United States v. Brown

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-17244 NOVEMBER 5, 2009
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No. 08-00224-CR-WS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM ERIC BROWN,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Alabama
_________________________

(November 5, 2009)

Before DUBINA, Chief Judge, BIRCH and SILER,* Circuit Judges.

BIRCH, Circuit Judge:

*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting
by designation.
 William Eric Brown appeals his conviction under 18 U.S.C. § 2250(a) for

failing to register in accordance with the Sex Offender Registration and

Notification Act (“SORNA”). Brown contends, for the first time on appeal, that

the district court committed plain error during his Rule 11 colloquy when it

erroneously stated his maximum term of supervised release. Additionally, Brown

challenges the validity and applicability of SORNA on various grounds. This case

presents issues of first impression in our circuit involving application of SORNA.

Upon careful consideration of the record and oral arguments, we AFFIRM.

I. BACKGROUND

Brown was convicted by North Carolina in November 1996 of indecent

liberties with a minor. He signed a North Carolina Sex Offender Acknowledgment

Form which required him to register after his release from prison. When Brown

registered in June 1998 in North Carolina, he was told to notify North Carolina

within 30 days of changing his address. In June 2007, Brown moved from North

Carolina to Mobile, Alabama, where he resided until 12 June 2008 without

registering his address in Alabama.

Brown was subsequently indicted for violating 18 U.S.C. § 2250(a), by

knowingly failing to register and update his registration from June 2007 through 12

June 2008 in accordance with SORNA. Brown filed a pre-trial motion to dismiss

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the indictment challenging the validity and applicability of SORNA based on

grounds of due process, implementation, notice, and the Commerce Clause. The

court denied the motion.

In August 2008, Brown pled guilty as charged, conditioned upon his right to

appeal the motion to dismiss the indictment. Both the written plea agreement and

the district court during the guilty plea hearing mistakenly stated that Brown faced

a maximum three-year term of supervised release. However, Brown’s presentence

investigation report (“PSI”), issued approximately six weeks before sentencing,

correctly identified the possible supervised release term as being five years to life,

pursuant to 18 U.S.C. § 3583(k). Brown did not file any written objections to the

report.

At the sentencing hearing in December 2008, Brown’s attorney indicated

that he had received a copy of the PSI and discussed it with Brown. Brown

himself acknowledged that he understood what was contained in the PSI. After

Brown’s attorney affirmed that he had no objections to the PSI, the district court

adopted the PSI as published. The court ultimately sentenced Brown to 21 months

of imprisonment followed by a life term of supervised release. Brown did not

object to the life term of supervised release. This appeal followed.

II. DISCUSSION

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A. Whether a Rule 11 Violation Invalidated Brown’s Guilty Plea

Brown first contends that his guilty plea was unknowing and involuntary

because the district court committed plain error when it informed him that he faced

a maximum three-year term of supervised release. The government concedes error

but contends that no prejudice has been shown.

Because Brown did not object to the Rule 11 colloquy in district court, we

review for plain error. See United States v. Bejarano, 249 F.3d 1304, 1306 (11th

Cir. 2001) (per curiam). This requires Brown to show a clear error that prejudiced

him by affecting his substantial rights. See id. In the context of a Rule 11 error,

prejudice to the defendant means “a reasonable probability that, but for the error,

he would not have entered the plea.” United States v. Dominguez Benitez, 542

U.S. 74, 83, 124 S. Ct. 2333, 2340 (2004). We may consider the whole record

when assessing whether a Rule 11 error affected Brown’s substantial rights. See

United States v. Vonn, 535 U.S. 55, 59, 122 S. Ct. 1043, 1046 (2002). Even if

Brown carries his burden of establishing clear, prejudicial error, we may not

remedy that error unless it “seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Puckett v. United States, 556 U.S. ___, ___,

129 S. Ct. 1423, 1429 (2009) (quotation marks, citation, and bracket omitted).

A guilty plea is knowingly and voluntarily made if the defendant enters his

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plea without coercion and understands the nature of the charges and the

consequences of his plea. See United States v. Moriarty, 429 F.3d 1012, 1019

(11th Cir. 2005) (per curiam). The consequences of a guilty plea include “any

maximum possible penalty, including imprisonment, fine, and term of supervised

release[.]” Fed. R. Crim. P. 11(b)(1)(H).

