United States v. White

Decision Date06 April 2015
Docket NumberNo. 14–7031.,14–7031.
Citation782 F.3d 1118
PartiesUNITED STATES of America, Plaintiff–Appellee, v. James William WHITE, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Carl Folsom, III, Assistant Federal Public Defender (Julia L. O'Connell, Federal Public Defender, with him on the brief), Muskogee, Oklahoma, for Appellant.

Edward Snow, Assistant United States Attorney (Mark F. Green, United States Attorney, and Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, for Appellee.

Before KELLY, LUCERO, and McHUGH, Circuit Judges.

McHUGH, Circuit Judge.

I. INTRODUCTION

James White is a convicted sex offender who failed to keep his registration current after he moved from Oklahoma to Texas. He entered a conditional guilty plea admitting to violating the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), but reserving five issues for appeal. Three are challenges to his conviction on the grounds that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause of the U.S. Constitution. Next, Mr. White attacks his sentence, claiming the district court erred: (1) by calculating his Sentencing Guidelines range as if he were a tier III sex offender; and (2) by imposing special conditions of supervised release limiting his contact with his minor grandchildren and nieces. We hold that SORNA is the product of a valid exercise of Congress's Commerce Clause power, and that it does not violate the Tenth Amendment or the Ex Post Facto Clause. But we conclude the district court erred in classifying Mr. White as a tier III sex offender and vacate Mr. White's sentence and conditions of supervised release. We therefore affirm Mr. White's conviction but remand to the district court for resentencing.

II. BACKGROUND

Mr. White took indecent liberties with a child in North Carolina on February 6, 2005, in violation of section 14–202.1 of the North Carolina Criminal Code. On July 27, 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA). Mr. White was indicted by the State of North Carolina on December 11, 2006, and convicted on February 14, 2007. On February 28, 2007, two weeks after Mr. White's conviction, the U.S. Attorney General issued a rule extending the requirements of SORNA “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. Thus, although Mr. White committed his sex offense before SORNA was enacted, he is required to comply with its registration requirements.

In 2013, Mr. White moved from Oklahoma to Texas without registering in Texas or updating his Oklahoma sex offender registration as mandated by SORNA. He was subsequently indicted in Oklahoma for failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a)(1), (a)(2)(B), and (a)(3).

Mr. White moved to dismiss the indictment, arguing that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. The district court denied Mr. White's motion to dismiss and Mr. White entered a conditional guilty plea, reserving his right to appeal both the denial of his motion to dismiss and his sentence.

Prior to sentencing, the probation office prepared a Presentence Investigation Report (PSR). The PSR treated Mr. White as a “tier III” sex offender under 42 U.S.C. § 16911, giving him a base offense level of 16. U.S.S.G. § 2A3.5 ; see 42 U.S.C. § 16911 (defining tier I, tier II, and tier III sex offenders). It then credited Mr. White with acceptance of personal responsibility for the offense and assigned him a three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b).1 Based on these assumptions, the PSR calculated Mr. White's total offense level at 13. Mr. White's prior criminal history placed him in criminal history category III, which when combined with his offense level, resulted in a United States Sentencing Guidelines (Guidelines) range of 18 to 24 months of imprisonment.

Mr. White objected to the PSR, arguing he qualified as a “tier I” sex offender, not a “tier III” sex offender. If Mr. White is correct, his base offense level would be 12 and his total offense level 10. Combined with his criminal history category of III, these revised numbers would result in a Guidelines sentencing range of 10 to 16 months' imprisonment.

At the sentencing hearing, the district court overruled Mr. White's objection to his tier classification. In reaching its conclusion that Mr. White qualifies as a tier III sex offender, the district court relied on allegations in the state indictment and documents from the state prosecution indicating that the victim was the seven-year-old daughter of Mr. White's girlfriend and that the incident involved contact between the victim and Mr. White. Based on these facts, the district court held Mr. White's state offense was comparable to the federal crime of abusive sexual contact against a minor under thirteen, thereby placing him within the tier III category. See 42 U.S.C. § 16911 (defining tier III sex offenders by comparing their sex offenses to enumerated federal crimes). The district court then sentenced Mr. White at the low end of the Guidelines range, to 18 months' imprisonment.

