Federal Corner: One Sex Offender Evades the SORNA Registration Requirements – By F. R. Buck Files Jr.

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Finally, a breath of sanity. On July 6, 2012, the United States Court of Appeals for the Fifth Circuit, sitting en banc, held that a SORNA registration requirement was unconstitutional as applied to Anthony James Kebodeaux. United States v. Kebodeaux, __F.3d __, 2012 WL 2632106 (5th Cir. 2012) [En Banc: Jones, Chief Judge King, Jolly, Davis, Smith (who authored the opinion of the Court), Garza, Benavides, Stewart, Dennis (dissenting and joined by King and Haynes), Clement, Prado, Owen (concurring), Elrod, Southwick, Haynes (dissenting and joined by King, Davis, Stewart, and Southwick), and Graves.] [Note: The opinion was, unfortunately, narrow in its scope.]

The opinion of the Court is 11 pages in length. The dissent took another 13 pages—and there are seven pages of footnotes to the opinion. If you should have a SORNA case in your office, you will need to read the opinion in its entirety. What follows is a snapshot of Judge Smith’s opinion, which reads, in part, as follows:

[An Overview of the Opinion]

Anthony Kebodeaux, a federal sex offender, was convicted, under the Sex Offender Registration and Notification Act (“SORNA”), of failing to update his change of address when he moved intrastate. A panel of this court affirmed. United States v. Kebodeaux, 647 F.3d 137 (5th Cir. 2011). The panel majority rejected Kebodeaux’s argument that Congress does not have the power to criminalize his failure to register because it cannot constitutionally reassert jurisdiction over his intrastate activities after his unconditional release from federal custody. Judge Dennis concurred in the judgment and assigned lengthy reasons, urging that SORNA is authorized by the Commerce Clause. The panel opinion was vacated by our decision to rehear the case en banc. United States v. Kebodeaux, 647 F.3d 605 (5th Cir. 2011). Because we agree with Kebodeaux that, under the specific and limited facts of this case, his commission of a federal crime is an insufficient basis for Congress to assert unending criminal authority over him, we reverse and render a judgment of dismissal.

[The Facts in the Case]

While in the military, Kebodeaux had consensual sex with a fifteen-year-old when he was twenty-one and was sentenced in 1999 to three months in prison. He fully served that sentence, and the federal government severed all ties with him. He was no longer in federal custody, in the military, under any sort of supervised release or parole, or in any other special relationship with the federal government when Congress enacted a statute that, as interpreted by the Attorney General, required Kebodeaux to register as a sex offender. When he failed to update his state registration within three days of moving from San Antonio to El Paso, he was convicted under 18 U.S.C. § 2250(a) (also enacted in 2006) and sentenced to a year and a day in prison.

[The Court Accepts Kedodeaux’s Argument]

Kebodeaux argues that § 2250(a)(2)(A) and the registration requirements that it enforces are unconstitutional as applied to him, because they exceed the constitutional powers of the United States. He is correct: Absent some jurisdictional hook not present here, Congress has no Article I power to require a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.

[The Narrowness of the Opinion]

The federal requirement that sex offenders register their address is unconstitutional on narrow grounds. We do not call into question Congress’ ability to impose conditions on a prisoner’s release from custody, including requirements that sex offenders register intrastate changes of address after release. After the federal government has unconditionally let a person free, however, the fact that he once committed a crime is not a jurisdictional basis for subsequent regulation and possible criminal prosecution. Some other jurisdictional ground, such as interstate travel, is required.

      This finding of unconstitutionality therefore does not affect the registration requirements for (1) any federal sex offender who was in prison or on supervised release when the statute was enacted in 2006 or (2) any federal sex offender convicted since then. Instead, it applies only to those federal sex offenders whom the government deemed capable of being unconditionally released from its jurisdiction before SORNA’s passage in 2006. Moreover, even as to those sex offenders, it means only that Congress could treat them exactly as all state sex offenders already are treated under federal law. It also has no impact on state regulation of sex offenders.

