SORNA, the Sex Offender Registration and Notification Act, became law in 2006. We recently posted a piece about how the Fifth and Eleventh Circuit Courts of Appeals have expanded the definition of what constitutes a sex offense under the law. These two circuits were following the trend in SORNA cases.
In 2013, the U.S. Supreme Court in United States v. Kebodeaux said “SORNA’s general changes designed to make more uniform what had been ‘a patchwork of federal and 50 individual state registration systems” which had “’loopholes and deficiencies’ that had resulted in an estimated 100,000 sex offenders becoming ‘missing’ or ‘lost.’”
According to the National Center for Missing and Exploited Children, there are more than 843,000 registered sex offenders in the U.S.
What is a Conviction for Purposes of Sorna?
Last year the First Circuit Court of Appeals in United States v. Roberson dealt with a SORNA case involving an “important question of interpretation of first impression in the federal courts of appeals.”
That question was whether a sex offense conviction used as the predicate offense in a SORNA indictment that was reversed for legal reasons could still be considered a sex offense within the meaning of SORNA.
In March 1998, James Roberson entered a guilty plea in a Massachusetts state court to an offense of “indecent assault on a child under the age of 14.” He received a three-year probated sentence. He was required to sign a notice informing him of his duty to register as a sex offender under state law. A warrant was issued against Roberson in 2001 for probation violation.
Failure to Register
Over the next decade Roberson moved about the country. He obtained a driver’s license in Florida in 2006. He was notified by the Florida Department of Law Enforcement over the next three years of his “obligation to register as a sex offender.” When he failed to respond to these notices, the Department registered him as a sex offender.
In 2010, Roberson went to Vermont where he was once again informed by a law enforcement officer of his duty to register as a sex offender. Roberson responded that “he was only visiting the state.”
Between May and June 2011, the appeals court noted that Roberson “worked in Massachusetts” where he once again failed to register as a sex offender. He then left Massachusetts for Nicaragua before returning to the state in April 2012. The following month he was arrested on the “outstanding warrant for his probation violation.”
The federal government entered the picture at this point. A grand jury handed down a one-count SORNA indictment against Roberson. The provisions of the statute he was accused of violating were: 1) failing to register as a sex offender between February 2010 and May 2012 in Massachusetts “and elsewhere”; 2) traveling “in interstate or foreign commerce” pursuing employment without registering; and 3) failing “to register or update a registration.”
Predicate State Case Vacated
Four months after the SORNA indictment was handed down in federal court, Roberson moved to withdraw his guilty plea in the state court because his guilty plea was constitutionally defective. The state district court agreed and reversed and set aside Roberson’s 1998 Massachusetts sex offense conviction.
In January 2013 Roberson’s federal lawyers filed a motion to dismiss the SORNA indictment on the ground that its predicate offense had been vacated. The Government opposed the motion, arguing that the Massachusetts sex offense conviction was in effect at the time Roberson did not register. The district court in April 2013 denied Roberson’s motion to dismiss but said “it would consider the state court’s action at sentencing.”
The following month Roberson entered a conditional guilty plea, reserving his right to appeal the court’s denial of his motion to dismiss. On July 22, 2013, the court sentenced him to six months’ imprisonment with no supervised release.
What does “Convicted” Mean?
Virtually every constitutional challenge to the application of any statute begins with the pure language contained in that statute. SORNA’s definition of a sex offender is anyone who “was convicted” of a sex offense. Those two words went the core of the question before the First Circuit: whether Roberson “was convicted” of the Massachusetts sex offense before that conviction was vacated.
Federal appeals courts always look to U.S. Supreme Court for precedential guidance. The First Circuit found its guidance in Lewis v. United States, a 1980 decision in which a defendant had been indicted for being a felon in possession of a firearm. In the Lewis case, the Supreme Court was faced with a situation where the predicate felony was based on constitutional error; namely, the defendant had not been represented by counsel when the conviction was obtained. However, Lewis’ conviction had never been challenged, overturned or vacated. Thirteen years before Lewis, the Supreme Court had announced in Burgett v. Texasthat an “unconstitutionally obtained conviction” could not, in most circumstances, be used “either to support guilt or enhance punishment for another offense.”
The Lewis court had little difficulty distinguishing its case from the one faced in Burgett. The language of the federal statute in that case (Omnibus Crime Control and Safe Streets Act) held that to be a “felon in possession,” the defendant must have been “convicted by a court … of a felony.” The Lewis court found the language “convicted by a court” to be “unambiguous” and “sweeping.” In other words, the Government only had to show a defendant had previously been “convicted by a court,” regardless of whether the conviction had been obtained unconstitutionally. It was the fact of conviction, not its validity, which served to make the predicate offense legitimate.
Conviction Means Conviction Not Valid Conviction
The First Circuit chose to follow the Lewis rationale in Roberson, saying: “Using the same mode of analysis as Lewis, we conclude Roberson’s challenge must fail. The language is plain. The term ‘was convicted’ refers to the fact of conviction and does not refer just to a ‘valid’ conviction. Instead, Roberson asks the court not to give ‘was convicted’ its normal meaning … He argues ‘was convicted’ must refer only to what he calls a ‘valid’ conviction. But Lewis expressly rejects that reading of almost identical language.”
Thus, the law in the First Circuit now is that all the Government must prove in a SORNA prosecution is the fact that the defendant “was convicted” of a sex offense, regardless of whether that conviction was valid. Other circuits, including the Fifth, have not had an opportunity to address this issue.
More importantly, the question left open by the First Circuit—and one not addressed in Lewis—is whether a sex offense conviction vacated because of “actual innocence” can be used as a predicate offense in SORNA cases.