United States v. Donnell Delgado, Jr.

FILED
NOT FOR PUBLICATION FEB 05 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 13-50428

Plaintiff - Appellee, D.C. No. 3:13-cr-00360-L-1

v.
MEMORANDUM*
DONNELL DELGADO, Jr.,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding

Argued and Submitted November 19, 2014
Pasadena, California

Before: W. FLETCHER and BYBEE, Circuit Judges, and SINGLETON, Senior
District Judge.**

Appellant Donnell Delgado, Jr. appeals the district court’s denial of his

motion to dismiss an indictment for failure to register as a sex offender in violation

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.

1
of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. §

2250(a), and 42 U.S.C. §§ 16911, 16913. We review his appeal de novo, United

States v. Cabrera-Gutierrez, 756 F.3d 1125, 1129 (9th Cir. 2014), and we affirm.

Delgado contends that subjecting him to the federal registration and

reporting regime is “fundamentally unfair.” But his arguments reveal that his

challenge is in fact a collateral attack on his underlying state sex offense

conviction.

Unfortunately for Delgado, SORNA does not authorize such a collateral

attack. His argument to the contrary rests entirely on an analogy to a provision of

the immigration code, 8 U.S.C. § 1326(d), which explicitly authorizes a non-citizen

to collaterally attack a removal order that serves as the predicate for a subsequent

criminal prosecution for illegal reentry. SORNA does not contain similar

language. Nor does it imply that courts may hear collateral challenges to state sex

offense convictions. Instead, it has features similar to the laws examined in Custis

v. United States, 511 U.S. 485 (1994), and Lewis v. United States, 445 U.S. 55

(1980), two cases in which the Supreme Court held that federal felon-in-possession

statutes do not provide a statutory right to challenge prior convictions used to

enhance sentences under those statutes.

2
The Constitution does not compel this court to entertain Delgado’s

challenge, either. This case is not like United States v. Mendoza-Lopez, 481 U.S.

828 (1987), the decision that prompted Congress to add § 1326(d). Unlike

Mendoza-Lopez, who was unconstitutionally blocked from challenging in court the

fundamental fairness of the proceeding that served as the predicate for his

subsequent prosecution, Delgado did have access to judicial review of the

conviction that is the predicate of his current prosecution.

At oral argument, Delgado’s counsel also urged us to construe Delgado’s

claim more narrowly: Arizona has the power to criminalize Delgado’s conduct, but

Congress cannot attach such severe consequences to it. As the government points

out, Arizona has rendered Delgado a sex offender for the rest of his life, but

SORNA only requires that Delgado register for 15 years. Delgado has not

persuaded us that this consequence exceeds the bounds of the Due Process Clause

or the Eighth Amendment.

Although this court cannot, at this time, relieve Delgado of the consequence

of his failure to register pursuant to SORNA, he may seek relief in the Arizona

state courts.

AFFIRM.