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United States v. Hester

December 16, 2009

UNITED STATES OF AMERICA, APPELLEE,
v.
TRAVIS S. HESTER, DEFENDANT-APPELLANT.



SYLLABUS BY THE COURT

Defendant-appellant Travis S. Hester appeals from a September 16, 2008 judgment entered in the United States District Court for the Northern District of New York (Sharpe, J.), convicting him, following a guilty plea, of two counts of traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a), and one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). The district court sentenced Hester principally to a term of imprisonment of 37 months. On appeal, Hester argues that (1) his prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) violated his right to due process of law under the Fifth Amendment to the U.S. Constitution; (2) 18 U.S.C. § 2250(a) and the registration requirements of SORNA, 42 U.S.C § 16913(a), violate the Commerce Clause of the U.S. Constitution; and (3) 18 U.S.C. § 2250(a) is unconstitutionally vague. Hester's due process argument presents a question of first impression for this Court. We conclude, as have all of our sister circuits that have considered the issue, that prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) does not violate the right to due process of law. With respect to Hester's two remaining arguments, we conclude that those were waived pursuant to the plea agreement.

Affirmed.

Per curiam.

Submitted: June 16, 2009

Before: WINTER, CABRANES, and HALL, Circuit Judges.

Defendant-appellant Travis S. Hester ("defendant" or "Hester") appeals from a September 16, 2008 judgment entered in the United States District Court for the Northern District of New York (Sharpe, J.), convicting him, following a guilty plea, of two counts of traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a), and one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). As part of the plea agreement, Hester expressly agreed to waive his right to appeal his conviction and sentence if he received a sentence of 51 months' imprisonment or less, but reserved the right to appeal the district court's February 7, 2008 order denying his motion to dismiss the indictment.*fn1 The district court sentenced Hester principally to a term of 37 months' imprisonment. On appeal, Hester argues that (1) his prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) violated his right to due process of law under the Fifth Amendment of the U.S. Constitution; (2) 18 U.S.C. § 2250(a) and the registration requirements of SORNA, 42 U.S.C. § 16913(a), violate the Commerce Clause of the U.S. Constitution; and (3) 18 U.S.C. § 2250(a) is unconstitutionally vague. Hester's due process argument presents a question of first impression for this Court. For the reasons stated below, we conclude, as have all of our sister circuits that have considered the issue, that prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) does not violate the right to due process of law. With respect to Hester's two remaining arguments, we conclude that those were waived pursuant to the plea agreement.

Accordingly, we affirm the judgment of the district court.

BACKGROUND

On October 13, 2006, Hester pleaded guilty in Schenectady City Court to Sexual Abuse in the Third Degree, in violation of N.Y. Penal Law § 130.55, and Forcible Touching, in violation of N.Y. Penal Law § 130.52. Hester was sentenced principally to 90 days imprisonment on the first charge and 60 days imprisonment on the second charge. As a result of these convictions, Hester was required to register as a sex offender in New York State, which he did on December 7, 2006. Specifically, Hester signed a New York State "Sex Offender Registration Form," which enumerated all of Hester's "duties as a sex offender," including that

You must notify [the Division of Criminal Justice Services] in writing of any change of home address no later than 10 days after you move. (NOTE: Change of address forms are available at your local law enforcement agency, parole or probation office, or from [the Division of Criminal Justices Services].) If you move to another state, you must register as a sex offender within 10 days of establishing residence. You must also register in any state in which you are employed or are a student.

Hester initialed each of the specific requirements listed on the form. Additionally, he signed his name below the statement, "I understand I have a duty to register and my duties were explained to me."

Between January 18, 2007 and April 10, 2007, Hester filed four New York State Sex Offender Change of Address forms. After April 10, 2007, however, New York State officials were unable to locate him. On April 12, 2007, the Schenectady County Probation Department concluded that Hester had absconded from supervision and relocated to Florida. A New York State judge issued an arrest warrant for Hester based upon a petition that alleged probation violations. On July 12, 2007, Hester was arrested in Florida on a charge of making a false statement in connection with the purchase of a firearm. During questioning after his arrest, Hester stated that he had moved to Florida approximately two to three months earlier and that he had not registered as a sex offender when he moved.

Hester was indicted in the Northern District of New York and charged with two counts of violating 18 U.S.C. § 2250(a), for failure to update and register as a sex offender pursuant to SORNA. The applicable requirements provide that "[a] sex offender shall 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." 42 U.S.C. § 16913(a). Hester's two charged counts were based upon his failure to update his registration in New York (Count 1) and failure to register in Florida (Count 2). Hester filed a motion to dismiss the indictment, arguing, inter alia, that his prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) violated his right to due process of law because he did not have actual notice of SORNA. Specifically, Hester argued that although SORNA was enacted on July 27, 2006-three months before he pleaded guilty to the underlying sexual offenses-neither New York nor Florida had implemented a SORNA-compliant registry at the time of his July 2007 arrest. Accordingly, Hester argued that "a reasonable person reading the entirety of the SORNA legislation would be, at best, confused about whether there is a present obligation to register under SORNA" and that his prosecution for failure to register under SORNA would be a violation of due process. J.A. 30 (Def.'s Mot. to Dismiss and Suppress Statements, Dec. 13, 2007).

The district court denied Hester's motion to dismiss the indictment. See United States v. Hester, No. 07-cr-376 (GLS), 2008 WL 351677 (N.D.N.Y. Feb. 7, 2008). First, the district court stated that "[w]hile it may be true that the states have until July 2009 to implement certain administrative portions of [SORNA], the statute itself became effective in July 2006. Therefore, whether mandated by New York, Florida or SORNA, registering is not optional." Id. at *2. The district court also found that "Hester had sufficient notice that failure to register and update his registration was illegal. . . . The record is clear that he knew he had to register and failed to do so." Id. Because the district court determined that "it is not necessary for a defendant to ...


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