United States v. Roberson

United States Court of Appeals
For the First Circuit

No. 13-1925

UNITED STATES OF AMERICA,

Appellee,

v.

JAMES ROBERSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

Thomas J. O'Connor. Jr. for appellant.
Alex J. Grant, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.

May 21, 2014
 LYNCH, Chief Judge. This case addresses an important

question of interpretation of first impression in the federal

courts of appeals. Defendant James Roberson appeals from a

district court denial of his motion to dismiss and from his

criminal conviction for his failure to register as a sex offender

under SORNA, the Sex Offender Registration and Notification Act.

18 U.S.C. § 2250.

At the time of his federal indictment in July 2012,

Roberson stood convicted, in 1998, of the Massachusetts crime of

indecent assault and battery on a child under the age of 14. Mass.

Gen. Laws ch. 265, § 13B. He did not appeal from that conviction;

nor did he ever register as a sex offender at any time between 2010

and 2012, though he had been notified of his obligation to do so.

Four months after his federal SORNA indictment, on

November 16, Roberson moved to withdraw his guilty plea to the sex

crime in the state court. Roberson did not and does not allege

that he was innocent of the indecent assault. But he did allege

that his guilty plea had entered after a constitutionally defective

procedure. The local prosecutor did not oppose the motion because

the plea judge had utilized incomplete and inadequate plea-colloquy

procedures before June 16, 2000 and there was no independent

evidence that the proper plea procedures were followed during

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Roberson's March 4, 1998 plea hearing.1 The local state district

court allowed the unopposed motion on January 11, 2013. We assume

arguendo that Roberson's plea colloquy was constitutionally

defective.

On February 15, 2013, Roberson moved to dismiss his

federal charges on the basis that he no longer had a predicate sex

offense to support a SORNA violation. More specifically, he argued

that because of the constitutional defect, he was never "validly"

convicted. He argued that his case is governed by Burgett v.

Texas, 389 U.S. 109 (1967), and not by Lewis v. United States, 445

U.S. 55 (1980).

Agreeing with the district court, we hold that SORNA's

registration requirement applied to Roberson as a person who "was

convicted" of a sex offense, 42 U.S.C. § 16911(1), enforced by 18

U.S.C. § 2250, regardless of whether that conviction is later

vacated, when federal charges have been brought for conduct before

the vacation of conviction. We also reject Roberson's additional

challenges.

I.

On March 4, 1998, pursuant to a guilty plea, Roberson was

convicted of indecent assault and battery on a child under the age

1
The tape recording of Roberson's plea colloquy could not be
located. The state judge who accepted Roberson's guilty plea was
publicly reprimanded in 2005 for failing to follow proper plea-
colloquy procedure before June 16, 2000.

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of 14, in violation of Chapter 265, § 13B of the Massachusetts

General Laws. Roberson was sentenced to three years' probation.

A week later, Roberson signed a notice informing him of his duties

to register as a sex offender. In 2001, a Massachusetts arrest

warrant was issued for Roberson for a probation violation.

In 2006, Roberson obtained a Florida driver's license.

Over the next three years, the Florida Department of Law

Enforcement mailed Roberson notices regarding his obligation to

register as a sex offender. The Department proceeded to place

Roberson on the Florida sex offender registry. Roberson did not

register himself.

On July 14, 2010, a Vermont detective spoke to Roberson

about his obligation to register as a sex offender. Roberson

claimed that he was only visiting the state.

Between May and June 2011, Roberson worked in

Massachusetts. Again, he did not register as a sex offender.

After leaving the state and traveling to Nicaragua, Roberson

returned to Massachusetts in April 2012. Roberson was arrested on

May 18, 2012 on the outstanding warrant for his probation

violation. Roberson did not register as a sex offender while

living in Massachusetts during April and May 2012.

