United States v. Thompson

• Decision Date: 21 January 2016
• Docket Number: No. 15–40370.,15–40370.
• Citation: 811 F.3d 717
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Larry Wayne THOMPSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

811 F.3d 717

UNITED STATES of America, Plaintiff–Appellee
v.
Larry Wayne THOMPSON, Defendant–Appellant.

No. 15–40370.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 2016.

811 F.3d 720

William Richardson Tatum, Esq. (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Sherman, TX, for Plaintiff–Appellee.

Seth Kretzer (argued), Law Offices of Seth Kretzer, Houston, TX, Denise S. Benson, Esq., Assistant Federal Public Defender, Federal Defender's Office, Sherman, TX, for Defendant–Appellant.

Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant–Appellant Larry Wayne Thompson appeals his conviction for failure to register as a sex offender. We affirm.

I.

The relevant facts, viewed in the light most favorable to the jury verdict,¹ are as follows:

811 F.3d 721

In 2000, Thompson pleaded guilty to eight counts of possession of child pornography in federal court in the Northern District of Oklahoma. The court sentenced Thompson to a term of imprisonment. The court also required Thompson to register as a sex offender.

After completing his sentence, Thompson registered as a sex offender in Oklahoma. However, in 2007, Thompson moved from Oklahoma to Corpus Christi, Texas, without updating his sex offender registration. Accordingly, a warrant issued for Thompson's arrest.

The United States located Thompson in Mexico, returned him to the United States, and indicted him for failing to update his registration. Thompson again pleaded guilty and served another term of imprisonment. Once again, the court required Thompson, as a condition of his sentence, to "register with the sex offender registration agency in any state where the defendant resides, is employed, carries on a vocation, or is a student, as directed by the probation officer."

After completing his second prison sentence, Thompson moved into an apartment complex in Corpus Christi with a roommate named Matthew Hunt. Thompson registered as a sex offender in Corpus Christi.

In the summer of 2013, Hunt began making plans to move from Corpus Christi to McKinney, Texas, where his son lived. Thompson "decided it would be best for him to come with" Hunt. Thus, after two or three months of planning, Thompson and Hunt decided to leave Corpus Christi in September 2013.

Thompson rented a U–Haul truck in his own name to accomplish the move. Notably, Thompson did not purchase a round-trip rental; instead, he purchased a one-way rental from Corpus Christi to McKinney.

Thompson and Hunt removed the majority of their belongings from their Corpus Christi apartment and loaded them into the U–Haul truck. They then left their apartment keys in the complex's office, drove away, and never returned to the complex. Neither Thompson nor Hunt left a forwarding address with the apartment complex. The complex eventually leased Thompson and Hunt's former unit to new tenant.

Crucially, Thompson never updated his sex offender registration after leaving Corpus Christi or arriving in McKinney.

Thompson and Hunt applied for an apartment in McKinney, but when they arrived in McKinney the apartment was unavailable. Throughout the month of September, Thompson and Hunt alternated between residing at a hotel in McKinney and camping in various McKinney parks.

A few days after Thompson and Hunt arrived in McKinney, an administrative assistant at Thompson's sex offender treatment center in Corpus Christi called Thompson to remind him that he had an upcoming counseling appointment. Thompson replied that "he was not interested" in attending the therapy appointment and that "he was not going to appear." Thompson then hung up the phone. As a result of Thompson's refusal to comply with the conditions of his sentence, a warrant issued for his arrest.

Several days later, the City of McKinney's Parks Department contacted the city's police department to report that a U–Haul truck was illegally "parked off of

811 F.3d 722

the pavement on the grass" in a park on the city's north side. A McKinney police officer arrived at the scene and encountered Thompson sitting at a nearby picnic table. The officer ran a background check on Thompson and discovered that he had previously been convicted of a child pornography offense in Oklahoma and that he had an outstanding warrant for his arrest. Thompson told the officer that he had not updated his registration after leaving Corpus Christi.

A federal grand jury in the Eastern District of Texas issued a one-count indictment charging Thompson with failure to register as a sex offender as required by the Sex Offender Registration & Notification Act ("SORNA"). The case proceeded to trial and the jury found Thompson guilty. Thompson now appeals.

II.

SORNA's registration provision, 42 U.S.C. § 16913, requires a convicted sex offender to "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."² "A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person ... and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry."³

SORNA also contains a separate penalty provision, 18 U.S.C. § 2250(a), which provides:

Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), 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 the Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

Thus, "a sex offender whose underlying conviction was obtained pursuant to state law and who never crosses state lines, international borders, or the boundaries of Indian country, cannot be criminally liable for failure to comply with SORNA."⁴ By contrast, "[o]ne convicted of federal sex offenses is liable for his knowing failure to register or update his registration regardless of whether he travels in interstate or foreign commerce."⁵

Thompson previously committed a sex offense under federal, not state, law.⁶ He did not travel in interstate commerce; instead, he failed to update his registration after relocating from one city in Texas to a different city in the same State. Thus,

811 F.3d 723

§ 2250(a)(2)(A), but not § 2250(a)(2)(B), criminalizes Thompson's failure to update his registration after his intrastate relocation.

III.

Thompson challenges his conviction on several grounds. For the following reasons, we reject all of Thompson's challenges.

A.

Thompson first raises an as-applied constitutional challenge to SORNA. He claims that the Necessary and Proper Clause of the U.S. Constitution⁷ does not authorize Congress to criminalize his "purely intrastate conduct"—namely, relocating from one city in Texas to another city in Texas without updating his sex offender registration. According to Thompson, Congress may only criminalize a sex offender's intrastate conduct if the defendant either (1) "served in the armed forces" or (2) committed an offense on "federal property." Thompson does not fall into either of those categories. Thus, claims Thompson, the district court should have dismissed the indictment. Our standard of review is de novo.⁸

Thompson's constitutional challenge is meritless. The Courts of Appeals have repeatedly upheld SORNA's registration and penalty provisions under the Necessary and Proper Clause,⁹ even when the defendant neither served in the military, nor committed an offense or lived on federal property, nor moved within interstate or foreign commerce.¹⁰

The Tenth Circuit's decision in United States v. Brune is particularly illustrative. Brune was previously convicted for possessing child pornography in violation of 18 U.S.C. § 2252 —just like Thompson.¹¹ As far as the Tenth Circuit's opinion reveals, Brune never served in the military, did not commit a sex offense on federal property, and continually resided within the boundaries of a single State—just like Thompson.¹² Brune pleaded guilty to failure to register as a sex offender under SORNA.¹³ On appeal, Brune challenged SORNA's constitutionality.

811 F.3d 724

The Brune court ruled that "SORNA's registration requirements cannot be constitutionally challenged under the Necessary and Proper Clause."¹⁴ "[I]n determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, we look to see whether the statute constitutes a means that is rationally...