May 21, 2019

Tenth Circuit: Warrantless Search Condition of Supervised Release Not Limited to Sex Offenders

The Tenth Circuit Court of Appeals issued its opinion in United States v. Flaugher on Friday, November 13, 2015.

In 2006, Walter Flaugher pleaded guilty to one count of conspiracy to distribute methamphetamine and was sentenced to 57 months’ imprisonment followed by five years of supervised release. In 2014, the U.S. Probation Office filed a petition to revoke his supervised release based on several alleged violations. Flaugher stipulated to one of the violations, use of methamphetamine. The district court revoked his supervised release, sentencing him to 12 months and one day in prison followed by three years of supervised release. The district court also imposed a supervised release condition of submission to warrantless search, over Flaugher’s counsel’s objection.

Flaugher appealed, contending 18 U.S.C. § 3583(d) prohibits district courts from imposing the warrantless search condition other than for felons required to register under SORNA. The Tenth Circuit disagreed. The Tenth Circuit rejected Flaugher’s argument that the warrantless search provision applicable to defendants subject to SORNA is precluded for non-felons or felons who are not subject to SORNA. The Tenth Circuit noted that § 3583(d)’s “any other condition” provision specifically allows district courts to impose any condition of supervised release it deems necessary, as long as three limitations are met. This language does not preclude application of a warrantless search condition. The Tenth Circuit further noted that there is nothing in the SORNA warrantless search condition that limits it to sex offenders. The Tenth Circuit found that Flaugher’s proposed construction would render some of the text void or superfluous, and found that its own reading gave full effect to each of the words.

The Tenth Circuit affirmed the district court’s imposition of the warrantless search condition of supervised release.

Tenth Circuit: SORNA is a Proper Exercise of Congress’s Commerce Clause Power

The Tenth Circuit Court of Appeals issued its opinion in United States v. White on Monday, April 6, 2015.

James White took indecent liberties with the 7-year-old daughter of his girlfriend in North Carolina in 2005. When the Sex Offender Registration and Notification Act (SORNA) was implemented in 2007, it applied to all convictions, including those that occurred prior to its passage. In 2013, Mr. White moved from Oklahoma to Texas without updating his SORNA registration or registering in Texas. He was charged in Oklahoma with failing to register as a sex offender. 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 his motion, and Mr. White entered a conditional guilty plea, reserving his right to appeal the denial of the motion to dismiss and his sentence.

The district court adopted the probation office’s Presentence Investigation Report (PSR), which treated Mr. White as a Tier III offender and assigned an offense level of 13 after credits. His sentencing range was 18 to 24 months, and the district court sentenced him to 18 months, overruling his objection to the tier classification. The district court also imposed special conditions of supervised release, including prohibiting Mr. White from being at a residence where any person under the age of 18 reside without prior approval from the probation office and requiring a responsible adult who was aware of Mr. White’s history to be present at all such approved visits. Mr. White timely appealed, reiterating his argument that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause. Mr. White also appealed his sentence, arguing he was incorrectly classified as a Tier III offender and challenging the special conditions.

The Tenth Circuit first addressed the Commerce Clause argument, noting it rejected a similar argument in United States v. Hinckley. Mr. White argued that Hinckley was wrongly decided and that it was superseded by the Supreme Court in National Federation of Independent Businesses v. Sebelius (NFIB). The Tenth Circuit first noted that in Hinckley it held the third prong of the Commerce Clause was unnecessary to determine SORNA’s constitutionality since it was confirmed by the first two prongs. Next, the Tenth Circuit examined NFIB in detail, distinguishing its holding in Hinckley because NFIB discussed only the third prong of the Commerce Clause. The Tenth Circuit found that SORNA is a proper exercise of Congress’s Commerce Clause power.

