U.S. v. Ensminger

567 F.3d 587

UNITED STATES of America, Plaintiff-Appellee, v. Terry Alan ENSMINGER, Defendant-Appellant.

No. 08-30183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 10, 2009.

Filed June 3, 2009.

Anthony Gallagher (argued) and Steven C. Babcock, Office of the Federal Public Defenders for the District of Montana, Billings, MT, for defendant-appellant Terry Alan Ensminger.

Marcia Hurd (argued), Eric B. Wolff, and William W. Mercer, United States Attorney for the District of Montana, Billings, MT, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Montana, Richard F. Cebull, District Judge, Presiding. D.C. No. 1:07-cr-00156-RFC-1.

Before: W. FLETCHER, RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges.

TALLMAN, Circuit Judge:

Terry Alan Ensminger pled guilty to a single count of failure to register as a sexual offender in violation of 18 U.S.C. § 2250(a), the enforcement provision of the Sex Offender Registration and Notification Act. After securing a continuance of the sentencing hearing, he moved to withdraw his guilty plea in order to file a motion to dismiss the indictment. The district court denied his motion and imposed a 21-month sentence. On appeal, Ensminger contends that the district court abused its discretion by denying his motion to withdraw his guilty plea. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I

A

On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587. Title I of the Act codifies the Sex Offender Registration and Notification Act ("SORNA"), establishing a national system for registration "[i]n order to protect the public from sex offenders and offenders against children." 42 U.S.C. § 16901. "SORNA is essentially an effort by Congress to close the loopholes in previous sex offender registration legislation and to standardize registration across the states." United States v. Ditomasso, 552 F.Supp.2d 233, 236 (D.R.I.2008) (citing 152 Cong. Rec. S8012, 8013 (July 20, 2006)).¹

SORNA requires individuals who fall under its definition of "sex offender" to register "in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student," and to update his registration in the relevant jurisdiction after each change of name, residence, employment, or student status. 42 U.S.C. § 16913. SORNA provides for criminal penalties for failing to comply with its registration requirements. Section 2250(a) states as follows:

Whoever —

(1) is required to register under the Sex Offender Registration and Notification Act;

(2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a).

B

In September 2007, Ensminger, an individual required under SORNA to register as a sex offender based on a prior felony conviction, traveled interstate from Washington to Montana.² He was later arrested in Billings and, on November 15, 2007, he was indicted in the District of Montana on one count of failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). Ensminger initially entered a plea of not guilty before a Magistrate Judge.

On January 10, 2008, after the deadline to file pre-trial motions had passed, Ensminger entered into a plea agreement in which he admitted guilt and agreed to plead guilty to the charge. Ensminger appeared before the Honorable Richard F. Cebull on a motion to change his plea. After finding that the plea was made knowingly, intelligently, and voluntarily, Judge Cebull accepted the guilty plea.

The Probation Department prepared a presentence investigation report ("PSR") and circulated it to the parties. Based on the total offense level and Ensminger's criminal history, the PSR recommended a Guidelines sentencing range of 15 to 21 months. The sentencing hearing was originally set for April 17, 2008. However, upon Ensminger's motion, the hearing was continued to allow defense counsel additional time to conduct further investigation and to research and formulate objections to the findings and recommendations of the probation officer.

Ensminger subsequently filed a motion to withdraw his guilty plea. He based his motion on an order from the Middle District of Florida in United States v. Powers, 544 F.Supp.2d 1331 (M.D.Fla.2008), vacated, 562 F.3d 1342 (11th Cir.2009). On April 18, 2008, the district judge in that case granted a defense motion to dismiss an indictment, holding that § 2250(a), SORNA's enforcement provision, did not regulate activities that substantially affected interstate commerce and therefore exceeded Congress's power under the Commerce Clause.³ Id. at 1336. Ensminger argued that the intervening decision provided grounds to withdraw his guilty plea in Montana because his case was "subject to dismissal for all the same reasons articulated by the [Florida][c]ourt in Powers." The government opposed his motion.

By order dated May 14, 2008, the Montana district court denied Ensminger's motion. The district court ruled that Ensminger had failed to present a "fair and just" reason to withdraw his guilty plea, noting that Powers had no precedential value in the Ninth Circuit or in Montana. In so ruling, Judge Cebull also expressly rejected the Powers decision on the merits, finding that "[t]he enactment of § 2250, the criminal penalty provision of SORNA, was a valid exercise of congressional authority under the Commerce Clause." Judge Cebull noted that this lone Florida district court decision ran contrary to the existing case law unanimously upholding SORNA against Commerce Clause challenges.

The sentencing hearing proceeded as scheduled and Ensminger was sentenced to a term of 21 months incarceration, to be followed by 3 years of supervised release.

II

Ensminger's sole contention on appeal is that the district court improperly denied his presentence motion to withdraw his guilty plea.⁴ A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir.2001). A court abuses its discretion when it rests its decision on an inaccurate view of the law, see United States v. Jones, 472 F.3d 1136, 1141 (9th Cir.2007), or on "a clearly erroneous finding of fact," United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir.2003).

Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal."⁵ The burden of establishing that withdrawal is warranted rests on the defendant. United States v. Davis, 428 F.3d 802, 805 (9th Cir.2005). The fair and just standard "is generous and must be applied liberally." United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir.2008). A defendant, however, may not withdraw his guilty plea "simply on a lark." United States v. Hyde, 520 U.S. 670, 676-77, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). We have often repeated that "[f]air and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." Jones, 472 F.3d at 1141; United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir.1987) (marking the origin of this language).

Here, Ensminger does not challenge the adequacy of the Rule 11 hearing, but instead argues that an intervening circumstance — namely, the Powers decision from the Middle District of Florida — satisfies his burden.⁶ Ensminger acknowledges that, even if it were still good law, "a district court opinion does not have binding precedential effect," NASD Dispute Resolution, Inc. v. Jud. Council of Cal., 488 F.3d 1065, 1069 (9th Cir.2007), especially one from another federal circuit. See also McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir.2004) ("The general rule is that a district judge's decision neither binds another district judge nor binds him, although a judge ought to give great weight to his own prior decisions."). He nevertheless contends that Rule 11(d)(2)(B) requires that he be permitted to withdraw his guilty plea so that he too can challenge the constitutionality of SORNA on Commerce Clause grounds. We have never applied the fair and just standard in a way that would extend to Ensminger's case and we decline to do so here.

Ensminger primarily relies on our decision in United States v. Ortega-Ascanio, 376 F.3d 879 (9th Cir.2004), which is the only occasion where we have considered a claim of "intervening circumstances" based on a change in the law. In Ortega-Ascanio, the defendant pled guilty to illegally reentering the United States following removal in violation of 8 U.S.C. § 1326(a). Id. at 882. After his guilty plea but before sentencing, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), which held that discretionary relief under § 212(c) of the Immigration and Nationality Act of 1952 remained available to aliens otherwise eligible for such relief at the time they pled guilty to the offense, notwithstanding the effective date of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act. Id. at 326, 121 S.Ct. 2271. Significan...