On July 12, 2012, a federal grand jury indicted Roberson

on one count of failing to register under SORNA, in violation of 18

U.S.C. § 2250. Section 2250 makes it a crime for an individual who

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is "required to register under [SORNA]" to "travel[] in interstate

or foreign commerce" and to "knowingly fail[] to register or update

a registration" pursuant to SORNA's requirements. 18 U.S.C.

§ 2250(a). The indictment alleged a violation "[f]rom in or about

February, 2010 to on or about May 18, 2012, in the District of

Massachusetts and elsewhere." We have described his post-

indictment recourse to the Massachusetts state court.

On February 15, 2013, Roberson filed a motion to dismiss

his federal indictment, challenging the Government's reliance on

his now-vacated prior predicate conviction.2 The Government

opposed, arguing that the indictment was based upon Roberson's

failure to register at a time when his Massachusetts conviction was

"still in effect" and, as such, when he was still under an

obligation to register. The Government relied upon Lewis, 445 U.S.

at 65-68, in which the Supreme Court held that a defendant's

indictment and conviction for being a felon in possession of a

firearm were not undermined by the defendant's later producing

evidence which the Court assumed showed that the predicate felony

2
Roberson also raised before the trial court and raises
again on appeal certain Ex Post Facto Clause, Due Process Clause,
Equal Protection Clause, Commerce Clause, and separation of powers
challenges to SORNA. Roberson concedes that those challenges are
foreclosed by binding circuit precedent, see, e.g., United States
v. Whitlow, 714 F.3d 41, 44 (1st Cir. 2013), cert. denied, 134 S.
Ct. 287 (2013); United States v. Parks, 698 F.3d 1, 4-8 (1st Cir.
2012), cert. denied, 133 S. Ct. 2021, but raises them in order to
preserve them for eventual Supreme Court review.

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conviction was obtained in violation of the defendant's Sixth

Amendment right to counsel. The conviction was affirmed.

On April 8, 2013, the district court orally denied

Roberson's motion to dismiss the indictment, but said it would

consider the state court's action at sentencing. Roberson entered

a conditional guilty plea on May 22, 2013, reserving his right to

appeal the district court's denial of his motion. On July 22,

2013, the district court sentenced Roberson to six months'

imprisonment with no supervision to follow.

II.

The question of whether a defendant's prior conviction

qualifies as a predicate offense under a federal criminal statute

is an issue of federal law that this court reviews de novo. See

Aguiar v. Gonzáles, 438 F.3d 86, 88 (1st Cir. 2006).

In our view, the Supreme Court's decisions in Lewis and

United States v. Mendoza-Lopez, 481 U.S. 828 (1987), require us to

affirm, as does our post-Lewis caselaw. Other circuits have

reached similar conclusions as to other statutes.

Congress enacted SORNA in 2006 "to establish a

comprehensive national system for the registration of sex

offenders." United States v. Whitlow, 714 F.3d 41, 43 (1st Cir.

2013), cert. denied, 134 S. Ct. 287; accord 42 U.S.C. § 16901.

"SORNA's general changes were designed to make more uniform what

had remained 'a patchwork of federal and 50 individual state

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registration systems,'" United States v. Kebodeaux, 133 S. Ct.

2496, 2505 (2013) (quoting Reynolds v. United States, 132 S. Ct.

975, 978 (2012)), beset with "'loopholes and deficiencies' that had

resulted in an estimated 100,000 sex offenders becoming 'missing'

or 'lost,'" id. (quoting H.R. Rep. No. 109-218, pt. 1, at 20, 26

(2005)).

Under SORNA, "[a] sex offender shall register, and keep

the registration current, in each jurisdiction where the offender

resides [or] where the offender is an employee." 42 U.S.C.

§ 16913(a). In turn, SORNA, defines "sex offender" as "an

individual who was convicted of a sex offense." Id. § 16911(1)

(emphasis added). Roberson concedes that the crime to which he

pled guilty in March 1998 is a "sex offense." He does not contest

that he traveled and had not registered. The question is whether,

under the language of SORNA, he "was convicted" of that crime for

conduct before the vacation of that conviction.