[The SORNA Requirement]

SORNA says, in relevant part, 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.” Those requirements are made applicable to former federal sex offenders via 42 U.S.C. § 16913(d) and 28 C.F.R. § 72.3. SORNA then includes the following criminal provision:

Whoever—

(1) is required to register under [SORNA]; 
(2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law . . . ; or 
(B) travels in interstate or foreign commerce . . . ; and 
(3) knowingly fails to register or update a registration as required by [SORNA];

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a).

[The Positions of the Parties]

Kebodeaux argues that Congress has no authority under Article I to subject him to conviction pursuant to § 2250(a)(2)(A). The government, on the other hand, maintains that its power to criminalize the conduct for which Kebodeaux was originally convicted includes the authority to regulate his movement even after his sentence has expired and he has been unconditionally released.

***

[The Court’s Reasoning]

[A]s applied to Kebodeaux, SORNA’s registration requirements are not, and cannot be, an attempt to punish the initial crime or to act as a responsible custodian of prisoners; they are merely an effort to protect the public from those who may be dangerous because they once were convicted of a sex offense. By that logic, Congress would have never-ending jurisdiction to regulate anyone who was ever convicted of a federal crime of any sort, no matter how long ago he served his sentence, because he may pose a risk of re-offending.

      Indeed, that logic could easily be extended beyond federal crimes: Congress could regulate a person who once engaged in interstate commerce (and was thereby subject to federal jurisdiction) on the ground that he now poses a risk of engaging in interstate commerce again. In short, the only “rational relation” between § 2250(a)(2)(A)’s application to Kebodeaux and an enumerated federal power is that Kebodeaux was once subject to federal jurisdiction-reasoning that is so expansive that it would put an end to meaningful limits on federal power.

***

[S]ORNA’s registration requirements and criminal penalty for failure to register as a sex offender, as applied to those, like Kebodeaux, who had already been unconditionally released from federal custody or supervision at the time Congress sought to regulate them, are not “rationally related” or “reasonably adapted” to Congress’ power to criminalize federal sex offenses to begin with. The statute’s regulation of an individual, after he has served his sentence and is no longer subject to federal custody or supervision, solely because he once committed a federal crime, (1) is novel and unprecedented despite over 200 years of federal criminal law, (2) is not “reasonably adapted” to the government’s custodial interest in its prisoners or its interest in punishing federal criminals, (3) is unprotective of states’ sovereign interest over what intrastate conduct to criminalize within their own borders, and (4) is sweeping in the scope of its reasoning. For those reasons, and with high respect for its careful reasoning, the panel majority wrongly decided this case.

***

Upholding § 2250(a)(2)(A) would go a big step further than has the applicable caselaw, because, unlike § 2250(a)(2)(B), this statute regulates federal sex offenders “generally,” Whaley, 577 F.3d at 259, regardless of whether they engage in interstate activity. The activity criminalized by § 2250(a)(2)(A) is thus not “directed” at interstate commerce in the way that all previously upheld provisions regulating the use of the channels of interstate commerce have been.

***

[Conclusion]

The statute is an unlawful expansion of federal power at the expense of the traditional and well-recognized police power of the state. The conviction is REVERSED, and a judgment of dismissal is RENDERED.

My Thoughts

  • My initial impression was that Kebodeaux is a case upon which few will be able to rely for relief in the trial or appellate courts. At the Advanced Criminal Law Course, I discussed this with federal defenders from the Southern and Eastern Districts of Texas, and they concurred.
  • Kebodeaux was, though, one of those rare cases that received en banc review, and I believed that to be another reason to write about it.
TCDLA
TCDLA
F. R. Buck Files, Jr.
F. R. Buck Files, Jr.
Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

Buck Files is a member of TCDLA’s Hall of Fame and a former President of the State Bar of Texas. In May, 2016, TCDLA’s Board of Directors named Buck as the author transcendent of the Texas Criminal Defense Lawyers Association. This is his 250th – and last – column; however, he will continue to write for The Voice on an irregular basis. He practices in Tyler with the law firm of Bain, Files and Harrison, P.C., and can be reached at or (903) 595-3573.

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