United States v. Terrence Shannon

NOT RECOMMENDED FOR PUBLICATION
File Name: 13a0060n.06
No. 11-3582
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jan 14, 2013
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
TERRENCE SHANNON, ) OHIO
)
Defendant-Appellant. )
Before: SILER and KETHLEDGE, Circuit Judges; MURPHY, District Court Judge.*
SILER, Circuit Judge. Defendant Terrence Shannon pled guilty to one count of possession
of a firearm by a felon in violation of 18 U.S.C. § 922(g). The district court sentenced Shannon to
52 months of imprisonment and ordered that he register as a sex offender under the Sex Offender
Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901, for his earlier juvenile offender
adjudication for gross sexual imposition, in violation of Ohio Rev. Code § 2907.05.
On appeal, Shannon raises three issues regarding his sentencing. First, whether the district
court erred in applying a four-level enhancement for possession of a firearm in connection with
another felony offense pursuant to USSG § 2K2.1(b)(6). Second, whether the district court properly
ordered Shannon to register as a sex offender under SORNA as a condition of supervised release.
*
The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District
of Michigan, sitting by designation.
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United States v. Shannon
Third, whether the SORNA registration requirement violates the Ex Post Facto Clause of the U.S.
Constitution. See U.S. Const. art. I, § 9, cl. 3. We AFFIRM.
I.
Shannon was arrested in 2010, after officers found him in possession of a loaded handgun
and 2.2 grams of crack cocaine. He pled guilty to the firearm charge. His presentence investigation
report (“PSR”) assigned Shannon a total offense level of twenty-one and a criminal history category
of IV, and recommended an imprisonment range of 57 to 71 months. Shannon objected to a four-
level enhancement to his base level offense for possession of a firearm in connection with another
felony, arguing that he carried the firearm for protection and not for criminal activity. He also
objected to the probation officer’s recommendation that he register as a sex offender under SORNA,
arguing that he should not be required to comply because as a juvenile delinquent he was not
convicted of a crime.
At sentencing, the district court imposed a four-level enhancement for use of a firearm in
connection with another felony offense under USSG § 2K2.1(b)(6). The district court found that the
United States met its burden of showing that the enhancement should apply. The district court
granted Shannon’s objection with respect to state law sex offender registration but denied the
objection as it applies to federal registration, requiring that he register in Ohio pursuant to Section
113 of the Adam Walsh Child Protection and Safety Act of 2006.
The district court sentenced Shannon to concurrent terms of 52 months, departing downward
from the guidelines range, and required him to register as a sex offender.
II.
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A four-level enhancement to the defendant’s base offense level applies if the defendant “used
or possessed any firearm or ammunition in connection with another felony offense.” USSG § 2K2.1.
“Possession of firearms that is merely coincidental to the underlying felony offense is insufficient”
to warrant an application of the enhancement. United States v. Taylor, 648 F.3d 417, 432 (6th Cir.
2011). We review the sentencing court’s factual findings for clear error and accord “due deference”
to the sentencing court’s determination that the firearm was used or possessed “in connection with”
the other felony. Id. at 430-31.
Shannon argues that the government failed to satisfy its burden and offered no proof that the
firearm was possessed in connection with the drugs or another felony. When considering whether
there is a connection between a gun and a drug offense, we consider the proximity of the gun to the
drugs and whether the defendant has an innocent explanation for the firearm. Id. at 432. However,
an “alternative explanation for the presence of a gun does not preclude that gun from also being used
to facilitate a drug offense.” United States v. Oglesby, 210 F. App’x 503, 507 (6th Cir. 2007). The
close proximity of the firearm and the drugs, while not dispositive, is itself evidence of a nexus
between the two. See United States v. Davis, 372 F. App’x 628, 629 (6th Cir. 2010) (noting that “we
have stopped short of finding close proximity dispositive” and instead have held proximity is
“certainly indicative of a connection between the guns and the drugs”).
The district court never explicitly stated what specific drug offense constituted the
independent felony connected to the firearm, but it noted that Shannon had no visible means of
support, which suggests that Shannon was involved in drug trafficking as opposed to merely carrying
the drugs for personal use. This inference is further supported by Shannon’s statement to the
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probation officer that he did not use crack cocaine–with the exception of one occasion without his
prior knowledge–and that he did not enjoy the experience. This evidence distinguishes United States
v. Shields, a case on which Shannon relies, where this court held that the § 2K2.1(b)(6) enhancement
did not apply to a defendant who was caught carrying a gun with a small amount of marijuana, in
part because the government presented no evidence that the defendant was engaged in drug
trafficking. 664 F.3d 1040, 1045 (6th Cir. 2011). The district court properly applied the four-level
enhancement.