We start with the language of the statute. In Lewis, the

Supreme Court interpreted a statute in a similar regulatory system,

where the federal crime of being a felon in possession of a firearm

depended on the defendant being a person who "has been convicted by

a court . . . of a felony." 445 U.S. at 60 (internal quotation

marks omitted) (quoting Omnibus Crime Control and Safe Streets Act

of 1968, Pub. L. No. 90-351, 82 Stat. 197, Tit. VII, § 1202(a)(1)).

It was faced with a claim that the predicate felony was based on a

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constitutional error under Gideon v. Wainwright, 372 U.S. 335

(1963), which the Court assumed to be true. Nonetheless, it

affirmed the conviction under section 1202(a)(1) and rejected a

claim that its reading violated the Constitution. The Court

characterized the language "convicted by a court" as

"unambiguous[]" and "sweeping." Lewis, 445 U.S. at 60. The Court

looked to the plain language and then considered the fact that the

statute contained numerous exceptions, none of which provided an

exception for convictions which might turn out later to be

invalidated for any reason. Id. at 61-62. The Court also

contrasted section 1202(a)(1) with other statutes which explicitly

provided a defense of challenging the validity or constitutionality

of a predicate felony. Id. at 62.

As for the sparse legislative history, the Court

concluded it reflected "an intent to impose a firearms disability

on any felon based on the fact of conviction." Id. It stressed

the fact of conviction, and not a "valid" conviction. Id.

In Mendoza-Lopez, the Supreme Court considered a

similarly worded statute which made it a felony to enter the

country after having been "deported." The Court held that

"deported" could not be read to refer just to "lawful"

deportations, despite serious constitutional concerns, which are

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not at issue in this case.3 481 U.S. at 833-837, 841-42; see also

Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades

Council, 485 U.S. 568, 575 (1988) ("[W]here an otherwise acceptable

construction of a statute would raise serious constitutional

problems, the Court will construe the statute to avoid such

problems unless such construction is plainly contrary to the intent

of Congress.").

In looking to the language of federal statutes referring

to those "convicted" of a crime, this court has observed that "[b]y

its normal meaning a defendant has been 'convicted by a court' even

though the conviction may sometime be reversed." United States v.

Samson, 533 F.2d 721, 722 (1st Cir. 1976) (holding that prohibition

against receiving firearms in commerce after having "been convicted

by a court . . . of a felony" does not require final predicate

conviction); accord United States v. Currier, 821 F.2d 52, 59-60

(1st Cir. 1987) (holding that conviction then pending "on appeal

and so, at the time of the hearing, subject to vacation or

reversal" constitutes a predicate conviction for purposes of repeat

offender provision applying to those "previously 'convicted' of two

offenses" (quoting 18 U.S.C. § 3575(e)(1))).

3
As the Court explained in Mendoza-Lopez, the constitutional
defect in the reentry statute resulted from "the unavailability of
effective judicial review" of the administrative determination
resulting in the predicate deportation. 481 U.S. at 841-42. As
Roberson's successful challenge to his predicate conviction
demonstrates, SORNA suffers from no such infirmity.

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 Congress has, in the definition of the offense, stated

that "convicted" refers to the historical fact of the conviction,

regardless of whether that conviction might later be vacated. See

Lewis, 445 U.S. at 60-61 ("[The] plain meaning [of 'has been

convicted by a court of the United States or of a State . . . of a

felony'] is that the fact of a felony conviction imposes a . . .

disability until the conviction is vacated or the felon is relieved

of his disability by some affirmative action . . . .").

Using the same mode of analysis as Lewis, we conclude

Roberson's challenge must fail. The language is plain. The term

"was convicted" refers to the fact of conviction and does not refer

just to a "valid" conviction. Instead, Roberson asks this court

not to give "was convicted" its normal meaning. See Black's Law

Dictionary 383 (9th ed. 2009) (defining "convict" as "vb. To find

(a person) guilty of a criminal offense upon a criminal trial, a

plea of guilty, or a plea of nolo contendere (no contest)").

