United States v. LeTourneau ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 4, 2009
No. 08-40919 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TOMMY EDWARD LETOURNEAU,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:07-CR-855-ALL
Before DAVIS, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Tommy Edward Letourneau appeals his conviction
for failing to register in accordance with the Sex Offender Registration and
Notification Act (“SORNA”). We AFFIRM.
I.
In 2004, Letourneau was convicted under Tennessee law of attempted
sexual battery and sentenced to six years’ imprisonment. Before his 2007
release, Letourneau signed a pre-release registration form in which he
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-40919
acknowledged receiving notice of Tennessee’s sex offender reporting
requirements. Although the notice did not mention SORNA or expressly explain
Letourneau’s duty to re-register in a new state if he moved there, it did state
that he was required to notify Tennessee authorities of any change of address,
even a temporary one.
After his release, Letourneau left Tennessee and traveled to Brownsville,
Texas, where he assumed the alias Pablo or Paul Rutherford. He never reported
his move to Tennessee authorities nor did he register as a sex offender in Texas.
Texas authorities eventually discovered Letourneau and the fact that he was a
convicted sex offender. Although they informed him that he needed to register
as a sex offender in Texas, he never did. Consequently, Letourneau was arrested
for failing to register as a sex offender in violation of SORNA. When questioned,
he admitted to knowing he was supposed to register in Texas but claimed he was
unaware of how much time he had to do so. After he was indicted, Letourneau
moved to dismiss the indictment on a number of constitutional grounds, but the
district court denied his motion. Ultimately, a jury found Letourneau guilty as
charged, and the district court sentenced him to fifty-one months’ imprisonment
followed by a life term of supervised release. Letourneau timely appealed his
conviction.
II.
Letourneau makes several constitutional challenges to his conviction. This
court ordinarily reviews de novo a district court’s denial of a motion to dismiss
an indictment and the underlying constitutional claims. United States v. Kay,
513 F.3d 432, 440 (5th Cir. 2007), cert. denied, 129 S. Ct. 42 (2008). But where
the defendant fails to present a challenge to the district court, this court will
review only for plain error. United States v. Fuchs, 467 F.3d 889, 900 (5th Cir.
2006). Accordingly, we review Letourneau’s Commerce Clause challenge for
plain error and his Due Process Clause and non-delegation challenges de novo.
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No. 08-40919
Our recent decision in United States v. Whaley, ___ F.3d ___, 2009 WL
2153651, at *1-2 (5th Cir. July 21, 2009), thoroughly sets forth the SORNA
provisions relevant to this appeal, explaining that 42 U.S.C. § 16913 delineates
when and how a sex offender must register and 42 U.S.C. § 2250 provides a
federal criminal penalty in the event § 16913 is violated.
A.
Letourneau first contends that SORNA’s registration, § 16913, and
penalty, § 2250, provisions exceed Congress’s authority under the Commerce
Clause. But this court recently held in Whaley that both § 16913 and § 2250 are
a valid exercise of Congress’s Commerce Clause power. 2009 WL 2153651, at
* 2-6 (“[W]e conclude that requiring sex offenders to register both before and
after they travel in interstate commerce – which clearly facilitates monitoring
those movements and which has a minimal practical impact on intrastate sex
offenders . . . – is ‘reasonably adapted’ to the goal of ensuring that sex offenders
register and update previous registrations when moving among jurisdictions.”).
Letourneau’s challenge is thus foreclosed by circuit precedent, so we do not
consider it further. See United States v. Duarte, 569 F.3d 528, 531 (5th Cir.
2009).
B.
Letourneau next argues that his conviction violates the Due Process
Clause because he never received notice of his duty to register under SORNA.
This court’s decision in Whaley, like every other circuit to address this
issue, held that “notice of a duty to register under state law is sufficient to
satisfy the Due Process Clause.” 2009 WL 2153651, at *6 (citing United States
v. Gould, 568 F.3d 459, 468-69 (4th Cir. 2009); United States v. Dixon, 551 F.3d
578, 584 (7th Cir. 2008); United States v. Hinckley, 550 F.3d 926, 938 (10th Cir.
2008), cert. denied, 129 S. Ct. 2383 (2009); United States v. May, 535 F.3d 912,
921 (8th Cir. 2008), cert. denied, 129 S. Ct. 2431 (2009)).
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No. 08-40919
Although the facts pertaining to notice in Whaley differ slightly from the
facts pertaining to notice here, the distinction is without a difference. Upon his
release from prison, Whaley signed a notice that informed him of his duty to re-
register in any new state to which he moved. See id. at *1. While the pre-
registration form that Letourneau signed upon his release from prison was silent
as to his duty to re-register in a new state to which he moved, it explicitly stated
that he was to inform Tennessee authorities in the event any of his registration
information, e.g. his address, changed.1 Under SORNA, when a sex offender
changes his “name, residence, [or] employment,” he need only “appear in person
in at least 1 jurisdiction involved . . . and inform that jurisdiction of all changes
in the information required for that offender in the sex offender registry.” §
16913(c). Thus, had Letourneau notified Tennessee authorities of his change in
address – a requirement that he acknowledged receiving notice of – he would
have been in compliance with SORNA. Consistent with Whaley, then, because
Letourneau had notice of his duty to register under state law (and failed to
comply), he received due process of law. See Whaley, 2009 WL 2153651, at *6.
C.
Letourneau’s final argument is that SORNA violates the non-delegation
doctrine by improperly delegating legislative powers to the Executive Branch by
1
The form Letourneau signed stated in relevant part:
• “[I]f any information changes on my registration form even temporarily,
for any reason longer than 10 days, I must notify TBI’s [Tennessee
Bureau of Investigation’s] Sexual Offender Registry . . . or be subject to
the penalties of the law.”
• “If an offender knowingly does any of the following, the offender may be
prosecuted . . . on a Class E felony violation of the registration laws:
“failure . . . to timely register, . . . failure to timely disclose required
information to a designated law enforcement agency, . . . . [or] failure to
timely report to the offender’s designated law enforcement agency when
the offender moves to another state.”
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No. 08-40919
directing the Attorney General to decide whether and how a sex offender with
a conviction pre-dating SORNA will be subject to its requirements.2 In Whaley,
we held that “[t]he delegation to the Attorney General to determine the
retroactive applicability of SORNA is well within the limits of permissible
delegation.” 2009 WL 2153651, at *8. Thus, this issue is foreclosed by circuit
precedent. See Duarte, 569 F.3d at 531.
III.
For the above reasons, the district court’s judgment is AFFIRMED.
2
For sex offenders “unable to comply” with the initial registration requirements
in § 16913(b), SORNA delegated to the Attorney General the authority to determine SORNA’s
applicability. See § 16913(d).
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