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NOT FOR PUBLICATION FEB 05 2015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.
3