Monday, March 14, 2011

U.S. vs. Fernandes, No. 09-30135 (3-14-11)(Per curiam with Thomas, Graber, and Tallman). Must a court order a defendant convicted of abusive sexual contact under 18 U.S.C. 2244(b) to register as a sex offender? The defendant here worked as a security officer at a national park when he fondled and groped an intoxicated female employee in her room without her permission. The court sentenced the defendant to probation, but refused to require registration. The court explained that there was no need for registration as the defendant had no priors, and would be unlikely to repeat such an offense. It does not matter, explains the 9th, which reverses and amends with instructions to put registration as a condition. Under the statutes, the defendant was convicted of a sexual offense, he is defined as a sexual offender, and so he must register. There is no discretion afforded. The defendant's arguments about discretion under Booker and parsimony do not trump a congressional mandate. The constitutional challenge is also denied.

U.S. vs. W.P.L. (juvenile), No. 10-30202 (3-14-11) (Per curiam with Thomas, Graber, and Tallman). The juvenile facially challenges the district court's condition of SR that he register as a sex offender "if required by law." The 9th holds that the issue isn't ripe yet. If the juvenile is required to register, and he believes he is not required to, or is not subject to such registration, then he can bring an "as applied" challenge.


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