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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 14-12408, 14-13521
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D.C. Docket No. 1:12-cr-00269-RWS-JFK-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATHIAS THOMAS KOPP,
Defendant-Appellant.
________________________
Appeals from United States District Court
for the Northern District of Georgia
_______________________
(February 18, 2015)
Before WILLIAM PRYOR and JORDAN, Circuit Judges, and HAIKALA, ∗
District Judge.
∗
Honorable Madeline Hughes Haikala, United States District Judge for the Northern District of
Alabama, sitting by designation.
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WILLIAM PRYOR, Circuit Judge:
These consolidated appeals require us to decide where venue lies for the
prosecution of a sex offender who moved across state lines, but failed to update his
registration,
18 U.S.C. § 2250(a), and whether the offender’s sentence for violating
the terms of his supervised release is substantively reasonable. After registering as
a sex offender in the Northern District of Georgia, Mathias Kopp moved to
Daytona Beach, Florida, where he failed to update his registration. A grand jury
then indicted Kopp in the Northern District of Georgia for failure to register as a
sex offender. Kopp moved to dismiss the indictment for improper venue, but the
district court denied his motion. Kopp then conditionally pleaded guilty. Kopp later
violated his supervised release, and the district court sentenced him to 16 months
of imprisonment, which was six months above his Sentencing Guidelines range
and four months below the statutory maximum. We affirm both the denial of
Kopp’s motion to dismiss his indictment and the sentence imposed following the
revocation of his supervised release.
I. BACKGROUND
In 2002, a court in Hungary convicted Kopp for “Rape of an Individual Not
Older Than Twelve.” Kopp, who is an American citizen, requested a transfer under
the Convention on the Transfer of Sentenced Persons, Council of Europe, Art. 10,
Mar. 21, 1983, 35 U.S.T. 2867. See
18 U.S.C. § 4105. After Kopp returned to the
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United States, the United States Parole Commission required him to serve his
prison sentence of seven years, eight months, followed by a term of 36 months of
supervised release, see 18 U.S.C. § 4106A.
While Kopp was still imprisoned, the Federal Bureau of Prisons certified
him as a sexually dangerous person required to register as a sex offender under the
Adam Walsh Child Protection and Safety Act of 2006,
42 U.S.C. §§ 16901–16991.
Kopp began his term of supervised release in the Northern District of Georgia.
Kopp’s probation officer directed him to complete a sex offender registration,
id.
§§ 16911–16929, and Kopp updated his registration in Georgia until December
2011.
In 2012, Kopp removed the electronic monitoring device that he wore as a
condition of his supervised release and left the halfway house in Georgia where he
resided. About a month later, police officers encountered Kopp in Daytona Beach,
Florida. Kopp gave them a false name and informed the police that he was living in
a local homeless shelter. When the police later arrested Kopp for trespassing, he
again asserted that he resided at a homeless shelter in Daytona Beach. Kopp never
registered as a sex offender in Florida, nor did he inform authorities in Georgia that
he was moving to Florida.
Kopp was taken to the Northern District of Georgia, where he was indicted
for failure to register as a sex offender,
18 U.S.C. § 2250(a). Kopp moved to
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dismiss the indictment for improper venue. He argued that venue did not lie in
Georgia because he failed to register in Florida, not Georgia. The district court
denied the motion. Kopp signed a plea agreement but reserved the right to appeal
the ruling about venue. The district court sentenced Kopp to 18 months of
imprisonment followed by three years of supervised release.
In October 2013, Kopp began his supervised release for his conviction for
failing to register as a sex offender. As a condition of his release, he was required
to remain in a halfway house, Dismas Charities. In December 2013, Kopp admitted
that he failed to remain at Dismas Charities. For that violation, the district court
sentenced him to a four month prison term followed by the remaining 26 months of
supervised release. In March 2014, Kopp returned to Dismas Charities to continue
his supervised release. In May, after being tested for alcohol, Kopp took several
items from his locker, left through an emergency exit, and failed to report his
whereabouts. Kopp was arrested weeks later.
The government petitioned the district court to revoke Kopp’s supervised
release. Kopp admitted the violation. The parties stipulated that the appropriate
Sentencing Guidelines range for Kopp’s violation was 4 to 10 months, and that the
statutory maximum was 20 months. The district court granted the petition to
revoke and sentenced Kopp to a prison term of 16 months. We consolidated
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Kopp’s appeals of his conviction for failing to register as a sex offender and his
sentence on revocation of his supervised release.
II. STANDARDS OF REVIEW
These appeals are governed by two standards of review. We review de novo
the legal sufficiency of the allegations in an indictment. United States v. York,
428
F.3d 1325, 1331 n.8 (11th Cir. 2005). We review for abuse of discretion whether a
district court imposed a substantively unreasonable sentence. United States v.
Pugh,
515 F.3d 1179, 1190–91 (11th Cir. 2008).
III. DISCUSSION
We divide our discussion in two parts. First, we explain that venue was
proper because Kopp began his crime in Georgia. Second, we explain that Kopp’s
sentence for failing to comply with the terms of his supervised release is
substantively reasonable.
A. Venue Was Proper in Georgia.
Kopp argues that he failed to register as a sex offender in Florida, which
makes venue proper only in Florida, see Fed R. Crim. P. 18, but we disagree.
