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United States of v. Marca. Conca

February 15, 2011

UNITED STATES OF AMERICA, APPELLEE,
v.
MARCA. CONCA, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: MINER,Circuit Judge:

No. 09-4475-cr

USA v. Conca

August Term 2010

Submitted: November 16, 2010

Before: MINER, STRAUB, AND LIVINGSTON, Circuit Judges.

Appeal from a judgment of conviction and sentence entered October 20, 2009, following a guilty plea, in the United States District Court for the Northern District of New York (McAvoy, J.), convicting defendant-appellant of one count of failing to register as a sex offender after traveling in interstate commerce and sentencing him principally to a term of imprisonment of 78 months, the District Court, over objection, having classified a youthful offender adjudication as a prior adult conviction in calculating defendant-appellant's criminal history score under the Sentencing Guidelines.

Affirmed.

Defendant-appellant Marc A. Conca appeals from a judgment of conviction and sentence entered October 20, 2009, following a guilty plea, in the United States District Court for the Northern District of New York (McAvoy, J.) convicting him of one count of failing to register as a sex offender after traveling in interstate commerce and sentencing him principally to a 78-month term of imprisonment. In arriving at this sentence under the Sentencing Guidelines, the District Court classified a youthful offender adjudication as a prior adult conviction in calculating Conca's criminal history score. As he did in the District Court, Conca here challenges that classification. For the reasons that follow, we affirm.

BACKGROUND

I. The Offense of Conviction In a one-count indictment dated February 26, 2009 (the "Indictment"), a grand jury

impaneled in the Northern District of New York issued the following charge against Conca:

That on or between about September, 2008, and January 23, 2009, in the State and Northern District of New York and elsewhere, Marc A. CONCA, the defendant herein, an individual required to register under the Sex Offender Registration and Notification Act, did knowingly travel in interstate commerce, from the State of Oklahoma to the Northern District of New York, and knowingly failed to register as a sex offender in the States of Oklahoma and New York and knowingly failed to update his registration in the State of Texas as required by law.

In violation of Title 18, United States Code, Section 2250(a).

After entering a plea of not guilty to the Indictment, Conca entered into a plea agreement with the government dated April 22, 2009, (the "Agreement") whereby he agreed to withdraw his not guilty plea and enter a plea of guilty to the Indictment. In the Agreement, Conca acknowledged that he was subject to various penalties, including a maximum term of imprisonment of ten years, supervised release of not less than five years to life, the consequences of violation of the terms of supervised release, a maximum fine of $250,000, a special assessment of $100, and interest and penalties consequent to non-payment of any financial obligations imposed. Conca also acknowledged his understanding of the factors to be considered by the court in imposing sentence as well as the elements of the offense with which he was charged.

The Agreement set forth the factual basis for Conca's plea as follows: On June 20, 2007, Conca was sentenced to imprisonment for two years upon his conviction in Texas for sexual assault, a felony under the Texas Penal Code. Because of the conviction, Conca was required to register as a sex offender under the Texas Sexual Offender Registration Program upon his release from prison. TEX. CODE CRIM. PROC. ANN. art. 62.051 (West 2011). See generally Sexual Offender Registration Program, 1991 Tex. Sess. Law Serv. Ch. 572 (S.B. 259) (Sept. 1, 1991). The statute also required Conca to update his registration whenever he changed his address. TEX. CODE CRIM. PROC. ANN. art. 62.055.

At the time he was released from state prison in Texas, on April 18, 2008, Conca signed a "Pre-Release Notification Form Texas Sex Offender Registration Program." See id. art. 62.053(a). This document described Conca's duties as a convicted sex offender, including the duty to report any intended move to a new residence within or outside the state within seven days prior to moving. Relocation to another state also required Conca to register, within ten days of his arrival in that state, with the law enforcement agency properly designated to receive such registration information in that state. Also on April 18, 2008, Conca signed a separate form entitled "Sex Offender Verification," in which he acknowledged that his sex offender registration obligations would apply throughout his lifetime.

In May 2008, Conca left Texas and traveled to various places, including Oklahoma City, where he eventually rented an apartment in September 2008. While there, he was briefly employed in a restaurant but departed the State of Oklahoma in mid-October 2008. From that time until January 2009, according to the Agreement, Conca "lived a transient existence in numerous southeastern states." On January 3, 2009, Conca arrived by Greyhound bus in Amsterdam, New York, where he lived with his sister until January 11, 2009. On that date, he moved to his girlfriend's house in Gloversville, New York. Conca resided at his girlfriend's house until January 23, 2009, when he was arrested on an unrelated warrant by the Gloversville City Police Department.

The Agreement includes the following with respect to the offense of conviction: Records show that from April 18, 2008 up until January 23, 2009 (the date on which CONCA was arrested by the Gloversville City Police Department) CONCA did not update his registration in Texas and failed to register as a sex offender in any state including the States of Oklahoma and New York. CONCA knowingly failed to update his registration in Texas, and failed to register in a timely manner in the States of Oklahoma and New York, as is required by the Sex Offender Registration and Notification Act.

II. The Pre-Sentence Investigation Report and Objections The United States Probation Office in the Northern District of New York prepared

a Presentence Investigation Report ("PSR") following Conca's guilty plea. The PSR found a base offense level of 16 pursuant to U.S.S.G. § 2A3.5(a)(1), since Conca was classified as a Tier III Sex Offender under the provisions of 42 U.S.C. § 16911(4). Because it appeared from the records of the Oklahoma County Court that Conca committed the crime of Rape in the First Degree involving a 28-year-old victim while he was in failure to register status in Oklahoma City on August 13, 2008, a 6-point enhancement was ...


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