FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 09-30135 Plaintiff-Appellant,

D.C. No.

v.  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
COUNSEL

Suzanne A. Bratis, Assistant United States Attorney, Portland,

Oregon, for the plaintiff-appellant.

Robert M. Stone, Medford, Oregon, for the defendantappellee.

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 probation. 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.

UNITED STATES v. FERNANDES 3549
[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 offender” 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 another.” 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 requirement 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 Sentencing Commission may not compel the judiciary to pass a

3550 UNITED STATES v. FERNANDES
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 discretion 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 probation 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 provided, 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

1Section 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).

2Defendant’s separate assertion that the Sex Offender Registration and

Notification Act is an invalid exercise of Congress’ power under the Commerce Clause was rejected by this court in United States v. George, 625

F.3d 1124, 1130 (9th Cir. 2010). 

3Defendant 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). 

UNITED STATES v. FERNANDES 3551
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.

3552 UNITED STATES v. FERNANDES