted section 1202(a)(1) with other statutes which explicitly provided a defense of challenging the validity or constitutionality of a predicate felony. Id. at 62, 100 S.Ct. 915.

As for the sparse legislative history, the Court concluded it reflected “an intent to impose a firearms disability on any felon based on the fact of conviction.” Id. It stressed the fact of conviction, and not a “valid” conviction. Id.

In Mendoza–Lopez, the Supreme Court considered a similarly worded statute which made it a felony to enter the country after having been “deported.” The Court held that “deported” could not be read to refer just to “lawful” deportations, despite serious constitutional concerns, which are not at issue in this case.³481 U.S. at 833–837, 841–42, 107 S.Ct. 2148; see also Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575, ...