United States v. Charles Goodwin, Case No. 12-2921
After pleading guilty to failing to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA), the defendant was sentenced to 27-months imprisonment and a life term of supervised release, subject to conditions. The defendant made three (3) arguments on appeal: SORNA involves an unconstitutional delegation of legislative authority; the district court miscalculated the supervised release Guideline; and certain supervised release conditions were improvidently imposed.
Constitutionality of SORNA
The law grants the Attorney General the authority to specify the applicability of the registration requirement to sex offenders convicted before the 2006 enactment of SORNA. In July 2007, the Attorney General made a regulation that SORNA applied to all pre-enactment sex offenders. A delegation is “constitutionally sufficient if Congress clearly delineates  the general policy,  the public agency which is to apply it, and  the boundaries of this delegated authority.” Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946).
SORNA directs the Attorney General to exercise his discretion in a manner consistent with the intelligible principle of “protecting the public” from sex offenders and establishing a “comprehensive” registry; the statute identifies the Attorney General as the specific official to exercise this delegated authority; and the Attorney General’s discretionary authority is narrowly restricted to determining the applicability of SORNA to offenders whose crimes predate the statute’s enactment.
In Carr v. United States, 560 U.S. 438 (2010), the Supreme Court held that the SORNA section imposing criminal liability for failure to adhere to registration requirements does not apply to sex offenders whose interstate travel occurred before SORNA’s effective date. While Carr overruled the Seventh Circuit’s decision in United States v. Dixon, 551 F.3d 578 (7th Cir. 2008), which in part held that Congress did not violate separation of powers when it delegated for the Attorney General authority to specify SORNA’s applicability, it did so on other grounds and expressly declined to comment on the Court’s finding in Dixon that SORNA does not violate the Constitution. Dixon remains good law on the delegation issue.
The term of supervised release
The probation department relied on Guideline §§ 5D1.1(b)(2) to advise the Court that the Guidelines advise a supervisory period of five (5) years to life. The department recommended life supervision, which the Court imposed as a within Guideline term. Without objection in the district court, the defense argued plain error on appeal, and the government agreed, which the Court questioned at oral argument. But in the opinion, the Court came around.
Since Guideline §5D1.1(b)(2) provides for a maximum term of life imprisonment for a “sex offense,” the question hinges on whether the defendant’s failure to register under 18 U.S.C. §2250 qualifies as a sex offense.
Application Note 1 to the Guideline defines a sex offense as a crime “perpetrated against a minor” that includes offenses under 18 U.S.C. §2250. It cannot be derived from the Guideline that if the original offense that gave rise to the registration requirement were perpetrated against a minor, then the subsequent offense of failure to register should be considered a sex offense. The Guidelines and commentary offer no assistance as to how courts are to determine whether a given failure to register was perpetrated against a minor.
While the Court ordinarily grants “controlling weight” to the Sentencing Commission’s Guidelines as expressed in Application Notes, the Court does not defer to interpretations that are “plainly erroneous or inconsistent” with the relevant Guideline, federal law, or the Constitution. The illogic of the implication that registration offenses can be perpetrated against minors indicates that, to the extent that the Note purports to include failures to register as sex offenses, this portion of the Note is plainly erroneous as a definition of “sex offense” for purposes of U.S.S.G. § 5D1.2(b)(2).
If the Commission does in fact consider some failures to register to be sex offenses, it should say so plainly, and provide courts with guidance as to which failures to register qualify. Moreover, as a portion of the Adam Walsh Act, 18 U.S.C. § 3583(k), mandates that registry violations should be eligible for lifetime terms of supervised release regardless of whether they involve a minor victim, the Guidelines should explain the circumstances under which that outcome is within range.
In this defendant’s case, there was no specific victim of his failure to register. Nothing about this defendant’s failure to register demonstrates that it is a sex offense. The properly calculated advisory Guidelines “range” for this defendant’s offense appears to actually be a point: five years pursuant to 18 U.S.C. §3583(k).
