Searching for "Jurisdictional Hook": United States v. Kebodeaux and the Constitutional Limits of the Sex Offender Registration and Notification Act

Abstract: On July 6, 2012, in United States v. Kebodeaux, the U.S. Court of Appeals for the Fifth Circuit held that the Sex Offender Registration and Notification Act's registration requirements were unconstitutional when applied to the intrastate relocation of former federal convicts who had been unconditionally released from federal custody. This decision obfuscates whether former federal sex offenders must follow state or federal sex offender registration requirements in order to avoid criminal penalties. A contrary interpretation of the Act's statutory history that requires uniform registration requirements among all federal sex offenders would resolve this ambiguity and ensure a fair warning to all former federal offenders.IntroductionIn 2008, Anthony Kebodeaux was convicted by the U.S. District Court for the Western District of Texas of violating the Sex Offender Registration and Notification Act (SORNA) by knowingly failing to update his sex offender registration after moving from El Paso to San Antonio, Texas.1 SORNA requires all former federal sex offenders to register their sex offender status in the district where they reside and to inform the local authorities in person upon any change of residence.2 Following his conviction, Kebodeaux was sentenced to twelve months and one day of imprisonment, with a five year term of supervised release.3Kebodeaux appealed, arguing that Congress did not have the constitutional authority to enact registration requirements that regulated purely intrastate movement.4 A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit affirmed his conviction.5 Shortly thereafter, the court, on its own motion, reheard the case en banc to address its concerns about the breadth of congressional power over previously released federal offenders.6The en banc court considered the constitutionality of SORNA's registration requirements under the Necessary and Proper Clause and the Commerce Clause.7 Specifically, the court considered the constitutionality of SORNA's provisions when applied to federally convicted sex offenders who were "unconditionally released" from federal custody prior to SORNA's enactment, but who knowingly failed to update their residence after an intrastate residence change.8 The en banc court held that SORNA's registration requirements and criminal penalties are unconstitutional with respect to former federal sex offenders who had been "unconditionally released" prior to SORNA's enactment.9Unfortunately, the en banc majority's holding obfuscates the legal obligations of pre-SORNA federal sex offenders.10 A contrary statutory interpretation requiring uniform registration requirements among all federal sex offenders would eliminate the uncertainty of criminal sanctions. 11I. Kebodeaux's Conviction and AppealIn 1999, Anthony Kebodeaux was convicted under federal law for having sex with a fifteen-year-old.12 He was sentenced to and served three months in prison and was dishonorably discharged from the military. 13 Kebodeaux registered as a sex offender in El Paso, Texas, on August 8, 2007.14 He then moved to San Antonio, Texas, but failed to update his state registration or inform authorities of his relocation as required by SORNA.15On March 12, 2008, the police arrested Kebodeaux in San Antonio for failing to update his registration.16 The following month, a federal grand jury indicted Kebodeaux for violating section 2250(a)(2)(A) of SORNA.17 Following a bench trial, Kebodeaux was convicted and sentenced to twelve months and one day of imprisonment, with a five year term of supervised release.18On appeal to the Fifth Circuit, Kebodeaux argued that Congress can only regulate interstate commerce.19 Thus, according to Kebodeaux, Congress could not enact section 2250(a)(2)(A) of SORNA because that provision only regulates intrastate activities.20 In addition, Kebodeaux argued that no other source of Article I authority empowered Congress to impose SORNA's registration requirements. …