He argues "was convicted" must refer only to what he

calls a "valid" conviction.4 But Lewis expressly rejects that

reading of almost identical language. Roberson points to no

additional statutory language indicating that Congress intends the

4
By "valid," Roberson means a conviction that is not "void."
He argues that a conviction obtained in violation of due process is
void, Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969), and that
"[a] void judgment is one which, from its inception, was a complete
nullity and without legal effect," Lubben v. Selective Serv. Sys.
Local Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972).

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more restrictive reading of "was convicted by a court" that he

proposes.5

To the contrary, as did the statute in Lewis, SORNA has

exceptions to its coverage. See 42 U.S.C. § 16911(5)(B)-(C); see

also 18 U.S.C. § 2250(b) (providing as affirmative defense in

§ 2250 prosecution that defendant was prevented from registration

by "uncontrollable circumstances"). But none of the exceptions is

for a later vacated conviction, even when the vacation is on

constitutional grounds. This analysis also involves the two

considerations utilized by the Lewis Court: when Congress has

provided limited exceptions within the same statute, courts will

not read in additional exceptions. See Lewis, 445 U.S. at 61-62.

5
Roberson does cite 42 U.S.C. § 16911(5)(B), which states
that "[a] foreign conviction is not a sex offense for the purposes
of this subchapter if it was not obtained with sufficient
safeguards for fundamental fairness and due process for the accused
under guidelines or regulations established" by the Attorney
General. From this, Roberson argues Congress intends SORNA
registration to be required only on the basis of an individual
conviction that is consistent with due process. He fatally makes
no distinction between judicial systems and individual case
outcomes. As the Attorney General interpreted this provision
pursuant to his statutory mandate, Congress intends that a
conviction triggers the SORNA registration requirement only if it
is the product of a judicial system which, like that of the United
States, contains "sufficient safeguards for fundamental fairness
and due process." See 73 Fed Reg. 38,030, 38,050 (July 2, 2008)
("Sex offense convictions under the laws of Canada, United Kingdom,
Australia, and New Zealand are deemed to have been obtained with
sufficient safeguards for fundamental fairness and due process, and
registration must be required for such convictions on the same
footing as domestic convictions."). Congress did not intend for
federal courts, in the context of applying SORNA, to engage in
case-by-case due process review of predicate state court
convictions.

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And that conclusion is only strengthened by the existence of other

statutes that show Congress knew how to create such an exception

when it wished to do so. See id.

Congress did not create the "loophole[]" Roberson wishes.

Kebodeaux, 133 S. Ct. at 2505. Where Congress is clear, there is

no role for the rule of lenity.6 And, as in Lewis, this

congressional scheme is entirely constitutional.7 See, e.g.,

Whitlow, 714 F.3d at 44; United States v. Parks, 698 F.3d 1, 4-8

(1st Cir. 2012), cert. denied, 133 S. Ct. 2021 (2013).

6
Nor, if we were free to consult legislative history despite
the plain language of the statute, has Roberson identified any
history that lends support to his interpretation.
7
Roberson attempts to distinguish Lewis by arguing that
Congress' intent in enacting the felon-in-possession statute at
issue there was broader than its intent in enacting SORNA.
Specifically, he notes that the felon-in-possession statute does
not apply solely to individuals with prior convictions but also to
those merely indicted for a felony charge, as well as fugitives,
aliens unlawfully in the United States, and individuals who have
renounced U.S. citizenship, among others. See 18 U.S.C. § 922(n),
(g)(2), (g)(5), (g)(7). From this, Roberson argues that the
statute in Lewis has a broader prophylactic rationale than SORNA.
This argument fails. While the firearms statute does reach
groups aside from convicted felons, the Lewis Court did not rely on
that structure in its analysis of "was convicted." See 445 U.S. at
60 ("[The statute's] proscription is directed unambiguously at any
person who 'has been convicted by a court of the United States or
of a State . . . of a felony.'" (emphasis added)). Moreover,
Roberson's argument essentially asks us to read the absence of
categories unrelated to individuals with prior convictions to imply
the phrase "provided that the conviction is valid." There is
simply no basis for that reading in SORNA's text. The plain
language encompasses Roberson's conduct and properly subjects him
to criminal penalties for failing to register.

