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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-12162
Non-Argument Calendar
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D.C. Docket No. 2:16-cr-00006-WCO-JCF-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY MICHAEL LEWALLYN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 5, 2018)
Before WILLIAM PRYOR, MARTIN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Anthony Michael Lewallyn, who pleaded guilty to failing to register as a sex
offender in violation of the Sex Offender Registration and Notification Act,
18
U.S.C. § 2250, appeals the denial of his motion to dismiss his indictment.
Lewallyn argues, based on Nichols v. United States,
136 S. Ct. 1113 (2016), that
the venue for his offense was in a district of North Carolina, where he last resided
and failed to register as a sex offender, instead of the Northern District of Georgia,
where he began his interstate travel. Because Nichols, which addressed where a
federal sex offender must update his registration, does not overrule or abrogate
United States v. Kopp,
778 F.3d 986 (11th Cir. 2015), which holds that a sex
offender whose crime includes interstate travel as an element can be prosecuted in
any district where his “crime was ‘begun, continued, or completed.’”
id. at 988
(quoting
18 U.S.C. § 3237(a)), we affirm.
I. BACKGROUND
In 1990, a jury in Georgia convicted Lewallyn of two counts of child
molestation and one count of aggravated child molestation. Lewallyn received a
sentence of 20 years of imprisonment and 10 years of probation. In 2010, Lewallyn
began his term of probation and registered in Georgia as a sex offender. He kept
his registration current through January 2013.
In April 2013, Lewallyn failed to report to his probation officer and a
warrant issued for his arrest. Later, agents of the United States Marshals Service
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received a tip regarding Lewallyn’s location. On August 5, 2015, federal agents
arrested Lewallyn in Cumberland County, North Carolina, where he was living
under an assumed name.
In February 2016, Lewallyn was charged in the Northern District of Georgia
for failing to register and update his registration under the Sex Offender
Registration Act.
18 U.S.C. § 2250(a). Lewallyn moved to dismiss his indictment
for improper venue and argued that, under Nichols,
136 S. Ct. 1113, he could be
prosecuted only in the district of North Carolina where he had failed to register.
The district court denied Lewallyn’s motion and determined that Kopp,
778 F.3d
986, made venue proper in the district of Georgia where Lewallyn began his travel
in interstate commerce before completing his offense of failing to register in North
Carolina. See 18 U.S.C. 3237(a).
Lewallyn entered an unconditional plea of guilty to failing to register and
update his registration under the Sex Offender Registration Act. During
sentencing, Lewallyn asked “to preserve . . . for the record” that he had “file[d] a
pretrial motion . . . arguing that venue would be more appropriate in North
Carolina.” After the district court sentenced Lewallyn to 15 months of
imprisonment, he reasserted his “objection to the venue jurisdictional issue in this
case.”
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Lewallyn appealed, and the government moved for summary disposition on
the ground that Lewallyn’s unconditional guilty plea waived his right to challenge
venue. We denied the motion for summary disposition. Because the government
does not raise the issue of waiver in its response brief, we do not address that issue.
II. STANDARD OF REVIEW
We review de novo the denial of a motion to dismiss an indictment for
improper venue. Kopp, 778 F.3d at 988.
III. DISCUSSION
Lewallyn argues that Nichols abrogated Kopp and that venue was
appropriate only in North Carolina, where he resided and failed to register as a sex
offender. The government responds that because Nichols did not address venue, we
are bound by Kopp, and venue was proper in the Northern District of Georgia
where Lewallyn began his travel to North Carolina. We agree with the
government.
In Kopp, we held that venue for a violation of the Sex Offender Registration
Act can lie in the district of departure. 778 F.3d at 988–89. Kopp violated the Act
by moving from Georgia, where he was registered as a sex offender, to Florida
without notifying authorities of his relocation. Id. at 987. After Kopp was indicted
in Georgia for failing to register as a sex offender, he moved, without success, to
dismiss his indictment for improper venue. Id. Kopp entered a conditional plea of
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guilty to violating the Act, reserved the right to challenge the denial of his motion
to dismiss, and appealed that adverse ruling. Id. at 987–88. We held that the Act
did “not ‘expressly provide[]’ for venue,” so Kopp’s offense could be “prosecuted
in ‘any district’ where [that] crime was ‘begun, continued, or completed.’” Id. at
988 (quoting
18 U.S.C. § 3237(a)). Because travel in interstate commerce was an
element of Kopp’s crime,
id. at 988–89 (discussing Carr v. United States,
560 U.S.
438, 454 (2010)), and he “began his crime in Georgia,” we concluded that venue
was proper in a district of that state.
Id.
In Nichols, the Supreme Court held that the Act does not require a sex
offender to update his registration in a state where he no longer resides.
136 S. Ct.
at 1118. The Court grounded its decision in the plain text of the Act, which
requires a sex offender to “register and keep the registration current[] in each
jurisdiction where [he] resides, . . . is an employee, and . . . is a student,”
42 U.S.C.
§ 16913(a), and within “3 business days after each change of . . . residence . . . [to]
appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and
inform that jurisdiction of all changes in the information required . . . in the sex
offender registry,”
id. § 16913(c). The Court concluded that the use of the present
tense “resides” meant “that once Nichols moved to Manila, [in the Philippines,] he
was no longer required to appear in Kansas[, his state of departure,] to update his
registration, for Kansas was no longer a ‘jurisdiction involved’ pursuant to
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subsection (a)’ of § 16913.” Id. at 1117. The Court also found that “[t]he
requirement in § 16913(c) to appear in person and register . . . ‘after each change
of residence’ point[ed] to the same conclusion” because “Nichols could not have
appeared . . . in Kansas ‘after’ leaving the State.” Id. at 1117–18.
