United States v. Kebodeaux

While serving in the Air Force in 1999, a military tribunal convicted twenty-one-year-old Anthony Kebodeaux of statutory rape for having consensual sex with a fifteen-year-old girl.  Following a three-month sentence and bad-conduct discharge, Kebodeaux moved to Texas, where he became subject to strict lifetime registration requirements that include annual in-person registration and registration updates upon intrastate movement.  Seven years later, in 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”), which imposes registration requirements on sex offenders convicted under state or federal law, and additionally prescribes penalties for failure to register. After failing to update his registration following an intrastate move in 2008, Kebodeaux was convicted under SORNA in the United States District Court for the Western District of Texas and sentenced to one year and one day in prison, plus five years of supervised release. Kebodeaux appealed this conviction to the United States Court of Appeals for the Fifth Circuit, arguing that Congress did not have jurisdiction to criminalize his intrastate movements. The Fifth Circuit, sitting en banc, reversed the District Court’s conviction, holding that as applied to Kebodeaux, SORNA’s registration requirements were unconstitutional as exceeding Congress’s Article I powers. On appeal to the Supreme Court of the United States, the United States argues that SORNA did not constitute overreaching by the federal government because Kebodeaux was consistently subject to federal jurisdiction, having committed a federal offense under military law. In response, Kebodeaux contends that his release from prison pre-SORNA was unconditional, meaning that he is bound only by state registration requirements and any reassertion of federal jurisdiction over him through SORNA would be unconstitutional.  This case will also examine the balance between the benefits of uniformity in a comprehensive registration system against considerations of state sovereignty.

Questions as Framed for the Court by the Parties 

1. Whether the court of appeals erred in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender.

2. Whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted.

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Issue(s)

Whether the Sex Offender Registration and Notification Act with its accompanying regulations requiring all past sex offenders to notify the federal government of intrastate moves is unconstitutional as applied to an individual living in Texas who served a three month sentence for statutory rape over six years prior to the enactment of SORNA.

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Facts

In 1999, a military court convicted the then twenty-one-year-old Anthony Kebodeaux of statutory rape for having consensual sex with a fifteen-year-old girl. See U.S. v. Kebodeaux, 687 F.3d 232, 234 (2d Cir. 2012) (en banc). The court discharged him from the Air Force and sentenced him to three months in prison, a term he completed by August 1999. See id.

In 2006, Congress enacted the Sex Offender Registration and Notification Act (“SORNA”) to create a comprehensive system for federal registration of sex offenders. See 18 U.S.C. 2250. Among other things, the act requires that every sex offender register with the federal government and keep their registration current as to where they live, work, or attend school. See id. SORNA also creates sanctions for violating these provisions, making it a federal offense if a sex offender fails to register or fails to update his or her registration. See id. As originally enacted, SORNA did not automatically apply to those who were convicted prior to 2006, but gave discretion to the Attorney General to make it retroactively applicable. See id.After a notice and comment period, the Attorney General issued a rule making all sex offenders subject to SORNA’s requirements. See 28 C.F.R. 72.3.

In 2007, pursuant to SORNA’s requirements, Anthony Kebodeaux registered as a sex offender in El Paso, Texas. See Brief for Petitioner, United States of America at 8. A few months later, Kebodeaux moved to San Antonio, Texas and failed to update his registration within the allotted time period. See id. Subsequently, a grand jury indicted Kebodeaux for a knowing failure to update a registration pursuant to SORNA’s requirements. See id. at 9. The United States District Court for the Western District of Texas tried Kebodeaux and the federal district judge convicted him of a violation of 18 U.S.C. 2250(a). See 687 F.3d 232 at 233. The judge sentenced Kebodeaux to one year and one day in prison, followed by five years of supervised release. See id.

Kebodeaux appealed his conviction to the United States Court of Appeals for the Fifth Circuit, arguing that Congress did not have jurisdiction to criminalize his intrastate movements. See id. at 234. In a panel decision, the Fifth Circuit rejected this argument and affirmed Kebodeaux’s conviction, reasserting the validity of SORNA and the Attorney General’s accompanying regulation. See id. The Fifth Circuit later vacated the panel’s affirmance and agreed to rehear the appeal en banc. See id. Over the dissent of six judges, the Fifth Circuit sitting en banc reversed the District Court’s conviction. See 687 F.3d 232. The Fifth Circuit held that as applied to Kebodeaux, SORNA’s registration requirements were unconstitutional as exceeding Congress’s Article I powers. See id. The United States appealed from the Fifth Circuit’s en banc reversal, and the Supreme Court of the United States granted certiorari.

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Discussion

Competing values of uniformity and federalism dominate the policy discussion in this case. The United States contends that the Sex Offender Registration and Notification Act's (“SORNA”) uniform, comprehensive system for registration of federal sex offenders bolsters effectiveness of the sex offender monitoring system and prevents the abuse of interstate commerce channels by those seeking to evade registration requirements. See Brief for Petitioner, United States of America at 52, 50–51. Anthony Kebodeaux counters that such a system ignores the division between federal and state sovereignty, imposing federal penalties for failure to register with the State when that power to penalize properly lies with the State itself. See Brief for Respondent, Anthony James Kebodeaux at 29–30.

