United States v. Troy Powell

Case: 14-11055 Document: 00513122865 Page: 1 Date Filed: 07/21/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-11055
Fifth Circuit
FILED
Summary Calendar July 21, 2015
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
TROY E. POWELL,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:14-CR-7-1
Before JOLLY, JONES, and HIGGINSON, Circuit Judges
PER CURIAM: *
A court without a jury convicted Troy E. Powell of failing to register as a
sex offender under the Sex Offender Registration and Notification Act
(SORNA). Powell was convicted of the sexual assault of a child in Colorado in
1992, and he failed to register when he moved to Texas in 2013. The court
varied upward from the advisory guideline range and sentenced Powell to 48
months in prison.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-11055
In his first claim, Powell contends that the Government failed to carry
its burden of proving that he was required to register in Texas under Texas
law. He further asserts that there was no proof that his Colorado offense would
have required registration under Texas law. Powell’s argument is
fundamentally meritless under the plain language of the applicable federal
statutes. A person is required to register under SORNA if he “was convicted
of a sex offense.” 42 U.S.C. § 16911(1). A “sex offense” is expansively defined
as “a criminal offense that has an element involving a sexual act or sexual
contact with another.” United States v. Gonzalez-Medina, 757 F.3d 425, 428
(5th Cir. 2014), cert. denied, 135 S. Ct. 1529 (2015) (quoting § 16911(5)(A)(i)).
Powell does not assert that his Colorado offense was not a sex offense as
defined by § 16911(5)(A)(i). Powell’s obligation to register was triggered by
that Colorado conviction for a sex offense, as defined by federal law, wholly
apart from Texas law. See Gonzalez-Medina, 757 F.3d at 428. Powell’s
comparison of Colorado and Texas law is irrelevant because it is based on the
defective premise that his duty to register was required to arise from Texas
law.
In his second claim, Powell challenges his sentence. We review the
sentence for reasonableness under an abuse-of-discretion standard. See Gall
v. United States, 552 U.S. 38, 46 (2007); Rita v. United States, 551 U.S. 338,
351 (2007). Powell argues that the district court committed “procedural error”
by “selecting a sentence based on clearly erroneous facts.” Gall, 552 U.S. at
51. Over Powell’s objection, the district court considered three letters written
by Powell’s teen-aged daughter in which she recounted Powell’s sexual abuse
of her. Powell argues that the letters were unsworn hearsay, that his
daughter’s “intellectual capabilities are beneath her age,” and that she gave
materially inconsistent accounts of sexual assault.
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Case: 14-11055 Document: 00513122865 Page: 3 Date Filed: 07/21/2015
No. 14-11055
“No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense which
a court of the United States may receive and consider for the purpose of
imposing an appropriate sentence.” 18 U.S.C. § 3661; see Pepper v. United
States, 562 U.S. 476, 490-91 (2011). The sentencing court was free to “consider
any relevant evidence,” including “uncorroborated hearsay evidence”
regardless of “its admissibility under the rules of evidence applicable at trial,
provided the information has sufficient indicia of reliability.” United States v.
Andaverde-Tinoco, 741 F.3d 509, 525 (5th Cir. 2013) (internal quotation marks
and citations omitted), cert. denied, 134 S. Ct. 1912 (2014); see U.S.S.G.
§ 6A1.3(a).
The district court reasoned that the letters were sufficiently reliable to
show that Powell sexually abused his daughter and that she had conflicting
feelings about him, so that the letters were not simply the product of
unprovoked malice. Despite the daughter’s limited writing ability, her letter
to the court and her two letters to Powell ably express her shame, fear,
disappointment, and sadness arising from Powell’s sexual abuse and his
unwillingness to change. The district court did not abuse its discretion by
considering the letters, and Powell fails to show that the sentence was based
on clearly erroneous facts.
The judgment is AFFIRMED.
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