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 At the heart of Roberson's case is his reliance on

Burgett v. Texas for the proposition that an unconstitutionally

obtained conviction ordinarily cannot be used "either to support

guilt or enhance punishment for another offense." 389 U.S. 109,

115 (1967).

Roberson's Burgett-based argument was explicitly

considered and rejected in Lewis. Recognizing that an uncounseled

felony conviction cannot be used for certain purposes, and citing

Burgett, United States v. Tucker, 404 U.S. 443 (1972), and Loper v.

Beto, 405 U.S. 473 (1972), the Lewis Court held:

Use of an uncounseled felony conviction as the
basis for imposing a civil firearms
disability, enforceable by a criminal
sanction, is not inconsistent with Burgett,
Tucker, and Loper. In each of those cases,
this Court found that the subsequent
conviction or sentence violated the Sixth
Amendment because it depended upon the
reliability of a past uncounseled conviction.
The federal gun laws, however, focus not on
reliability, but on the mere fact of
conviction, or even indictment, in order to
keep firearms away from potentially dangerous
persons. Congress' judgment that a convicted
felon, even one whose conviction was allegedly
uncounseled, is among the class of persons who
should be disabled from dealing in or
possessing firearms because of potential
dangerousness is rational. Enforcement of
that essentially civil disability through a
criminal sanction does not "support guilt or
enhance punishment," see Burgett, 389 U.S., at
115,[] on the basis of a conviction that is
unreliable when one considers Congress' broad
purpose. Moreover, unlike the situation in
Burgett, the sanction imposed by § 1202(a)(1)
attaches immediately upon the defendant's
first conviction.

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Lewis, 445 U.S. at 67 (footnote omitted).

As we held in Parks, 698 F.3d at 5, SORNA is "a civil

regulatory measure aiming at forestalling future harm." We

observed "[r]egistration is frequently part of civil regulation,

including car licensing, social security applications, and

registering for selective service," and may be enforced by a

criminal sanction. Id. at 6. As Lewis makes clear, where a civil

disability "focus[es] not on reliability, but on the mere fact of

conviction," enforcement of that disability through criminal

sanction does not implicate the constitutional concern at issue in

Burgett. 445 U.S. at 67 (emphasis added). By its plain language,

SORNA has precisely that focus. For that reason, Burgett has no

application here.

As to Roberson's invocation of Boykin v. Alabama, 395

U.S. 238, 243 n.5 (1969), and Lubben v. Selective Serv. Sys. Local

Bd. No. 27, 453 F.2d 645, 649 (1st Cir. 1972), that argument also

fails under circuit precedent which postdates Boykin and Lubben.

In United States v. Snyder, 235 F.3d 42, 51-54 (1st Cir. 2000), we

held that the later vacating of a state court conviction did not

invalidate the defendant's federal conviction as a felon in

possession of a firearm under 18 U.S.C. § 922(g)(1) because he was

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a felon at the time of the charged possession.8 We drew a

distinction between the use of a vacated conviction in the

sentencing context and in the context of predicate offenses. Id.

at 52-53. We observed that laws that condition a civil disability

on the historical fact of conviction "reflect the desirability of

having a clear, bright line in respect to [that disability]: one

who has a . . . conviction on the books, a conviction not yet set

aside, should simply know" that the disability applies. Id. at 53

(quoting United States v. Paleo, 9 F.3d 988, 989 (1st Cir. 1992))

(internal quotation mark omitted).

