FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30135
Plaintiff-Appellant,
v. D.C. No.
1:07-CR-30031-PA
JEFFREY DEAN FERNANDES,
OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Submitted March 7, 2011*
Portland, Oregon
Filed March 14, 2011
Before: Sidney R. Thomas, Susan P. Graber, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
*The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
3547
UNITED STATES v. FERNANDES 3549
COUNSEL
Suzanne A. Bratis, Assistant United States Attorney, Portland,
Oregon, for the plaintiff-appellant.
Robert M. Stone, Medford, Oregon, for the defendant-
appellee.
OPINION
PER CURIAM:
Defendant Jeffrey Dean Fernandes pleaded guilty to one
count of abusive sexual contact, a violation of 18 U.S.C.
§ 2244(b). While working as a privately employed security
guard at Crater Lake National Park, Defendant went into a
dorm room where an intoxicated co-worker lay on the bed.
Without her permission, Defendant unbuttoned her blouse. He
fondled and kissed her breasts. He also touched the woman’s
vagina over her pants. Defendant stopped the abuse when two
of his co-workers walked in and caught him in the act.
The district court sentenced Defendant to a term of proba-
tion. The government asked the court to require Defendant to
register as a sex offender, but the court refused. The court
observed that Defendant had no prior convictions for sex
offenses and found Defendant unlikely to repeat such an
offense. In those circumstances, the court did not see a need
to force Defendant to register as a sex offender and refused
to order Defendant to do so. The government timely appeals
that decision.
3550 UNITED STATES v. FERNANDES
[1] We review de novo the legality of a sentence. United
States v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991).
Title 18 U.S.C. § 3563(a) provides in relevant part:
The court shall provide, as an explicit condition of
a sentence of probation—
....
(8) for a person required to register under the Sex
Offender Registration and Notification Act [42
U.S.C. §§ 16911-16929], that the person comply
with the requirements of that Act[.]
A person must register if the person’s conviction renders the
person a “sex offender.” 42 U.S.C. § 16913(a). A “sex offend-
er” is “an individual who was convicted of a sex offense.” Id.
§ 16911(1). A “sex offense” is “a criminal offense that has an
element involving a sexual act or sexual contact with anoth-
er.” Id. § 16911(5)(A)(I). A violation of § 2244(b) thus
unquestionably suffices to trigger § 3563(a)(8).
Defendant does not dispute that his conviction makes him
a sex offender, rendering § 3563(a)(8)’s registration require-
ment applicable to him. Yet, for three reasons, Defendant
argues that the district court did not err by refusing to require
his registration. None of those reasons persuades us.
[2] First, relying principally on United States v. Booker,
543 U.S. 220 (2005), and Kimbrough v. United States, 552
U.S. 85 (2007), Defendant asks us to read the registration
requirement in § 3563(a)(8) as discretionary, despite
§ 3563(a)(8)’s clear directive that the district court shall
require persons such as Defendant to register as sex offenders
as a condition of probation. Although the Supreme Court held
in Booker and reaffirmed in Kimbrough that the federal Sen-
tencing Commission may not compel the judiciary to pass a
UNITED STATES v. FERNANDES 3551
particular sentence for a specified crime, the Court has held
that Congress may. See Mistretta v. United States, 488 U.S.
361, 364 (1989) (“Congress, of course, has the power to fix
the sentence for a federal crime, and the scope of judicial dis-
cretion with respect to a sentence is subject to congressional
control.” (citation omitted)). We therefore reject Defendant’s
assertion that Booker and Kimbrough apply when, as here,
Congress, by statute, has fixed the terms of a person’s proba-
tion upon a conviction for a specified crime.
[3] Second, Defendant argues that the parsimony principle
in 18 U.S.C. § 3553(a)1 supersedes the mandatory nature of
§ 3563(a)(8)’s registration requirement because 18 U.S.C.
§ 3551(a) states that, “[e]xcept as otherwise specifically pro-
vided, a defendant . . . shall be sentenced . . . so as to achieve
the purposes set forth in . . . section 3553(a)(2).” We disagree.
The “except as otherwise provided” clause in § 3551 shows
that § 3553(a)’s general parsimony principle does not control
if Congress elsewhere has made a particular condition of a
sentence mandatory. Section 3563(a)(8) plainly mandates a
condition of Defendant’s probation. Nothing in § 3551 or
§ 3553 affects the mandatory nature of that condition.
[4] Finally, Defendant challenges the constitutionality of
§ 3563(a)(8).2 He argues that, by requiring sex offenders to
register as a condition of their probation, § 3563(a)(8) violates
procedural due process.3 In Connecticut Department of Public
Safety v. Doe, 538 U.S. 1 (2003), the Supreme Court rejected
1
Section 3553(a) requires a court to impose a sentence “sufficient, but
not greater than necessary” to achieve the purposes set out in § 3553(a)(2).
2
Defendant’s separate assertion that the Sex Offender Registration and
Notification Act is an invalid exercise of Congress’ power under the Com-
merce Clause was rejected by this court in United States v. George, 625
F.3d 1124, 1130 (9th Cir. 2010).
3
Defendant also asserts that § 3563(a)(8) violates his substantive due
process right. By failing to bolster that assertion with any argument in his
brief, Defendant has waived that issue on appeal. Cmty. House, Inc. v. City
of Boise, 623 F.3d 945, 959 n.2 (9th Cir. 2010).
3552 UNITED STATES v. FERNANDES
an analogous challenge to a state sex offender registration
statute. See id. at 7. As the Eleventh Circuit has recognized,
Doe forecloses due process challenges to the federal statute
such as that raised by defendant. See United States v. Ambert,
561 F.3d 1202, 1208 (11th Cir. 2009). Defendant was
afforded due process in his criminal proceeding and chose to
plead guilty to a sex offense. Requiring Defendant to register
as a sex offender does not violate his right to procedural due
process.
[5] REVERSED and REMANDED with instructions to
amend the conditions of probation to require Defendant to
register as a sex offender.