United States v. Kueker

FILED
United States Court of Appeals
Tenth Circuit
November 3, 2009
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 09-8052
v. (D. Wyoming)
ROBERT JOHN KUEKER, (D.C. No. 08-CR-00273-1-WFD)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, SEYMOUR, and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
On November 20, 2008, defendant and appellant Robert John Kueker was
charged by indictment with failure to register as a sex offender in accordance with
the Sex Offender Registration and Notification Act (“SORNA”), in violation of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
18 U.S.C. § 2250(a). On November 25, he pled not guilty, and on December 15,
Mr. Kueker filed a motion to dismiss the indictment. Following a hearing on
January 8, 2009, the motion was denied.
Following the denial of his motion to dismiss, Mr. Kueker entered a
conditional guilty plea under Fed. R. Crim. P. 11(a)(2), pursuant to a plea
agreement with the government. The agreement preserved for Mr. Kueker the
opportunity to appeal the district court’s denial of his motion to dismiss.
Mr. Kueker was sentenced to thirty-seven months’ imprisonment, followed by ten
years of supervised release. This appeal followed, in which we affirm the denial
of Mr. Kueker’s motion to dismiss.
BACKGROUND
In 1997, in El Paso County, Colorado, Mr. Kueker was convicted of
criminal attempt to commit sexual assault on a juvenile. He was sentenced to
four years imprisonment, was paroled in 2000, was returned to custody that same
year, and eventually completed his sentence on January 16, 2003. On January 17,
2003, after completion of his sentence, Mr. Kueker signed an acknowledgment
that he was required to register as a sex offender under Colorado law and that, if
he later moved or relocated outside of Colorado, he would be required to register
in his new state of residence.
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On January 20, 2004, Mr. Kueker registered as a sex offender in Illinois.
On October 8, 2004, Mr. Kueker was convicted of unlawfully failing to register as
a sex offender in Randolf County, Illinois, and was sentenced to thirty months’ in
prison. He was discharged from that sentence on January 12, 2006. Mr. Kueker
was subsequently convicted, again, for failing to keep his sex offender
registration current, and he was sentenced to two years in prison. He was
discharged from that sentence on July 18, 2007.
At some point in 2008, Mr. Kueker moved to Wyoming. He apparently
stayed at the Comea House Shelter in Cheyenne, Wyoming, throughout the
summer of 2008, before he moved to the Central Wyoming Rescue Mission in
Casper, Wyoming. He remained there until he was arrested in connection with
the instant case in October 13, 2008. Mr. Kueker never registered as a convicted
sex offender in Wyoming. As indicated above, he ultimately pled guilty to failure
to register as a sex offender under SORNA, which is a violation of 18 U.S.C.
§ 2250(a).
On appeal, Mr. Kueker argues: (1) his right to due process has been
violated because (a) his original sex offense occurred prior to the enactment of 18
U.S.C. § 2250, and he therefore did not have notice and fair warning that his
failure to register would violate the federal statute, SORNA, (b) at the time of his
conviction for failing to register, he was unable to register because Wyoming had
not yet enacted laws to fully comply with SORNA, and (c) he was unable to
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register under the plain language of SORNA, 42 U.S.C. § 16913(b); (2) punishing
him for violating SORNA violates the Ex Post Facto clause; (3) 18 U.S.C.
§ 2250(a)(2)(A) violates the Commerce Clause by punishing purely local
intrastate activity that does not substantially affect interstate commerce; and (4) if
SORNA forces Wyoming to register sex offenders before it has the opportunity to
comply with SORNA, SORNA violates the Tenth Amendment. He also argues,
more generally, that SORNA simply does not apply to him. 1
Mr. Kueker concedes that “many if not all” of his arguments are foreclosed
by Tenth Circuit precedent, but he “wish[es] to preserve his position by this
appeal.” Appellant’s Br. at 32. We affirm the denial of Mr. Kueker’s motion to
dismiss the indictment filed against him, concluding that all but one of the issues
raised are indeed foreclosed by circuit precedent and that Mr. Kueker lacks
standing to argue the one new issue raised.
DISCUSSION
Mr. Kueker pled guilty to a violation of 18 U.S.C. § 2250. A violation of
§ 2250 is established by showing that an offender “(1) is required to register
under [SORNA]”; “(2)(B) travels in interstate . . . commerce”; and “(3)
1
Both parties phrase the issues in a variety of ways, at times using
overlapping and/or redundant allegations and concepts. We have done our best to
distill the issues as we see them so that we can then address in a coherent and
comprehensible fashion.
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knowingly fails to register or update a registration as required by [SORNA].” 18
U.S.C. § 2250. SORNA was enacted in July 2006, and applies to anyone
“convicted of a sex offense,” 42 U.S.C. § 16911(1), regardless of the date of the
offense, 28 C.F.R. § 72.3. See United States v. Hinckley, 550 F.3d 926, 929-30
(10 th Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009). It requires the sex offender
to “register, and keep the registration current, in each jurisdiction where the
offender resides.” 42 U.S.C. § 16913(a). This registration requirement for sex
offenders was “not subject to any deferral of effectiveness” and thus “took effect
when SORNA was enacted.” Hinckley, 550 F.3d at 929. SORNA also includes
various requirements for states to incorporate into their registration procedures,
but states were given a three-year grace period to implement them, lest their
federal funding be reduced. See United States v. Gould, 568 F.3d 459, 464 & n.3
(4 th Cir. 2009).
