United States v. Mark Martinez ( 2014 )

Case: 09-50026 Document: 00512498495 Page: 1 Date Filed: 01/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-50026
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 13, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
MARK MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC 3:08-CR-1319-ALL
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Mark Martinez was convicted in 1991 in a Texas court of aggravated
sexual assault of a child; he was required by Texas law to register as a sex
offender for life and verify his registration annually. In 2008, Martinez was
charged with violating 18 U.S.C. § 2250 by knowingly failing to register as a
sex offender after traveling in interstate commerce, a violation of the Sex
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 09-50026
Offender Registration and Notification Act (“SORNA”). Following a bench
trial, the district court found Martinez guilty as charged. Martinez appealed.
The Government filed a motion for summary affirmance, asserting that
the issues raised by Martinez on appeal have been fully resolved by a recent
Supreme Court decision and by recent decisions by this court. See United
States v. Kebodeaux, 133 S. Ct. 2496 (2013); United States v. Heth, 596 F.3d
255 (5th Cir. 2010); United States v. Whaley, 577 F.3d 254 (5th Cir. 2009).
Summary affirmance is proper when “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as
to the outcome of the case.” Groendyke Transport, Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969).
Martinez’s first contention on appeal is that Congress lacked authority
under the commerce clause to enact SORNA. We have already determined
that it was within Congress’s power under the Commerce Clause to forbid sex
offenders from using the channels of interstate commerce to evade registration
requirements. Whaley, 577 F.3d at 258.
Martinez also makes two due process arguments on appeal. First, he
points out that no Texas statute implements SORNA. He argues, then, that
he had no duty to register, it would be impossible to do so, and he could have
no liability for failing to do so. We have already rejected a similar argument
by holding that “nothing in SORNA’s statutory scheme indicates that an
individual’s registration obligations are contingent upon a state’s
implementation of SORNA’s administrative requirements.” Heth, 596 F.3d at
259. Heth’s due process challenge was without merit, id., and so is Martinez’s.
Martinez argues a separate due process violation based on his failure to
receive any notice of SORNA or its registration requirements. This court has
rejected the argument that ignorance of SORNA’s requirements serves as a
defense to prosecution: “notice of a duty to register under state law is sufficient
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No. 09-50026
to satisfy the Due Process Clause.” Whaley, 577 F.3d at 262. Martinez was
aware that he was required to register under Texas law, signed documents to
that effect, and in fact did register in Texas. Martinez’s due process claims
have been addressed and rejected by this court. See Heth, 596 F.3d at 259;
Whaley, 577 F.3d at 262.
Finally, Martinez argues that actual knowledge of SORNA is a
requirement for conviction under Section 2250 for “knowingly failing to
register . . . .” To the contrary, “SORNA’s criminal provision is not a specific
intent law . . . . There is no language requiring specific intent or a willful
failure to register such that he must know his failure to register violated
federal law.” Whaley, 577 F.3d at 262 n.6 (quoting United States v. Gould, 568
F.3d 459, 468 (4th Cir. 2009)). A conviction under Section 2250 does not
require notice of SORNA but only “notice of a duty to register under state law.”
Whaley, 577 F.3d at 262.
Because there can be no substantial question as to the outcome of the
case, the Government’s motion for summary affirmance is GRANTED and the
judgment of the district court is AFFIRMED. Accordingly, the Government’s
alternative motion for an extension of time to file a responsive brief on the
merits is DENIED as moot.
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