III.
Shannon argues that the district court abused its discretion when it ordered, as a special
condition of supervised release, that he comply with SORNA’s registration requirement.
Specifically, he contends that the district court must give a rationale in open court for mandating
special conditions of supervised release, which the court did not do here. But Shannon is mistaken
about the nature of the condition at issue. A requirement to register under SORNA is a mandatory
(or so-called “explicit”) condition of supervised release, rather than a special condition of it. See 18
U.S.C. § 3583(d); accord United States v. Ossa-Gallegos, 491 F.3d 537, 540 (6th Cir. 2007) (en
banc). Thus, if Shannon met SORNA’s registration requirements, the district court was statutorily
required to impose registration as a condition of supervised release.
Additionally, Shannon challenges the procedure by which the district court imposed the
condition of supervised release, arguing that the district court did not clearly determine at the
sentencing hearing whether his previous conduct was “comparable to or more severe than aggravated
sexual abuse or an attempt or conspiracy to commit such an offense” as defined by the SORNA
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provision which requires registration by juveniles age 14 or older who are adjudicated delinquent.
42 U.S.C. § 16911(1), (8). Aggravated sexual abuse is defined, in part, as knowingly causing, or
attempting to cause, another person to engage in a sexual act by using force against that person or
threatening death, serious bodily harm, or kidnapping. 18 U.S.C. § 2241(a). Shannon was
adjudicated delinquent for gross sexual imposition, which is defined under Ohio law as the
purposeful compulsion of another person to submit to sexual contact by force or threat of force.
Ohio Rev. Code § 2907.05(A)(1).
We review de novo a district court’s imposition of a mandatory condition of supervised
release. United States v. Marlow, 278 F.3d 581, 583 (6th Cir. 2002). Shannon was at least fourteen
years of age at the time of the juvenile offense. The district court stated that the incident “could have
turned into a rape situation,” that it “could have been much uglier than the ultimate disposition of
the case,” and that the GSI “sounds like it could have turned pretty violent.” Thus, even though the
district court did not expressly state that this offense was comparable to aggravated sexual abuse,
its comments amounted to such a finding. Although the court could have stated more clearly that
the comparability requirement was met, the record here shows that it was. The district court,
therefore, correctly decided that Shannon must comply with SORNA.
IV.
Shannon argues that the district court’s imposition of the SORNA registration requirement
violates the Ex Post Facto Clause of the U.S. Constitution. However, the Ex Post Facto Clause does
not forbid adoption of civil, regulatory measures with retroactive operation. See Smith v. Doe, 538
U.S. 84, 92 (2003) (finding Alaska’s sex-offender registration statute not punitive, but civil in nature,
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and not in violation of the Ex Post Facto Clause). A statute civil in nature cannot impose
punishment. Kan. v. Hendricks, 521 U.S. 346, 361 (1997); see Doe v. Bredesen, 507 F.3d 998, 1003
(6th Cir. 2007).
In United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012), we held that SORNA’s
registration requirements do not violate the Ex Post Facto Clause, as the statute does not increase
the punishment for the past conviction; rather, it provides for a conviction for failing to register.
At issue in this case is whether SORNA’s juvenile registration provision is nevertheless
punitive because, as Shannon argues, its effect is punitive. See Doe, 538 U.S. at 92-93. The juvenile
registration provision states:
The term “convicted” or a variant thereof, used with respect to a sex offense, includes
adjudicated delinquent as a juvenile for that offense, but only if the offender is 14
years of age or older at the time of the offense and the offense adjudicated was
comparable to or more severe than aggravated sexual abuse (as described in section
2241 of title 18, United States Code [18 USCS § 2241]), or was an attempt or
conspiracy to commit such an offense.
14 U.S.C. § 16911(8). In evaluating the punitive effect of SORNA’s juvenile registration provision,
we consider only the “clearest proof,” Doe, 538 U.S. at 92, and the factors spelled out in Kennedy
v. Mendoza-Martinez, 372 U.S. 144 (1963), in relation to the statute on its face. Seling v. Young,
531 U.S. 250, 262 (2001). In Doe, the Supreme Court applied the Mendoza-Martinez factors and
set forth the standard for evaluating whether a sex offender registration program violates the Ex Post
Facto Clause. Doe, 538 U.S. at 97-105. Other circuits have applied the Doe analysis in deciding
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whether SORNA registration for a juvenile sex offense violates the Ex Post Facto Clause.2
Likewise, we consider “whether, in its necessary operation, the regulatory scheme: has been regarded
in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes
the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is
excessive with respect to this purpose.” Doe, 538 U.S. at 92, 97.
