U.S. v. Pena

582 F.Supp.2d 851

UNITED STATES of America v. Alejandro Z. PENA.

No. MO:08-CR-00127(1)-RAJ.

United States District Court, W.D. Texas, Midland-Odessa Division.

October 20, 2008.

COPYRIGHT MATERIAL OMITTED

John S. Klassen, U.S. Attorney's Office, Midland, TX, for Plaintiff.

E. Jason Leach, Law Office of E. Jason Leach, Odessa, TX, for Defendant.

ORDER ADOPTING THE MAGISTRATE'S REPORT AND RECOMMENDATION

ROBERT A. JUNELL, District Judge.

On this day, the Court considered the Report and Recommendation of United States Magistrate Judge L. Stuart Platt, filed in the above-captioned cause on September 16, 2008, in connection with Defendant Alejandro Pena's Motion to Dismiss Indictment and the Government's Opposition to the Defendant's Motion to Dismiss.

I. Referral

Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court may, on its own motion, refer a pending matter to a United States Magistrate Judge for a Report and Recommendation. The losing party may contest the Report and Recommendation by filing written objections within ten days of being served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b)(1). The objections must specifically identify those findings or recommendations to which objections are being made. The district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419 (5th Cir. 1987).

On August 8, 2008, this Court referred this matter for a Report and Recommendation to U.S. Magistrate Judge Platt. On September 15, 2008, Magistrate Judge Platt issued his Report and Recommendation ("R & R") to this Court, which was filed with the Clerk on September 16, 2008. In his R & R, Judge Platt recommended Defendant's Motion to Dismiss the Indictment be denied.

II. De Novo Review

A party's failure to file written objections to the proposed findings and recommendations contained in this Report within ten (10) days after being served with a copy of the Report and Recommendation shall bar that party from de novo review by the district court of the proposed findings and recommendations and, except upon grounds of plain error, shall bar the party from appellate review of proposed factual findings and legal conclusions accepted by the district court to which no objections were filed. 28 U.S.C. § 636(b)(1)(C); Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir.1996) (en banc) (holding that failure to raise objections to the magistrate's recommendations waives that party's right to review in the district court, and those claims not preserved by such objection are waived on appeal); U.S. v. Wilson, 864 F.2d 1219 (5th Cir.1989); Thomas v. Arn, 474 U.S. 140, 150-53, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).

Defendant filed his set of Objections on September 26, 2008. The Government filed no Objections to the Magistrate's Report and Recommendation. The Court finds that Defendant's specific objections were timely filed and de novo review by this Court was therefore triggered as to those objections alone. The objections must specifically identify those findings or recommendations to which objections are being made. The district court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419 (5th Cir.1987).

As to the Magistrate's remaining Report and Recommendation, to which neither side objected, this Court will review such under a clearly erroneous or contrary to law standard. Section 636(b)(1) of Title 28 and Federal Rule of Civil Procedure 72(b) provide that within ten days after a magistrate judge issues his recommendation, a party may file specific written objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made" before accepting, rejecting, or modifying those findings or recommendations. 28 U.S.C. § 636(b)(1). After due consideration, the Court is of the opinion that the Magistrate Judge's Report and Recommendation, to which neither side objected, was neither clearly erroneous nor contrary to law and should therefore be adopted.

As for the portions of the R & R to which objections were timely filed by Defendant Pena, this Court will now engage in a de novo review of the Magistrate's Report and Recommendation.

III. Background

On August 8, 1996, Defendant Pena pleaded guilty to Indecent Solicitation of a Child in violation of Kansas state law. Sometime later, Defendant Pena moved from Kansas to Colorado. While residing in Colorado, Defendant Pena was arrested three times for failure to register as a sex offender before finally complying in January 2007. Defendant Pena then moved from Colorado to Texas. On June 13, 2008, Defendant Pena was arrested in Crane, Texas. As of June 13, 2008, Defendant had not registered as a sex offender in Texas, although he admitted to working in Texas for six months without having registered.