Nichols addresses an issue different from the issue resolved in Kopp. Nichols
means that Lewallyn was not required to update his registration in Georgia after he
moved to North Carolina. As the district court explained, Nichols “in no way
considered or ruled on the issue of where a trial should be held when a registered
sex offender leaves a district and fails to register in another district that is an
“involved jurisdiction’ for purposes of SORNA.” Nichols does not prevent the
United States from prosecuting Lewallyn for violating the Act by traveling in
interstate commerce and failing to register in North Carolina.
Another crucial distinction lies in the different elements required to prove
that federal and state sex offenders have violated the Act. The Act punishes a
person who fails to register (A) when he is required to do so and “is a sex offender
. . . by reason of a conviction under Federal law (including the Uniform Code of
Military Justice), the law of the District of Columbia, Indian tribal law, or the law
of any territory or possession of the United States[] or (B) travels in interstate or
foreign commerce, or enters or leaves, or resides in, Indian country[.]”
18 U.S.C.
§ 2250(a) (emphasis added). As the Supreme Court stated in Carr, the Act includes
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interstate travel as an “element” of the crime of a state sex offender,
18 U.S.C.
§ 2250(a)(2)(B), and omits “interstate travel . . . [as] a prerequisite to § 2250
liability” for a federal sex offender, id. § 2250(a)(2)(A).
560 U.S. at 446 & n.3.
The offenders in Nichols and Kopp committed different acts that subjected
them to liability under the Act. On the one hand, Nichols violated the Act by
failing to register when he was required to do so due to his federal conviction for
“traveling with intent to engage in illicit sexual conduct with a minor, in violation
of
18 U.S.C. § 2423(b),” Nichols,
136 S. Ct. at 1116–17. On the other hand, the
offender in Kopp, who was certified as a sex offender by the Federal Bureau of
Prisons, 778 F.3d at 987, had to “travel in interstate commerce [as] an element of
[his] offense,” id. at 988. As in Kopp, Lewallyn was required to register due to his
state conviction and had to travel interstate to violate the Act. See
18 U.S.C.
§ 2250(a)(2)(B).
The Second Circuit Court of Appeals also has concluded that Nichols “did
not address venue.” United States v. Holcombe,
883 F.3d 12, 16 (2018). The court
in Holcombe decided that the venue for prosecution under the Act presents a
question different from where the sex offender is required to register.
Id.
Consistent with our decision in Kopp and with the decisions of our sister circuits in
United States v. Lewis,
768 F.3d 1086, 1092–94 (10th Cir. 2014), and United
States v. Howell,
552 F.3d 709, 717–18 (8th Cir. 2009), the Second Circuit
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concluded that, because the defendant was a state sex offender and interstate travel
was an element of his crime, venue was proper in New York, where he began his
travel to Maryland, where he failed to register. 883 F.3d at 15–16.
Lewallyn bases his argument for reversal on United States v. Haslage,
853
F.3d 331 (7th Cir. 2017), but that decision conflicts with Carr and Kopp. In
Haslage, the Seventh Circuit interpreted Nichols to require that no “conduct that is
part of the offense” of failing to register can occur in the district where the offender
begins his move because “interstate travel is neither a distinct crime nor an element
of the crime.”
Id. at 333, 336 (emphasis added). But as Judge Sykes highlighted in
her dissenting opinion,
id. at 336–38, the Supreme Court in Carr identified
interstate travel as an “element” of the crime for state sex offenders,
560 U.S. at
446, and we did the same in Kopp.
We are bound by Kopp. “Under the prior precedent rule, we are bound to
follow a prior binding precedent unless and until it is overruled by this court en
banc or by the Supreme Court.” United States v. Vega-Castillo,
540 F.3d 1235,
1236 (11th Cir. 2008) (internal quotation marks and citation omitted). Kopp has
not been overruled by Nichols or by an en banc panel of this Court. And “even if
we thought [Kopp] wrong, the prior panel precedent rule is not dependent upon a
subsequent panel’s appraisal of the initial decision’s correctness.” Smith v. GTE
Corp.,
236 F.3d 1292, 1301–02 (11th Cir. 2001) (alteration adopted). Kopp “is the
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law of this Circuit,”
id. at 1302, about where venue lies to prosecute a state sex
offender for violating the Act.
The district court did not err by denying Lewallyn’s motion to dismiss for
lack of venue. Lewallyn, as a state sex offender, was liable under the Act for
traveling in interstate commerce and knowingly failing to update his registration in
North Carolina,
18 U.S.C. § 2250(a), and he was subject to prosecution in “any
district in which [his] offense was begun, continued, or completed,”
id. § 3237(a).
See Kopp, 778 F.3d at 988–89. Venue was proper in Georgia, where Lewallyn
began the offense that he completed by failing to register in North Carolina.
IV. CONCLUSION
We AFFIRM Lewallyn’s conviction.
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