The Doe Court stated that “[o]ur system does not treat dissemination of truthful information
in furtherance of a legitimate governmental objective as punishment.” Id. at 98. Additionally, there
is “no remaining requirement under SORNA that jurisdictions publicly disclose information about
sex offenders whose predicate sex offense ‘convictions’ are juvenile delinquency adjudications.”
See Office of the Attorney Gen., U.S. Dep’t of Justice, Supplemental Guidelines for Sex Offender
Registration and Notification, 76 Fed. Reg. 1630, 1632 (2011). Thus, the first Doe guidepost leads
us to conclude that SORNA is not “so punitive either in purpose or effect as to negate” Congress’s
intention to make it a civil regulatory statute, and it should not be equated with our nation’s historical
and traditional punishments. Doe, 538 U.S. at 92.
2
See United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012) (concluded that applying SORNA
to Elkins based on his state conviction as a juvenile sex offender is not punitive); United States v.
Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012) (“Juvenile Male II”) (finding that because
SORNA was the later-enacted, more specific provision, and because Congress was aware of the
Federal Juvenile Delinquency Act (“FJDA”), 18 U.S.C. § 031 et seq., “the district court properly
applied SORNA’s registration requirements to the juvenile defendants in these cases” and not all
applications of SORNA to individuals based on juvenile sex offender determinations are sufficiently
punitive to violate the Ex Post Facto Clause); United States v. W.B.H., 664 F.3d 848, 860 (11th Cir.
2011) (holding that the SORNA registration requirement is not punitive in effect such that it violates
the Ex Post Facto Clause when the defendant, convicted of a post-SORNA crime that is not a sex
offense, is required to register as a condition of supervised release because of a “pre-SORNA,
Alabama Youthful Offender conviction that is a sex offense.”).
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Next, we consider whether SORNA imposes an “affirmative disability or restraint” on those
it regulates. Id. at 100. Shannon is not physically restrained by the SORNA registration
requirement, nor is he likely to be more than inconvenienced by its conditions. Thus, SORNA does
not rise to the level of imposition of affirmative disability or restraint upon Shannon.
Third, we consider whether SORNA promotes the traditional aims of punishment, retribution
and deterrence. Id. at 102. Like the Alaska statute in Doe, SORNA’s regulatory regime is
reasonably related to the danger of recidivism posed by sex offenders. SORNA allows the public
and law enforcement to determine the whereabouts of convicted sex offenders, but it does not
directly restrict their mobility, employment, or how they spend their time. We have determined that
SORNA in not punitive in nature. Felts, 674 F.3d at 606. Therefore, we find that SORNA does
not promote the traditional aims of punishment.
The question of whether SORNA has a rational relationship to a nonpunitive purpose is the
“most significant” factor in determining whether a sex offender registration system is nonpunitive.
Doe, 538 U.S. at 102. The Court in Doe recognized that the Alaska sex offender registry had the
legitimate nonpunitive purpose of promoting public safety “by alerting the public to the risk of sex
offenders in their communit[y].” Id. at 103 (quotation marks omitted). The same is true of SORNA.
Finally, we determine whether SORNA is excessive with respect to its nonpunitive purpose.
The excessiveness question is not to determine “whether the legislature made the best choice
possible to address the problem it seeks to remedy,” but rather “whether the regulatory means chosen
are reasonable in light of the nonpunitive objective.” Id. at 105. With respect to the Tennessee state
sex offender registry, we found the regulatory scheme and its reporting requirements not to be
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excessive in Doe v. Bredesen, 507 F.3d at 1006. SORNA’s regulatory purpose and the means used
to achieve it is not materially different from that of the Alaska statute in Doe or the Tennessee state
registry. Unacknowledged by Shannon, the Guidelines issued by the Attorney General allow for
possible exemption from the dissemination of Shannon’s information. Thus, the degree to which
his information may be publicized is not at the level of “punishment” that Shannon would have this
court believe SORNA requires. Further, as acknowledged by the Eleventh Circuit in W.B.H., a lower
rate of recidivism among juveniles does not equate to no recidivism, and even if adults have a higher
recidivism rate, that does not mean that registration requirements are excessive. W.B.H., 664 F.3d
at 860. When considered with the intended safety benefits, the SORNA regulatory scheme is not
excessive.
In creating SORNA, Congress intended not to impose an additional punishment for past sex
offenses but instead to establish a civil regulatory scheme. Doe requires the “clearest proof” that
SORNA is so punitive in effect, as applied to juvenile delinquents, as to negate that intention.
Because Shannon has not offered the clearest proof to contradict Congress’s intention, we reject
Shannon’s ex post facto challenge of SORNA’s application to him.
AFFIRMED.
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