Uniformity Versus State Sovereignty

The United States insists that one of Congress’s central purposes in enacting SORNA was to bolster the efficiency of state sex offender registration programs through greater uniformity, in the form of a national registration system. See Brief for Petitioner at 30. Additionally, the United States argues that uniformity helps to prevent abuse of the channels of interstate commerce by sex offenders seeking to avoid the reach of individual states. See id. at 50. Citing precedent from opposite ends of the 20th century, the United States notes the long tradition of federal statutes that have been aimed at preventing “immoral and injurious” uses of the channels of interstate commerce. See id. at 51.

In response, Anthony Kebodeaux contends that this argument for centralization of power over sex offender registration programs ignores the important distinction between federal and state sovereignty. See Brief for Respondent at 41. Kebodeaux claims that the power to prescribe penalties for failing to register with a State properly belongs to that State, rather than the federal government. See id. at 29–30. Insofar as the principles of state sovereignty also protect individual liberty, Kebodeaux argues that federal intrusion into intrastate matters is impermissible. See id. at 47.  Instead, Kebodeaux asserts that a more appropriate example of cooperative federalism would be for the federal government to assist the states by prosecuting those who seek to evade registration requirements by crossing state lines. See id.

Public Safety and Security

The United States also argues that the federal government has a legitimate interest in protecting the public from the risk of recidivism among sex offenders after they are released back into the community. See Brief for Petitioner at 39. Citing sex offenders’ “dangerousness as a class,” the United States asserts that the federal government has the power to regulate private citizens in this narrow instance under the Necessary and Proper Clause. See id. at 43, 32, 35.

Kebodeaux counters that the role of protecting the public through post-release monitoring of sex offenders lies properly with the State. See Brief for Respondent at 24–25. Kebodeaux asserts, moreover, that the present case does not involve the release of a dangerous individual from federal custody. See id. at 24. Kebodeaux further argues that SORNA’s registration requirement may actually increase offenders’ rate of recidivism, because the requirement makes it difficult for released offenders to reintegrate into the community. See id. at 35.

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Analysis

The Fifth Circuit held that as applied to Kebodeaux, SORNA’s penalty for failure to update a registration after an intrastate relocation was unconstitutional because it was an overreach into an area of state authority. See U.S. v. Kebodeaux, 687 F.3d 232, (2d Cir. 2012) (en banc).

Continuous Jurisdiction or Federal Reassertion

Petitioner United States argues that Kebodeaux was never outside of federal jurisdiction after being convicted of a sexual offense in 1999. See Brief for Petitoner, United States of America, at 18. That is, the United States asserts that under the Wetterling Act, Kebodeaux was subject to federal registration requirements and penalties. See id. at 19. In so arguing, the United States contends that because Kebodeaux was always subject to federal requirements, the passage of SORNA and its intrastate requirements did not intrude on Texas’ police power over Kebodeaux. See id. at 19–20.

Kebodeaux counters, arguing that when he was released from prison in September of 1999, the applicability of the Wetterling Act to military offenders was uncertain, and was only implemented in December of 1999.  See Brief for Respondent, Anthony Kebodeaux at 3, 19–20. Thus, he contends that his release from prison was unconditional, and that he was subject only to state registration requirements. See id. at 19–20. Kebodeaux argues, as the Fifth Circuit held, that the federal government could not then “reassert” jurisdiction over Kebodeaux’s intrastate movements through the passage of SORNA in 2006, seven years after his release from federal custody. See id. at 20–21.

Necessary and Proper Clause

In the alternative, the United States argues that the Necessary and Proper Clause authorizes the government to apply SORNA’s requirements to offenders whose sentences expired before its enactment. See Brief for Petitoner at 29–30. In so arguing, the United States asserts Congress has power to enact regulations that are rationally related to the exercise of other enumerated powers. See id. at 32–33. That is, the United States contends that in order to effectuate its ability to prosecute sex offenders, it is necessary to create a uniform and up to date registration scheme and require all sex offenders to register and update their registrations with the federal government. See id. at 33.

Kebodeaux contends that the Necessary and Proper Clause does not enable the federal government to impose SORNA’s requirements on him. See Brief for Respondent at 23. Urging affirmance of the Fifth Circuit’s analysis under United States v. Comstock, Kebodeaux asserts his past federal criminal conviction does not alone justify regulating his intrastate activity. See id. at 24–25. That is, Kebodeaux argues that this requirement is not related enough to the power of prosecuting federal sexual offenses, and therefore falls outside of the scope of the Necessary and Proper Clause. See id. at 26.

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Conclusion

In this case, the Supreme Court will decide whether SORNA is unconstitutional as applied to an individual who served his sentence for statutory rape prior to SORNA’s enactment. The United States argues that the application of SORNA to Anthony Kebodeaux for failure to update his state registration does not constitute overreaching by the federal government because Kebodeaux was consistently subject to federal jurisdiction, having committed a federal sex offense under military law. Kebodeaux contends that his release from prison pre-SORNA was unconditional, meaning that he is bound only by state registration requirements and any reassertion of federal jurisdiction over him through SORNA would be unconstitutional.  The United States further claims that its uniform system under SORNA bolsters the effectiveness of sex offender registration programs and serves the legitimate government interest of public safety. However, Kebodeaux counters that such a system infringes on state sovereignty. This case will examine the balance between the benefits of uniformity in a comprehensive registration system and considerations of state sovereignty.

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