Here, the plea agreement and the district court incorrectly advised Brown

that the maximum term of supervised release was three years, instead of life. See

18 U.S.C. § 3583(k) (2009) (mandatory supervised release term for violating 18

U.S.C. § 2250 is five years to life). Thus, as the government concedes, the error in

this case was plain. See United States v. Carey, 884 F.2d 547, 548 (11th Cir. 1989)

(per curiam) (“[I]t is clear that the district court erred in not informing appellant at

the plea hearing that appellant, if sentenced to prison, would be subject to a term of

supervised release.”).

Nevertheless, Brown has not carried his burden of showing prejudice. In

Bejarano, both the written plea agreement and the district court during the plea

colloquy failed to inform Bejarano that his sentence would include a mandatory

minimum term of five years of supervised release. See Bejarano, 249 F.3d at

1305-06. Instead, the plea agreement and the court only stated that his term of

imprisonment would be “followed by a term of supervised release.” Id. The PSI,

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however, correctly stated that Bejarano faced a statutory minimum term of five

years of supervised release. See id. at 1306. Bejarano did not object to the PSI at

sentencing. See id. Consequently, we concluded that Bejarano was not entitled to

withdraw his guilty plea because “Bejarano’s conduct indicates that his substantial

rights were not affected by the district court’s failure to inform him at his plea

colloquy of the specific term of supervised release required by statute[.]” Id. at

1307.

Although the instant case differs from Bejarano in that Brown was informed

of an incorrect term of supervised release (as opposed to an unspecified term), the

error was similarly corrected by the PSI. As in Bejarano, Brown did not object to

the PSI’s correct statement concerning his statutory range of supervised release.

Brown stated at the sentencing hearing that he discussed the PSI with his attorney

and understood its contents. After the district court imposed Brown’s sentence,

including the lifetime term of supervised release, Brown and his attorney again

forfeited an opportunity to object to the term of supervised release. Accordingly,

like Bejarano’s actions, Brown’s own conduct indicates that his substantial rights

were not harmed by the district court’s error during the plea hearing. See also

Carey, 884 F.2d at 549 (finding no prejudice where the defendant failed to object

to the correct information about his supervised release provided by the PSI and the

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sentencing judge).

Brown attempts to distinguish his case from Bejarano based on the following

footnote:

We also note that every circuit that has addressed this issue has held
that a district court’s failure to inform a defendant that he faces a
specific term of supervised release, or to inform the defendant of the
effect of supervised release on his sentence, is harmless error in a
situation like this one, where the defendant’s actual sentence,
including the term of imprisonment and period of supervised release,
is well below the sentence that the defendant was informed by the
district court that he faced.

Bejarano, 249 F.3d at 1306 n.1 (emphasis added). According to Brown, a district

court’s erroneous information about supervised release is harmless error where the

actual sentence imposed is less than the erroneously stated term. Because Brown’s

lifetime term of supervised release exceeded the maximum 3-year term that he was

mistakenly advised of at the plea hearing, Brown argues that the district court’s

error was not harmless under Rule 11(h).

Brown’s argument is meritless because his case is not subject to harmless

error analysis. We may review for harmless error under Rule 11(h) where a

defendant has moved in the district court to withdraw his guilty plea based on Rule

11 error. See United States v. Monroe, 353 F.3d 1346, 1349-50 n.2 (11th Cir.

2003). In this case, Brown did not move to withdraw his plea in the district court.

Our review is therefore limited to plain error. See id.; see also Moriarty, 429 F.3d

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at 1019 (“[W]hen a defendant fails to object to a Rule 11 violation, we review only

for plain error.”)

Furthermore, Brown has failed to show a reasonable probability that he

would not have pled guilty but for the Rule 11 error. See Dominguez Benitez, 542

U.S. at 83, 124 S. Ct. at 2340. Despite his lengthy criminal record, stretching back

to 1991, the court gave Brown “the benefit of [his] bargain” by sentencing him to

the minimum term of his guidelines range. Doc. 42-2 at 10, 14. There is no

evidence to support Brown’s current allegation (raised for the first time in his reply

brief) that he would not have pled guilty if he had known that the maximum

supervised release term was life instead of three years. Accordingly, we conclude

that the district court did not plainly err when it misstated Brown’s maximum term

of supervised release during his plea colloquy.

B. Validity and Applicability of SORNA

Next, Brown raises several challenges to SORNA. He asserts that SORNA

did not apply to him because Alabama had not yet implemented SORNA. Brown

further argues that his prosecution violated his due process right of fundamental

fairness because it was impossible for him to comply with SORNA’s registration

requirements and because he received no notice of his duty to register under

SORNA. Finally, Brown asserts that SORNA violates the Commerce and

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Necessary and Proper Clauses. As these issues concern constitutional law and

statutory interpretation, our review is de novo. See United States v. Dumont, 555

F.3d 1288, 1289 (11th Cir. 2009) (per curiam), cert. denied, (U.S. Oct. 5, 2009)

(No. 08-10087).