As indicated, Mr. Kueker argues that SORNA’s sex-offender registration
provisions do not apply to him and that, if they are construed to do so, they run
afoul of several constitutional provisions. Recent cases from our circuit, both
published and unpublished, directly address and foreclose Mr. Kueker’s efforts to
avoid application of SORNA. See United States v. Gibson, No. 09-8022, 2009
WL 3193527 (10 th Cir. Oct. 7, 2009) (unpublished). The fact that his sex offense
predated SORNA does not preclude his prosecution for the registration violation,
particularly as the violation occurred in connection with interstate travel
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following SORNA’s passage. See Hinckley, 550 F.3d at 929-30; United States v.
Husted, 545 F.3d 1240, 1244 (10 th Cir. 2008). Nor is Mr. Kueker’s registration
violation excepted from SORNA’s reach because Wyoming had not implemented
all the requirements specified in SORNA. It is sufficient to establish a SORNA
violation that Mr. Kueker knowingly failed to register in Wyoming; the state’s
own failure to implement SORNA requirements may “result[] in a 10% reduction
of Federal justice assistance funding, [but] not in an excuse for an offender who
has failed to register.” Hinckley, 550 F.3d at 939 (internal quotation marks
omitted).
Mr. Kueker’s constitutional arguments fare no better. He argues that his
due process rights were violated in several respects. First, he argues he lacked
notice that his conduct violated SORNA. This is belied by the fact that he did
register in Illinois and Colorado, and he was convicted twice for failing to keep
his registration current in Illinois. See Hinckley, 550 F.3d at 938 (rejecting what
“amounts to an ignorance of the law argument” (internal quotation marks
omitted)); United States v. Lawrance, 548 F.3d 1329, 1338 (10 th Cir. 2008).
Mr. Kueker also asserts that it is unfair to prosecute him when, he claims, it was
impossible for him to comply with SORNA because Wyoming had not
implemented all the directives that SORNA required it to adopt. This contention
rests on the same misconception as his previous argument that Wyoming’s
registration scheme falls outside SORNA’s reach. Again, a sex offender complies
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(or fails to comply) with SORNA by complying (or failing to comply) with the
duty to register as a sex offender with the state; whether the state implemented
SORNA requirements may affect its federal funding, but not the sex offender’s
criminal liability for failing to register. Noting the same point, we rejected a
similar impossibility-of-compliance argument in Hinckley, 550 F.3d at 939.
Mr. Kueker also contends that his conviction violates the Ex Post Facto
Clause by “[p]unishing [him] for failing to register under SORNA when he had no
duty o register.” Appellant’s Br. at 25. But once he moved to Wyoming after
SORNA’s enactment, federal law required him to register in that state. He
violated that duty. See Lawrance, 548 F.3d at 1334 (observing that SORNA was
“intended as a means of preventing sex offenders from evading their registration
requirements by crossing state lines”). To the extent Mr. Kueker argues that
SORNA also violated the Ex Post Facto Clause by increasing the punishment for
his earlier sex offense, this court has already made clear that SORNA does not
punish the underlying sex offense but, rather, the offender’s subsequent
registration violation following interstate travel. It does not, therefore, run afoul
of the constitutional prohibition on after-the-fact increases in punishment. See
Hinckley, 550 F.3d at 936-38; Lawrance, 548 F.3d at 1333-34.
Mr. Kueker’s challenge to SORNA under the Commerce Clause likewise
misses the mark. He focuses his challenge on § 2250(a)(2)(A), but he was not
prosecuted under that provision. Rather, he was convicted under § 2250(a)(2)(B),
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which this court has upheld as a proper federal legislative power under the
Commerce Clause: “By requiring that a sex offender travel in interstate
commerce before finding a registration violation, SORNA remains well within the
constitutional boundaries of the Commerce Clause.” Hinckley, 550 F.3d at 940.
The one new constitutional challenge raised by Mr. Kueker is that SORNA
impermissibly burdens Wyoming, in violation of the Tenth Amendment, by
requiring it to register sex offenders before it has voluntarily implemented
SORNA by incorporating all of SORNA’s registration requirements into its own
registration scheme. But SORNA defendants lack standing to assert such claims,
which concern rights of the state, not individuals. In United States v. Parker, 362
F.3d 1279, 1284-85 & n.4 (10 th Cir. 2004), we held that individuals do not have
standing to assert Tenth Amendment claims unless their interests are aligned with
the state’s interests. A SORNA defendant prosecuted for violating state sex-
offender registration requirements can hardly claim his interest aligns with that of
the state whose law the federal government is enforcing. See United States v.
Hacker, 565 F.3d 522, 527 (8 th Cir. 2009).
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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