Kirschenhunter v. Sheriff's Office, Beauregard Parish , 165 F. App'x 362 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-31250
Summary Calendar
JAMES E. KIRSCHENHUNTER,
Plaintiff-Appellant,
versus
SHERIFF’S OFFICE, BEAUREGARD PARISH; LOUISIANA DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONS; STATE OF LOUISIANA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:04-CV-2448
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Before JONES, Chief Judge, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
James E. Kirschenhunter appeals the district court’s
dismissal of his motion to enjoin the Louisiana Department of
Public Safety and Corrections and the Beauregard Parish Sheriff’s
Office from requiring him to register with them as a sex offender
pursuant to La. R.S. 15:542.1(H)(3)(b). Kirschenhunter contended
in the motion that application of the statute to him violated the
United States Constitution’s Ex Post Facto and Contract Clauses.
Kirschenhunter argues on appeal that the district court did
*
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this opinion should not be published and is not precedent except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. 04-31250
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not fully consider the issues raised in his motion when it
considered only the applicability to him of the community
notification requirement contained in La. R.S. 15:542.1(L),
rather than the entirety of La. R.S. 15:542.1, especially La.
R.S. 15:542.1(A), which mandates that the section applies only to
those committing certain offenses after July 1, 1997. However,
the district court considered La. R.S. 15:542.1(H)(3)(b)’s
requirement that offenders register with the sheriff, rather than
La. R.S. 15:542.1(L)’s community notification requirement. As
the district court determined, La. R.S. 15:542.1(H)(3)(b) is
applicable to Kirschenhunter pursuant to La. R.S. 15:542(C),
which does not limit the offenses to which it is applicable to
those occurring after a certain date. See La. R.S. 15:542.
Kirschenhunter provides no facts or arguments indicating that La.
R.S. 15:542.1 was applied directly to him, rather than pursuant
to La. R.S. 15:542(C), or that any portions of La. R.S. 15:542.1
other than section H were applied to him.
To the extent Kirschenhunter is appealing the district
court’s determination that La. R.S. 15:542 ’s registration
requirement does not violate the Ex Post Facto Clause, as
Kirschenhunter concedes, this issue lacks merit. See Moore v.
Avoyelles Correctional Center, 253 F.3d 870, 872 (5th Cir. 2001);
State ex rel Olivieri v. State, 779 So. 2d 735, 749-50 (La.
2001). Kirschenhunter’s first offender pardon does not relieve
him of his duty to register. See State v. Moore, 847 So. 2d 53,
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63 (La. Ct. App. 2003). Accordingly, Kirschenhunter has not
shown that the district court abused its discretion in deciding
these issues. See Peaches Entertainment Corp. v. Entertainment
Repertoire Assocs., Inc., 62 F.3d 690, 693 (5th Cir. 1995).
Kirschenhunter also argues that the district court did not
consider his argument that application of the registration
statute violates the Contract Clause. He contends that his plea
agreement with the state was a contract that was completed upon
his pardon and that the statute impairs this contract. The
district court did not consider this argument in its opinion.
However, because the argument is completely lacking in merit, the
interests of judicial economy would best be served by not sending
this case back to the district court for consideration of this
issue. Kirschenhunter has not provided a copy of the plea
agreement or indicated what provisions were violated by the
statute. As Kirschenhunter was admonished at his plea hearing,
the court was not bound to follow the plea agreement in
sentencing Kirschenhunter. Furthermore, Kirschenhunter provides
no facts or arguments indicating that the pardon constituted a
contractual agreement between him and the state. See General
Motors Corp. v. Romein, 503 U.S. 181, 186-87 (1992) (every
Contract Clause analysis begins with the inquiry whether there is
a contractual relationship regarding the matter that is the
subject of state regulation).
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Kirschenhunter also argues that there was a conspiracy to
deprive him and another person whom he was assisting in a legal
matter of their constitutional rights through threats and
intimidation. However, because Kirschenhunter is raising this
issue for the first time on appeal, this court will not consider
it. See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342
(5th Cir. 1999).
AFFIRMED.