1. Applicability of SORNA to Brown

Enacted in July 2006, SORNA created a comprehensive national system for

registering sex offenders in order to track their interstate movement. See United

States v. Ambert, 561 F.3d 1202, 1205 (11th Cir. 2009). SORNA provides in

pertinent part as follows:

A sex offender shall register, and keep the registration current, in each
jurisdiction where the offender resides, where the offender is an
employee, and where the offender is a student. For initial registration
purposes only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the jurisdiction
of residence.

42 U.S.C. § 16913(a) (2009). In order to keep one’s registration “current,” a sex

offender must update his registry information in at least one jurisdiction involved

in subsection (a) within three business days after changing residence, employment,

name, or student status. Id. § 16913(c). If a convicted sex offender travels in

interstate or foreign commerce and knowingly fails to register as required by

SORNA, he has violated the Act and may be punished by fines and/or

imprisonment for up to ten years. 18 U.S.C. § 2250(a) (2009). It is an affirmative

9
defense if “(1) uncontrollable circumstances prevented the individual from

complying; (2) the individual did not contribute to the creation of such

circumstances in reckless disregard of the requirement to comply; and (3) the

individual complied as soon as such circumstances ceased to exist.” Id. § 2250(b).

SORNA authorized the Attorney General to determine SORNA’s

applicability for “sex offenders convicted before July 27, 2006 or its

implementation in a particular jurisdiction.” 42 U.S.C. § 16913(d). On 28

February 2007, the Attorney General exercised that authority by enacting 28

C.F.R. § 72.3, which expressly applied SORNA registration requirements “‘to all

sex offenders, including sex offenders convicted of the offense for which

registration is required prior to the enactment of that ACT.’” Ambert, 561 F.3d at

1206 (quoting 28 C.F.R. § 72.3) (emphasis added). The Attorney General’s

interim regulations made it clear that SORNA retroactively applies to sex

offenders, like Brown, who were convicted before SORNA’s enactment. See

United States v. Madera, 528 F.3d 852, 857 (11th Cir. 2008) (per curiam).

Nevertheless, Brown argues that SORNA does not apply to him because

Alabama has not implemented it. He points to a provision in the final regulations

(“National Guidelines”) which authorizes jurisdictions to phase in SORNA

registration for sex offenders with pre-SORNA or pre-SORNA-implementation

10
convictions. The portion quoted by Brown states:

In other words, sex offenders in these existing sex offender
populations who cannot be registered within the normal SORNA time
frame (i.e., before release from imprisonment or within three business
days of sentencing for the registration offense) must be registered by
the jurisdiction when it implements the SORNA requirements in its
system within a year for sex offenders who satisfy the tier I criteria,
within six months for sex offenders who satisfy the tier II criteria, and
within three months for sex offenders who satisfy the tier III criteria.

73 Fed. Reg. 38030, 38063-64 (2008). Based on this provision, Brown reasons

that sex offenders with pre-SORNA convictions, like himself, have a duty to

register only after the jurisdiction implements SORNA.

Brown’s argument fails to appreciate the distinction between a jurisdiction’s

duty to implement SORNA and a sex offender’s duty to register. See United States

v. Gould, 568 F.3d 459, 464 (4th Cir. 2009), petition for cert. filed, (U.S. Sept. 25,

2009) (No. 09-6742) (“[T]he structure of SORNA’s requirements indicates a

separateness of the sex offenders’ individual duty to register and the State’s duty to

enhance its registries and standards as mandated by the Act.”). SORNA granted

jurisdictions until 27 July 2009 (a deadline which the Attorney General may

extend) to implement its requirements. 42 U.S.C. § 16924 (2009). If a state fails

to substantially and timely implement SORNA, the state’s federal funding tied to

the statute is reduced by ten percent. Id. § 16925(a) (2009). The Attorney

General’s interim regulations specified, however, that “[i]n contrast to SORNA’s

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provision of a three-year grace period for jurisdictions to implement its

requirements, SORNA’s direct federal law registration requirements for sex

offenders are not subject to any deferral of effectiveness.” 72 Fed. Reg. 8894,

8895 (2007). The final regulations in the National Guidelines likewise provide that

SORNA applies to sex offenders regardless of whether the relevant jurisdiction has

incorporated SORNA’s requirements. See 73 Fed. Reg. at 38063. In fact, the

provision quoted by Brown is lifted from a section of the National Guidelines

entitled “Retroactive Classes,” which begins with the following sentence: “As

discussed in Part II.C of these Guidelines, SORNA applies to all sex offenders,

including those convicted of their registration offenses prior to the enactment of

SORNA or prior to particular jurisdictions’ incorporation of the SORNA

requirements into their programs.” Id. (emphasis added).

