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United States v. Lott

United States Court of Appeals, Second Circuit

April 24, 2014

UNITED STATES OF AMERICA, Appellee,
v.
CORY LOTT, Defendant-Appellant

 Argued, October 29, 2013

Petition for certiorari filed at, 07/23/2014

Cory Lott (" Lott" ) appeals from the 63-month sentence imposed in the United States District Court for the District of Vermont (William K. Sessions, III, District Judge), following his guilty plea for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Lott contends that the district court should have dismissed the indictment because at the time of Lott's interstate travel, the Sex Offender Registration and Notification Act (" SORNA" ), Pub. L. No. 109-248, 120 Stat. 587 (2006) (codified at 18 U.S.C. § 2250 and 42 U.S.C. § 16911 et seq.), was not applicable to pre-Act offenders such as Lott. Lott also contends that the district court erroneously applied an eight-level sentencing enhancement under the United States Sentencing Guidelines (" U.S.S.G." ) section 2A3.5(b)(1)(C). We reject Lott's arguments and AFFIRM the judgment of the district court.

DAVID L. MCCOLGIN (Michael L. Desautels, on the brief), Federal Public Defender's Office, District of Vermont, Burlington, VT, for Defendant-Appellant.

MICHAEL DRESCHER, Assistant United States Attorney (Tristram J. Coffin, United States Attorney for the District of Vermont, William B. Darrow and Gregory L. Waples, Assistant United States Attorneys, on the brief), Burlington, VT, for Appellee.

Before: WALKER, CABRANES, and PARKER, Circuit Judges.

OPINION

Page 215

John M. Walker, Jr. Circuit Judge

Cory Lott (" Lott" ) appeals from the 63-month sentence imposed in the United States District Court for the District of Vermont (William K. Sessions, III, District Judge ), following his guilty plea to failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Lott contends that the district court should have dismissed the indictment because at the time of Lott's interstate travel, the Sex Offender Registration and Notification Act (" SORNA" ), Pub. L. No. 109-248, 120 Stat. 587 (2006) (codified at 18 U.S.C. § 2250 and 42 U.S.C. § 16911 et seq .), was not applicable to pre-Act offenders such as Lott. Lott also contends that the district court erroneously applied an eight-level sentencing enhancement under the United States Sentencing Guidelines (" U.S.S.G." ) section 2A3.5(b)(1)(C). We reject Lott's arguments and AFFIRM the judgment of the district court.

BACKGROUND

In November 2001, Lott was convicted in New York of attempted sexual abuse and sentenced to one year probation. As a result of his conviction he was required under state law to register as a sex offender in New York, but he failed to do so. In 2006, Congress passed SORNA, which requires sex offenders to register in each jurisdiction in which they reside, work, or go to school; however, SORNA does not specify whether this requirement pertains to offenders whose offenses predate SORNA's 2006 effective date.

Lott eventually moved to South Carolina, where in 2009 he was convicted under state law for failure to register. In 2010, Lott moved to Vermont and failed to register, as the government alleges was

Page 216

required by SORNA. In November 2010, Lott sexually assaulted a 13-year-old girl and fled the state. In February 2011, Vermont obtained an arrest warrant for Lott on a charge of lewd and lascivious conduct in connection with this assault. In September 2011, a federal grand jury returned an indictment alleging that Lott had traveled to Vermont in late 2010 without registering as a sex offender, in violation of SORNA, 18 U.S.C. § 2250(a). Twelve days later, Lott pled guilty in Vermont state court to two misdemeanor prohibited acts counts based on the assault. He was sentenced to six to twelve months' imprisonment.

Lott then moved to dismiss the federal indictment, raising a number of challenges to the validity of SORNA as applied. The district court denied the motion to dismiss. On August 6, 2012, Lott pled guilty pursuant to a written plea agreement that preserved his right to appeal his challenges to the application of SORNA. At sentencing, the district court calculated the sentencing guidelines range to be 63 to 78 months, including an eight-level enhancement pursuant to U.S.S.G. § 2A3.5(b)(1)(C) for committing a sex offense against a minor while he was in failure-to-register status. Defense counsel objected to the sentencing enhancement. The district court overruled defense counsel's objections and imposed a sentence of 63 months' imprisonment.

Lott appeals the constitutionality of SORNA's registration requirement to conduct that preceded SORNA's effective date and also appeals the application ...


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