Under the Sixth Amendment, a defendant has a right to a trial by “an impartial jury
of the state and district wherein the crime shall have been committed.” U.S. Const.
Amend. VI. Kopp’s crime includes as an element “travel[] in interstate . . .
commerce,”
18 U.S.C. § 2250(a)(2)(B), which Kopp began in Georgia. Where a
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federal statute does not “expressly provide[]” for venue, the crime may be
prosecuted in “any district” where the crime was “begun, continued, or
completed.”
Id. § 3237(a). The statute that Kopp violated, id. § 2250, does not
provide for venue, so Kopp may be prosecuted in any district where he “beg[a]n,
continued, or completed” the crime, id. § 3237(a).
Kopp “beg[a]n” his crime in Georgia because his interstate journey started
there. Section 2250 provides criminal penalties for anyone subject to the
registration requirements of the Sex Offender Registration and Notification Act,
42 U.S.C. §§ 16911–16929, who “travels in interstate . . . commerce” and then
“knowingly fails to register or update [their] registration as required by the [Act].”
18 U.S.C. § 2250(a). To keep his registration current, a sex offender must, “not
later than 3 business days after each change of name, residence, employment, or
student status,” inform the relevant jurisdiction of his change in status.
42 U.S.C.
§ 16913(c); see also United States v. Beasley,
636 F.3d 1327, 1329 (11th Cir.
2011). Kopp does not dispute that he traveled from Georgia to Florida in interstate
commerce and then failed to update his registration. Because travel in interstate
commerce is an element of the offense, Kopp “beg[a]n” his crime in Georgia,
18
U.S.C. § 3237(a).
Kopp argues that because the elements of a violation of section 2250 must
occur “in sequence,” Beasley,
636 F.3d at 1329, the crime was committed only in
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Florida. Kopp cites United States v. Miller, where a district court concluded that
“[i]nterstate travel is an element of this particular crime only because it is needed
to properly invoke Congress’s Commerce Clause authority,” and so the
requirement of “interstate travel is more like a condition precedent than an
essential element of the crime.” No. 2:10–CR–196,
2011 WL 711090, at *5, (S.D.
Ohio Feb. 22, 2011). In Miller, the district court ruled that the “criminal act itself
takes place entirely within the district where the offender had a duty to register
[but] failed to do so.”
Id. We reject this argument.
Miller is unpersuasive. The Supreme Court has explained that “[t]he act of
travel by a convicted sex offender may serve as a jurisdictional predicate for
[section] 2250, but it is also . . . the very conduct at which Congress took aim.”
Carr v. United States,
560 U.S. 438, 454,
130 S. Ct. 2229, 2240 (2010). Because
the crime consists of both traveling and failing to register, Kopp began his crime in
Georgia and consummated it in Florida. Like our sister circuits that have addressed
the issue, we hold that section 3237 applies, and venue lies in Georgia. See United
States v. Lewis,
768 F.3d 1086, 1092–94 (10th Cir. 2014); United States v.
Lunsford,
725 F.3d 859, 863 (8th Cir. 2013) (citing United States v. Howell,
552
F.3d 709 (8th Cir. 2009)); United States v. Leach,
639 F.3d 769, 771–72 (7th Cir.
2011).
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B. Kopp’s Sentence for Violating His Supervised Release Is Substantively
Reasonable.
When it revoked Kopp’s supervised release, the district court did not
sentence him “outside the range of reasonable sentences,” Pugh,
515 F.3d at 1191,
by varying upward from the guideline range by six months. Kopp has a long and
violent history of crime. In 1981, he was convicted of raping a woman at gunpoint,
and within three years of being released from prison, he raped a child in Hungary.
He has also committed other serious crimes, including trespassing and breaking
and entering, and twice violated his supervised release after he failed to register as
a sex offender. The district court explained that Kopp had failed to abide by the
conditions of his supervised release; that the crimes that Kopp had committed
made him a potential threat to public safety; and that there must be
“consequence[s]” to deter him because, even after any period of supervised release,
Kopp would again have to register as a sex offender. The district court did not
commit a “clear error of judgment,” United States v. Shaw,
560 F.3d 1230, 1238
(11th Cir. 2009), when it weighed the applicable factors and imposed a sentence of
16 months of imprisonment.
IV. CONCLUSION
We AFFIRM Kopp’s conviction for failure to register as a sex offender and
his sentence for failing to comply with the terms of his release.
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WILLIAM PRYOR, Circuit Judge, concurring:
Not surprisingly, I concur in full, but I write separately because I would hold
that venue was proper in Georgia on an alternative ground too. Kopp’s crime was a
“continuing offense,”
18 U.S.C. § 3237(a), subject to prosecution anywhere that
Kopp traveled. Any offense that involves “transportation in interstate . . .
commerce” is a “continuing offense and, except as otherwise expressly provided
by enactment of Congress, may be inquired of and prosecuted in any district from,
through, or into which such commerce . . . moves.”
Id. Section 2250 requires that a
defendant “travel[] in interstate . . . commerce,”
id. § 2250, so a violation is a
continuing offense. Accordingly, Kopp can be prosecuted in Georgia under either
provision of section 3237(a).
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