Although we have not addressed Brown’s particular argument, several of our

sister circuits have rejected similar claims. See Gould, 568 F.3d at 463-66

(SORNA applies to defendant even though Maryland had not yet implemented it);

United States v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008), cert. granted, Carr v.

U.S., (U.S. Sept. 30, 2009) (No. 08-1301) (defendant required by SORNA to

register with Indiana despite Indiana’s failure “to establish any procedures or

protocols for the collection, maintenance, and dissemination of the detailed

12
information required by the Act”); United States v. Hinckley, 550 F.3d 926, 939

(10th Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2383 (2009) (defendant

required to register under SORNA even though Oklahoma had not statutorily

implemented SORNA). As these cases point out, SORNA was not enacted in a

vacuum. To the contrary, every state and the District of Columbia had a sex

offender registration law prior to 2006. See Gould, 568 F.3d at 464. An individual

may therefore comply with SORNA’s registration requirements by registering

through the state’s sex offender registry, even if that jurisdiction has not

implemented SORNA’s administrative procedures. See id.; Dixon, 551 F.3d at

582; Hinckley, 550 F.3d at 939. Accordingly, a jurisdiction’s failure to implement

SORNA results in a loss of federal funds, “not in an excuse for an offender who

has failed to register.” Hinckley, 550 F.3d at 939.

We agree with our sister circuits that a sex offender is not exempt from

SORNA’s registration requirements merely because the jurisdiction in which he is

required to register has not yet implemented SORNA. Here, it is undisputed that

Alabama maintained a sex offender registry during the relevant time period which

required sex offenders to register and provide updated information upon changing

residences. See Ala. Code §§ 13A-11-200, 15-20-23 (2009). Brown thus could

have registered as a sex offender through Alabama’s sex offender program.

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Accordingly, we conclude that SORNA applied to Brown.

2. Due Process Violations

Brown also raises two due process violations. Related to his above

argument, Brown first submits that it was impossible for him to comply with

SORNA because Alabama had not implemented it. Although Brown

acknowledges that Alabama has a sex offender registry, he asserts that he was

unable to register through it. The basis for his claim comes from a handwritten

note added to the factual resume of the written plea agreement, which states as

follows:

In February, 2008, the defendant contends he was advised by
employees of the Alabama Dept. of Public Safety that he was required
to register as a sex offender. The defendant attempted to register with
the Mobile County Sheriff’s Department but was told to leave the
State of Alabama.

Doc. 27, Factual Resume at 2. Brown reasons that because he was physically

incapable of registering, it violated his due process right to fundamental fairness to

prosecute him for not doing so.

We disagree. Brown’s assertion that the Mobile County Sheriff’s

Department refused to register him is essentially a claim that uncontrollable

circumstances prevented him from complying with SORNA. This is an affirmative

defense which Brown could have raised under 18 U.S.C. § 2250(b), but he instead

14
chose to plead guilty. “[A] guilty plea establishes factual guilt and therefore all

constitutional violations which are inconsistent with that factual guilt are waived

by a guilty plea.” United States v. Bonilla, 579 F.3d 1233, 1240 (11th Cir. 2009).

A constitutional violation is not waived if the charge, when judged on its face, is

one which the state may not constitutionally prosecute regardless of a defendant’s

factual guilt.1 See id. Here, the charge against Brown did not, on its face, violate

due process. As discussed, SORNA applied to Brown, and he could have

registered through Alabama’s sex offender registry. To the extent Brown attempts

to challenge his factual guilt by asserting that he was prevented from registering,

his guilty plea waived any such challenge. See id. Accordingly, we find no due

process violation based on Alabama’s failure to implement SORNA.

Brown’s second due process claim stems from the government’s lack of

notice concerning his duty to register under SORNA. Brown maintains that he had

no duty to register under SORNA because the government failed to notify him of

his duty to register. In support, Brown cites the Supreme Court’s decision in

Lambert v. California, 355 U.S. 225, 229-30, 78 S. Ct. 240, 243-44 (1957), which

held that a registration scheme violates due process “[w]here a person did not

know of the duty to register and where there was no proof of the probability of

1
For example, certain double jeopardy challenges are not waived by a guilty plea. See
id. at 1240-41.

15
such knowledge[.]”

