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This order and judgment is not binding precedent except under the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

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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