Turning next to Mr. White’s argument that SORNA violated the Ex Post Facto Clause, the Tenth Circuit similarly disagreed, relying on prior Tenth Circuit precedent in United States v. Lawrance, which squarely addressed the same issue. Lawrance upheld SORNA because it is a regulatory statute and criminal penalties apply only for future conduct, not retroactively. The Tenth Circuit then turned to Mr. White’s argument that SORNA violates the Tenth Amendment by directing state officials to implement a federally mandated program. The Tenth Circuit found no constitutional violation, because states retain the authority to opt-out of regulation under SORNA even if they must forego federal funding to do so.

Mr. White’s fourth contention on appeal averred that he was wrongly classified as a Tier III offender and therefore his sentence is procedurally unreasonable. The Tenth Circuit agreed. The Tenth Circuit found the district court should have applied a categorical approach in order to determine Mr. White’s sentencing tier, but it instead applied a circumstance-specific approach, rendering Mr. White’s sentence procedurally unreasonable and requiring reversal. On remand, the Tenth Circuit directed the district court to classify Mr. White as a Tier I offender. The Tenth Circuit addressed Mr. White’s arguments related to the special conditions in order to guide the district court on remand, and noted that further findings were necessary to determine whether Mr. White had a parental or parental-like relationship with his minor grandchildren and nieces that would require express findings of compelling circumstances.

The Tenth Circuit affirmed the district court’s denial of Mr. White’s motion to dismiss but reversed his sentence, remanding for further findings.

Tenth Circuit: Sex Offender Must Keep Registration Current Even When Residing in Non-SORNA Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nichols on Tuesday, December 30, 2014.

Lester Nichols is a convicted sex offender who moved from the United States to Manila, Philippines, without updating his information on the federal sex offender registry. He was arrested in the Philippines one month later and deported to the United States, where he was charged with and indicted for failure to update his registration information in violation of the Sex Offender Notification and Registration Act (SORNA). Mr. Nichols moved to dismiss the indictment, arguing that SORNA did not require him to register in a non-SORNA jurisdiction, and also contesting as unconstitutional SORNA’s delegation to the Attorney General to determine its application to sex offenders whose predicate offense occurred prior to SORNA’s enactment.

The district court relied on Tenth Circuit precedent in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011), and rejected Nichols’ first argument. The district court also rejected Nichols’ nondelegation argument, noting that despite the lack of binding Tenth Circuit precedent, dicta from the Tenth Circuit and precedent from other circuits has upheld SORNA’s delegation of authority. Nichols appealed on both points.

The Tenth Circuit first addressed the requirement for sex offenders to register in non-SORNA jurisdictions. In Murphy, the defendant was released from prison in Utah and moved to Belize. The Tenth Circuit analyzed SORNA’s registration requirements and decided that leaving Utah triggered the requirement for the offender to register, even though he moved to a non-SORNA jurisdiction. Nichols contended that the dissent in Murphy should guide the Tenth Circuit in his case, but the court could not overturn its prior precedent without an intervening Supreme Court decision or en banc consideration, and affirmed the district court’s determination on this issue.

Nichols next argued that Congress’s delegation of authority to the Attorney General to determine its preenactment application was unconstitutional, and the Tenth Circuit should apply a heightened “meaningful constraint” standard in evaluating the constitutionality. The Tenth Circuit first determined that Congress clearly delineated the general policy on which SORNA is based, and the policy conveyed to the Attorney General intelligible guiding principles. Congress also clearly delineated the boundaries of the Attorney General’s authority, and the Tenth Circuit found that the delegation satisfied the Supreme Court’s “intelligible principles” test. As to Nichols’ argument that the court should apply the more stringent “meaningful constraint” test, since the delegation contemplated criminal sanctions, the Tenth Circuit disagreed. The meaningful constraint test has only been referenced in a handful of cases, and no specific factors or substantive analytical framework has been developed, making application nearly impossible, whereas the intelligible principles test is well established.

The Tenth Circuit affirmed Nichols’ conviction.