Pursuant to 42 U.S.C. § 16917(a), an appropriate official must notify a sex

offender of his duty to register before the defendant’s release from custody, or

immediately after sentencing if the defendant is not in custody. See 42 U.S.C.

§ 16917(a) (2009). However, Brown acknowledges that this subsection does not

encompass sex offenders, like him, who have already served their sentences prior

to SORNA’s enactment. For these sex offenders, it is up to the Attorney General

to prescribe rules regarding notice. See id. § 16917(b). The Attorney General

issued those regulations in July 2008, after Brown’s indictment in June 2008. See

73 Fed. Reg. at 38063. These regulations encourage jurisdictions to inform pre-

SORNA sex offenders, such as Brown, “as quickly as possible” about SORNA’s

requirements. Id. The National Guidelines recognize that “it may not be feasible

for a jurisdiction to do so immediately” and therefore provide time frames within

which a jurisdiction must register a sex offender “when it implements the SORNA

requirements in its system[.]” Id. at 38063-64 (emphasis added). Accordingly, as

Alabama had not implemented SORNA’s requirements into its registry program

during the time period charged in the indictment, Alabama did not have a duty to

notify Brown of his duty to register.

Furthermore, Lambert is easily distinguishable from the facts of this case.

16
Lambert involved a city ordinance that required convicted felons to register with

the police if he or she stayed in Los Angeles for at least five days. See Lambert,

355 U.S. at 226, 78 S. Ct. at 241-42. The Supreme Court held that the ordinance

violates due process if a defendant had no actual knowledge of his duty to register

and there were no “circumstances which might move one to inquire as to the

necessity of registration[.]” Id. at 229, 78 S. Ct. at 243. Brown, on the other hand,

had actual knowledge that he had a duty to register in Alabama. In the factual

resume to the plea agreement, Brown asserted that the Alabama Department of

Public Safety advised him in February 2008 that he was required to register as a

sex offender. Brown also admitted in his plea agreement that he knowingly and

intentionally failed to register in Alabama as required by SORNA. Although the

plea agreement does not specify whether his duty to register fell under state law or

SORNA, we join our sister circuits in concluding that “notice of a duty to register

under state law is sufficient to satisfy the Due Process Clause.” United States v.

Whaley, 577 F.3d 254, 262 (5th Cir. 2009); accord Gould, 568 F.3d at 468-69;

Dixon, 551 F.3d at 584; Hinckley, 550 F.3d at 938; United States v. May, 535 F.3d

912, 921 (8th Cir. 2008), cert. denied, ___ U.S. ___, 129 S. Ct. 2431 (2009).

In addition to actual notice, there were sufficient circumstances to prompt

Brown to have inquired upon his duty to register. See Lambert, 355 U.S. at 229,

17
78 S. Ct. at 243. As found by the district court, these circumstances included: (1)

Brown’s North Carolina conviction as a sex offender; (2) Brown’s notice in 1998

of his duty to register under North Carolina law and inform authorities of a change

in address; (3) Brown’s compliance with North Carolina registration requirements,

thereby demonstrating his understanding of his duty to register; (4) the Jacob

Wetterling Act’s enactment in 1994, setting national standards for sex offender

registration and notification; and (5) the pre-existence of sex offender registration

laws in every state which have garnered national media attention. See Doc. 26 at

9. In light of Brown’s actual notice of a duty to register in Alabama and the

circumstances prompting a need to inquire into such a duty, we find no due process

violation.

3. Violation of the Commerce Clause and the Necessary and Proper

Clause

In his final argument, Brown contends that Congress exceeded its power

under the Commerce Clause and the Necessary and Proper Clause in enacting

SORNA’s registration requirements and making it a federal crime to fail to

register. Brown acknowledges that we have decided these questions adversely to

him in Ambert, 561 F.3d at 1210-12, but he raises the issues to preserve them for

future certiorari or collateral review. “We are bound by [Ambert] unless overruled

18
by the Supreme Court or this Court sitting en banc.” United States v. Myers, ___

F.3d ___, No. 09-10228, 2009 WL 3270005, at *1 (11th Cir. Oct. 13, 2009).

Accordingly, Ambert controls.

III. CONCLUSION

In summary, we find that the district court did not commit plain error during

the plea colloquy when it mistakenly informed Brown of his maximum supervised

release term. We also conclude that SORNA applied to Brown and that Brown’s

prosecution did not violate his due process rights. Finally, we reject Brown’s

challenge to the validity of SORNA based on our holding in Ambert. We therefore

AFFIRM Brown’s conviction under 18 U.S.C. § 2250(a) for violating SORNA’s

registration requirements.

AFFIRMED.

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