As Lewis notes, an individual subject to a civil

disability may challenge a predicate conviction "in an appropriate

proceeding" before engaging in the prohibited conduct. 445 U.S. at

64; cf. Mendoza-Lopez, 481 U.S. at 841 ("It is precisely the

unavailability of effective judicial review of the administrative

determination at issue here that sets this case apart from

Lewis."). In the present context, there is no reason to think that

8
Other circuits have followed similar reasoning. See, e.g.,
United States v. Padilla, 387 F.3d 1087, 1090-92 (9th Cir. 2004)
(holding defendant not entitled to new trial on felon in possession
conviction based on vacatur of the predicate felony after his
conviction); Burrell v. United States, 384 F.3d 22, 27-28 (2d Cir.
2004) (explaining "the determinate factor [in a felon in possession
prosecution] is [the] defendant's criminal record at the time of
the charged possession" without regard to whether it is later set
aside); United States v. Lee, 72 F.3d 55, 58 (7th Cir. 1995)
(holding fact that defendant's predicate conviction was vacated
shortly before trial did not undermine prosecution for being felon
in possession); United States v. Cabrera, 786 F.2d 1097, 1098 (11th
Cir. 1986) (per curiam) (similar).

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Congress would willingly engender uncertainty concerning to whom

SORNA's registration requirement applies by permitting those who

fail to register to challenge their predicate convictions after the

fact. Roberson flouted the registration law for twelve years, and

had ample time to seek to vacate his conviction.

III.

The judgment of the district court is affirmed.

- Concurring Opinion Follows -

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 TORRUELLA, Circuit Judge, Concurring. Faced with

statutory language highly analogous to that now on appeal, the

Supreme Court has held that Congress may impose civil disabilities,

enforceable via criminal sanctions, based on the existence of a

constitutionally infirm prior predicate conviction. Lewis v.

United States, 445 U.S. 55, 65-68 (1980). Doing so, the Supreme

Court concluded, does not threaten the rights of individuals so

disabled. Id. at 67 ("Enforcement of [an] essentially civil

disability through a criminal sanction does not 'support guilt or

enhance punishment . . . .'" (quoting Burgett v. Texas, 389 U.S.

109, 115 (1967)). I disagree, being fully persuaded by the

existence of significant constitutional concerns as articulated by

the dissenting justices in that case. Id. at 72 (Brennan, J.,

dissenting) ("Here, petitioner could have not been tried and

convicted for violating [SORNA] in the absence of his previous

felony conviction. It could not be plainer that his

constitutionally void conviction was therefore used 'to support

guilt' for the current offense."); see also Burgett, 389 U.S. at

115 (holding that constitutionally infirm convictions may not be

used to "support guilt or enhance punishment for another offense").

I am also troubled by the thought that this exception,

borne out of a civil disability seen as relatively insignificant by

reviewing courts, may apply uniformly to validate disabilities far

more severe. Compare Lewis, 445 U.S. at 66 (highlighting that

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there are "activities far more fundamental than the possession of

a firearm"), and United States v. Samson, 533 F.2d 721, 722 (1st

Cir. 1976) (calling firearm dispossession "slight compared with the

gravity of the public interest sought to be protected"), with

Samson, 533 F.2d at 722 ("[I]f the disability imposed by the

statute is sufficiently serious to the defendant, it might be

appropriate to [adopt a] more restricted meaning [of the phrase

'convicted by a court']."), and United States v. Parks, 698 F.3d 1,

5 (1st Cir. 2012) ("SORNA is surely burdensome for those subject to

it.").

Nonetheless, it is the job of an appellate judge to

faithfully apply the law as articulated by the Supreme Court. See

Lewis, 445 U.S. at 65-68. And that faithful respect extends, in

equal measure, to prior precedent from this court. See United

States v. Snyder, 235 F.3d 42, 51-54 (1st Cir. 2000). Here,

although troubled by the result, I believe the majority's

conclusion is consistent with our binding precedent. Accordingly,

I concur. I write separately, however, to urge that we hold the

line where we now stand (already on ground both slippery and

sloping) so that the protections of Burgett, 389 U.S. 109, and its

progeny are not further eroded.

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