The district court also imposed special conditions of supervised release. The third special condition prohibited Mr. White from “be[ing] at any residence where children under the age of 18 are residing without the prior written permission of the U.S. Probation Office.” The fourth special condition prohibited Mr. White from “be[ing] associated with children under the age of 18 except in the presence of a responsible adult who is aware of the defendant's background and current offense, and who has been approved by the U.S. Probation Officer.”

Mr. White objected to the third and fourth special conditions of supervised release, claiming they were a greater deprivation of liberty than necessary. In particular, he objected to the condition's infringement on access to his minor grandchildren and nieces. Mr. White also objected to the special conditions on the ground the district court had unconstitutionally delegated the judiciary's Article III sentencing power to the probation officer. The district court overruled each of Mr. White's objections to the special conditions.

Mr. White now appeals from his conviction and from his sentence for the same reasons advanced in the district court.

III. DISCUSSION

We begin our analysis by addressing Mr. White's claims that his conviction should be overturned because SORNA violates the U.S. Constitution. We then consider his challenges to the sentence and the conditions of supervised release.

A. The Constitutionality of SORNA

We review the district court's denial of Mr. White's motion to dismiss the indictment on constitutional grounds de novo. See United States v. Brune, 767 F.3d 1009, 1015 (10th Cir.2014). “As a part of our de novo review, however, we must presume that the statute is constitutional.” Id. (internal quotation marks omitted). We may “invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v. Morrison, 529 U.S. 598, 607, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

1. The Commerce Clause

Mr. White first claims his conviction violates the Commerce Clause. Although he acknowledges that we rejected a Commerce Clause challenge to SORNA in United States v. Hinckley. 550 F.3d 926, 939–40 (10th Cir.2008), abrogated on other grounds by Reynolds v. United States, –––U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), Mr. White argues that our decision has been superseded by subsequent authority from the United States Supreme Court.2 Specifically, he contends the Supreme Court's decision in National Federation of Independent Business v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (NFIB ), calls into question our decision in Hinckley. For the following reasons, we disagree.

To put our analysis in context, we begin with an overview of the Commerce Clause and our application of that jurisprudence in Hinckley. Next, we discuss the Supreme Court's decision in NFIB and explain why it is not controlling of the Commerce Clause issue presented here.

The Constitution authorizes Congress to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. Art I, § 8, cl. 3. The Supreme Court has identified three areas that Congress may regulate under the Commerce Clause: (1) “the channels of interstate commerce,” (2) “persons or things in interstate commerce,” and (3) “those activities that substantially affect interstate commerce.” NFIB, 132 S.Ct. at 2578 ; United States v. Lopez, 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) ; see also United States v. Morrison, 529 U.S. 598, 608–09, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000).

The bounds of Congress's power to regulate the third field—activities that substantially affect interstate commerce—have been defined by the Supreme Court jurisprudence. In Lopez, the Court struck down a federal statute prohibiting possession of a gun in a school zone because the activity regulated was purely intrastate and was not an economic activity which substantially affected interstate commerce. 514 U.S. at 561–63, 115 S.Ct. 1624. Five years later, the Court struck down provisions of the Violence Against Women Act providing a federal civil remedy for victims of gender-motivated violence for the same reasons: the regulated violence was purely intrastate and it did not substantially affect interstate commerce. Morrison, 529 U.S. at 609–612, 120 S.Ct. 1740. In both cases, the Supreme Court considered it significant that neither statute contained an express jurisdictional element requiring some connection with interstate commerce. Id. at 611–12, 120 S.Ct. 1740, Lopez, 514 U.S. at 562, 115 S.Ct. 1624.

In our decision in Hinckley, the...

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