On June 25, 2008, Defendant was indicted on one count of violating 18 U.S.C. § 2250(a), being a sex offender, traveling in interstate commerce between Colorado and Texas, and failing to update his registration as required by the Sex Offender Registration and Notification Act (SORNA), which is Title I of the Adam Walsh Child Protection and Safety Act of 2006.

IV. Recommendations of the Magistrate

The Magistrate recommended this Court find Defendant's Motion to Dismiss Indictment to be without merit. According to the Magistrate's Report and Recommendation, the Defendant's claim fails because Congress did not exceed its authority under the Commerce Clause by enacting 18 U.S.C. § 2250 and 42 U.S.C. § 16913. The Magistrate found that:

A. By regulating sex offenders who travel in interstate commerce, SORNA is regulating persons in interstate commerce, which falls within the second prong of United States v. Lopez, 514 U.S. 549, 558-559 [115 S.Ct. 1624, 131 L.Ed.2d 626] (1995), and is therefore valid under the Commerce Clause.

B. Sections 16913 and 2250 should be treated as interrelated components of SORNA, and SORNA itself should be viewed as a whole, instead of reviewing its registration and criminal components separately as Defendant suggests.

V. Defendant's specific objections to the Magistrate's Report and Recommendation

The Defendant objected to the Magistrate's Report and Recommendation, stating that:

The Magistrate erred in finding that the Indictment was valid since SORNA does not regulate any activity that substantially has an effect on interstate commerce. Defendant Pena asserts that failing to register does not encompass an act that falls under the valid exercise of Congress' Commerce Clause powers.

VI. Discussion of Recommendation in Light of Objections

After de novo review of this claim, this Court concludes that the Magistrate was factually and legally correct in his analysis and the Defendant's objections are without merit.

SORNA is part of the Adam Walsh Child Protection and Safety Act of 2006, which was enacted on July 27, 2006. SONA requires states to maintain a database of sex offenders. See 42 U.S.C. § 16912. SORNA also requires sex offenders to register before completing a sentence of imprisonment or within three days after being sentenced to a term that does not include confinement. Sex offenders who fail to update their information may be fined and imprisoned for up to ten years. 18 U.S.C. § 2250.

Defendant Pena's contention in support of dismissal is that SORNA is not a valid exercise of Congress' Commerce Clause Power. The Commerce Clause grants Congress the power "to regulate commerce with foreign Nations, and among the several states." U.S. Const. Art. I. § 8, cl. 3. The power to regulate commerce between the states includes the power to regulate: (1) "the use of channels of interstate commerce;" (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come from intrastate activities;" and (3) "those activities having a substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Only a "rational basis" must exist for concluding that the activity legislated substantially affects interstate commerce. Gonzales v. Raich, 545 U.S. 1, 17, 22, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005).

This Court concludes that SORNA withstands a constitutional challenge under the second prong of the Lopez test because it regulates persons traveling in interstate commerce. See Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624. SORNA's criminal provision at 18 U.S.C. § 2250 contains an appropriate jurisdictional element which expressly limits SORNA prosecutions to those individuals who have traveled in interstate commerce. This Court agrees with the finding of United States v. Shenandoah, 572 F.Supp.2d 566, 574-76 (M.D.Pa.2008) that such an express limitation evidences that Congress was acutely aware of the breadth of its power under the Commerce Clause when it enacted SORNA. See United States v. Adkins, No. 07-0059, 2007 WL 4335457, at *6-7 (N.D.Ind. December 7, 2007) ("Congress was aware of the limits of its power, however, and included the jurisdictional element of interstate travel."). Because federal prosecution under § 2250 does not reach the purely intrastate movement of sex offenders who fail to comply with registration requirements, the Court finds that SORNA does not run afoul of the Commerce Clause.

This holding is bolstered by the Congressional intent underlying SORNA, i.e., to protect public safety by creating a mechanism for tracking sex offenders as they move from state to state. Congress's authority "to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained and is no longer open to question." See Caminetti v. United States, 242 U.S. 470, 491, 37 S.Ct. 192, 61...