In reaching the conclusion that errors concerning the application of U.S.S.G. § 5D1.2(b)(2) warrant re-sentencing, the district court is still authorized to impose a lifetime term of supervised release because 18 U.S.C. § 3583(k) clearly authorizes any term of years from five to life. But if on remand the district court imposes a supervised release term greater than five years, this term will have to be explained by something other than the currently available five-year Guidelines range.
Supervised release conditions
Special conditions of supervised release must meet three (3) requirements. First, they must be reasonably related to the penological purposes set forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D). See 18 U.S.C. § 3583(d). Specifically, special conditions “must be reasonably related to (1) the defendant’s offense, history and characteristics; (2) the need for adequate deterrence; (3) the need to protect the public from further crimes of the defendant; and (4) the need to provide the defendant with treatment. See 18 U.S.C. § 3553(a)(1)-(2). Second, they cannot involve a greater deprivation of liberty than is reasonably necessary to achieve the goals of deterrence, incapacitation, and rehabilitation. See 18 U.S.C. § 3583(d)(2). Third, the conditions must be “consistent with any pertinent statements issued by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3). The Court also noted that supervised release fulfills rehabilitative ends, distinct from those served by incarceration. Instead of being a significant barrier to a full reentry into society, conditions should facilitate an offender’s transition back into everyday life of the community.
Setting aside the issue of standard of review (the government claiming plain error because the defense did not object to the imposition of conditions at the time of the ruling, while the defense claiming abuse of discretion because it did not have an opportunity to object because the PSR did not mention the conditions, citing FED. R. CRIM. P. 51(b)), the Court vacated most of the special conditions and remanded.
One condition addressed computer-related monitoring and searches and other warrantless searches of the defendant’s person and property by his probation officer. The Court found these broad restrictions were not reasonable related to the defendant’s offense, history or personal characteristics, or reasonably necessary to furthering the deterrence, public protection, and rehabilitative goals articulated in 18 U.S.C. § 3583(d)(2). The record did not show a computer played any role in either the underlying or the failure to register offense. There is no indication the defendant ever used a computer to commit any crime. The district court must provide some justification for these particular conditions.
Another condition prohibited the defendant from having any contact with minors, except in the presence of an adult aware of the prior sex offense and who has been approved by the probation office. Since there was no evidence in the record of incidents involving the defendant and minors in the almost two (2) decades since the underlying offense, the Court was skeptical such a sweeping condition could be reasonably related to the defendant’s offense, history and characteristics. The Court also held that “given the potentially severe restrictions on [the defendant’s] day-to-day life that this condition imposes, the district court’s lack of explanation of why it thinks this condition involves no greater deprivation of liberty than necessary to achieve the penological goals stated in 18 U.S.C. § 3553(a) is troubling.” The district court must provide an explanation how this condition is reasonably related to the offense and background or the goals of punishment, involving no greater deprivation of liberty than reasonably necessary.
Another condition prohibited the defendant from possessing material that depicts or alludes to sexual activity. The Court said that since the defendant’s failure to register and underlying offense has nothing to do with this conduct, it is unclear how this condition is reasonably related to any of the considerations set forth in 18 U.S.C. § 3583(d). The Court added the vagueness of this condition is also fatal because, if read literally, “the inclusion of this term could block [the defendant] from possessing much of the Western literary canon—or arguably even from possessing a slip copy of this opinion.”
Another condition placed content restrictions on the defendant’s use of the internet. While the condition’s reference to child pornography seems justifiable, it does not absolve the district court of the responsibility to provide an explanation. And since the content restrictions also related to sexually arousing material that is otherwise legal, this conditions suffered from the same over-breadth and vagueness infirmities as the prior condition.
Demonstrating the Court’s concern about the propriety of supervised release conditions, the Court sua sponte vacated two (2) additional supervised release conditions that were not even challenged on appeal: participation in sex offender treatment and mental health counseling. As with the other conditions, the Court noted the district court imposed these conditions without explanation. Given that the defendant’s instant offense is for a failure to register, the penological purpose of these treatment and counseling programs is far from clear.
So the Court affirmed the SORNA conviction, but vacated the supervised release portion of the sentence, remanding to the district court for reassessment of the length of supervised release and any special conditions imposed during this period.