Categorical Approach Applies to Determining SORNA Tier Except for Victim Age; Remand Necessary to Address Restrictive SR Conditions
U.S. v. White, 2015 WL 1516385 (4/6/15) (Okl.) (Published) - The 10th holds determining what tier level a SORNA defendant is in depends on the categorical approach except when it comes to the age of the victim. In defining Tier III and Tier II offenses in 42 U.S.C. ยง 16911(3) & (4), Congress requires a comparison to offenses as described in particular statutes. This indicates Congress wanted courts to review the elements of the offenses, not what the defendant's specific acts were. On the other hand, the reference in the definitions to the age of the victim, and the purpose evidenced in the legislative history to punish child sex offenders more severely, indicates the court must consider the specific circumstances to determine the victim's age. In this case, Mr. White was previously convicted in North Carolina of taking indecent liberties with a child under sixteen. Under the relevant statute, neither a sexual act nor an offensive touching was required, e.g. a graphic letter would be sufficient. All the relevant federal statutes referred to in the tier II and III definitions require a sexual act or offensive touching. Mr. White is therefore a tier I offender. The district court erred when it considered his actual conduct in assigning him to tier III. That error resulted in a higher guideline range than was appropriate.
The 10th also required a remand to address the special supervised-release conditions that prohibited Mr. White from contact with his grandchildren and nieces, absent probation approval and adult supervision. The 10th observes that a due process liberty interest in familial associations includes interests other than parental ones. How strong that interest is depends on the relationship between the offender and the children. If the relationship is custodial, then the interest would be similar to that of a parent. The less the relationship resembles a parental one, the less is the liberty interest. On remand, the district court will have to determine what the relationships are and accord a level of constitutional protection proportional to the significance of the liberty interest. The 10th reminds the court it should consider the length of time that has passed since Mr. White's prior conviction and any conduct, or lack thereof, that is predictive of his future conduct. The 10th holds that, regardless of the extent of the liberty interest involved, the district court did not improperly delegate its powers to the probation office. The supervised release term was only 5 years and the court ordered that the probation office approve contact unless Mr. White posed a safety risk and noted its expectation that the probation office would approve family members as adult supervisors.
National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012) (NFIB"), otherwise known as the Obamacare case, does not change the 10th's opinion that Congress properly enacted SORNA pursuant to the Commerce Clause. The five justices in NFIB who found the Commerce Clause did not countenance the Affordable Care Act ("ACA") addressed the third area where the Commerce Clause operates: where activities substantially affect interstate commerce. But SORNA is copasetic with the Commerce Clause because it is consistent with the first and second areas the Commerce Clause operates in: regulating (1) the channels of interstate commerce; and (2) persons or things in interstate commerce. In SORNA the failure to register is coupled with interstate travel, at least in this case, which involved Mr. White traveling from one state to another without updating his registration. SORNA keeps interstate commerce free of yucky "immoral and injurious uses." The 10th doesn't buy Mr. White's contention that SORNA regulates inactivity, just as the ACA regulates the failure to get health insurance. The 10th feels that it must consider SORNA's "interstate travel" enforcement provision as well as its civil intrastate aspects.
The 10th sticks with its holding in U.S. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), that SORNA does not have an ex post facto problem, even though a number of state courts have held their sex-offender registration statutes violate the Ex Post Facto Clause. And the 10th believes SORNA is consistent with the 10th Amendment as well. SORNA doesn't conscript state officials to do anything. It merely incentivizes by conditioning federal funding on implementation of a federal mandate. It doesn't matter that Oklahoma has not implemented SORNA.
The 10th also required a remand to address the special supervised-release conditions that prohibited Mr. White from contact with his grandchildren and nieces, absent probation approval and adult supervision. The 10th observes that a due process liberty interest in familial associations includes interests other than parental ones. How strong that interest is depends on the relationship between the offender and the children. If the relationship is custodial, then the interest would be similar to that of a parent. The less the relationship resembles a parental one, the less is the liberty interest. On remand, the district court will have to determine what the relationships are and accord a level of constitutional protection proportional to the significance of the liberty interest. The 10th reminds the court it should consider the length of time that has passed since Mr. White's prior conviction and any conduct, or lack thereof, that is predictive of his future conduct. The 10th holds that, regardless of the extent of the liberty interest involved, the district court did not improperly delegate its powers to the probation office. The supervised release term was only 5 years and the court ordered that the probation office approve contact unless Mr. White posed a safety risk and noted its expectation that the probation office would approve family members as adult supervisors.
National Federation of Independent Business v. Sibelius, 132 S. Ct. 2566 (2012) (NFIB"), otherwise known as the Obamacare case, does not change the 10th's opinion that Congress properly enacted SORNA pursuant to the Commerce Clause. The five justices in NFIB who found the Commerce Clause did not countenance the Affordable Care Act ("ACA") addressed the third area where the Commerce Clause operates: where activities substantially affect interstate commerce. But SORNA is copasetic with the Commerce Clause because it is consistent with the first and second areas the Commerce Clause operates in: regulating (1) the channels of interstate commerce; and (2) persons or things in interstate commerce. In SORNA the failure to register is coupled with interstate travel, at least in this case, which involved Mr. White traveling from one state to another without updating his registration. SORNA keeps interstate commerce free of yucky "immoral and injurious uses." The 10th doesn't buy Mr. White's contention that SORNA regulates inactivity, just as the ACA regulates the failure to get health insurance. The 10th feels that it must consider SORNA's "interstate travel" enforcement provision as well as its civil intrastate aspects.
The 10th sticks with its holding in U.S. v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), that SORNA does not have an ex post facto problem, even though a number of state courts have held their sex-offender registration statutes violate the Ex Post Facto Clause. And the 10th believes SORNA is consistent with the 10th Amendment as well. SORNA doesn't conscript state officials to do anything. It merely incentivizes by conditioning federal funding on implementation of a federal mandate. It doesn't matter that Oklahoma has not implemented SORNA.
posted by Anonymous at 5:00 PM
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