                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    LELAND J. GAUTIER, an individual,

                Plaintiff-Appellee,

    v.                                                   No. 09-6123
                                                   (D.C. 5:08-CV-00445-C)
    JUSTIN JONES, in his official                        (W.D. Okla.)
    capacity, Director, Department of
    Corrections of the State of Oklahoma,

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.


         Justin Jones, the Director of the Oklahoma Department of Corrections,

appeals from the district court’s summary-judgment ruling that Oklahoma’s Sex

Offenders Registration Act (OSORA) violates Leland J. Gautier’s

procedural-due-process rights and may not be enforced unless there is a hearing




*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
regarding his current dangerousness. We have jurisdiction under 28 U.S.C.

§1291, and we reverse.

                                   B ACKGROUND

      In March 1997, Gautier pleaded no contest to a sexual-battery charge

involving a seventeen-year-old female. He was given a two-year suspended

sentence and required to register as a sex offender “for a period of ten (10) years

from the date of registration.” 57 Okla. Stat. Ann. § 583(C) (Supp. 1996). In

2004, the statute was amended to clarify that the registration period runs from the

ending date of the sentence. See 2004 Okla. Sess. Laws, ch. 162, § 1. Thus,

Gautier’s registration requirement was set to end in March 2009. 1

      But in 2007, the Oklahoma Legislature substantially modified the OSORA.

It required the Department of Corrections to “establish a risk assessment review

committee” that would develop and employ “a sex offender screening tool.”

2007 Okla. Sess. Laws, ch. 261, § 26 (codified at 57 Okla. Stat. Ann. § 582.5

(Supp. 2009) (amended 2009)). The purpose of the tool was to identify an

offender’s “level of risk” based on “an objective point system,” with the

convicted offense “serv[ing] as the basis for the minimum numeric risk level.”

Id. The tool was to be calibrated to three risk levels:



1
      Gautier does not challenge this amendment, and appears to suggest that he
had anticipated at the time of his plea that the registration period would be
counted from the end of his two-year sentence.

                                         -2-
               1.    Level one (low): a designated range of points on the sex
        offender screening tool indicating that the person poses a low danger
        to the community and will not likely engage in criminal sexual
        conduct;
               2.    Level two (moderate): a designated range of points on
        the sex offender screening tool indicating that the person poses a
        moderate danger to the community and may continue to engage in
        criminal sexual conduct; and
               3.    Level three (high): a designated range of points on the
        sex offender screening tool indicating that the person poses a serious
        danger to the community and will continue to engage in criminal
        sexual conduct.

Id. 2

        Each of the three risk levels was then given a specific registration period.

Specifically, level-one offenders were given a fifteen-year period; level-two

offenders were given a twenty-five year period; and level-three offenders were

given a lifetime period. Id. § 27 (codified at 57 Okla. Stat. Ann. § 583(C) (Supp.

2009)).

        Shortly after the 2007 changes to the OSORA took effect, the Department

of Corrections notified Gautier that he scored a level three on its newly developed

screening tool, which considered only “the severity of the sex crime and the

number of sex crime convictions.” Aplt. App. at 43. The screening tool in the

record provides a level-three score for “Sexual Battery to [a] Person Over 16,”



2
      Effective November 2009, the risk assessment review committee was
replaced by a “sex offender level assignment committee,” and the screening tool
was discarded, with the offender level being determined by “federal law” and the
offense of conviction. 2009 Okla. Sess. Laws, ch. 404, § 4.

                                          -3-
Gautier’s offense. Id. at 45. Accordingly, Gautier was notified of the lifetime

registration requirement.

      Gautier filed a civil-rights suit against Jones in federal court. He then

sought summary judgment on the basis that the lifetime-registration requirement

violated his plea agreement and his ex-post-facto and due-process rights. The

district court rejected Gautier’s arguments, except in regard to procedural due

process, which, it determined, mandated a hearing before Gautier could be

classified as a level-three sex offender. Consequently, the district court granted

Gautier summary judgment on that point and enjoined Jones from enforcing the

OSORA against Gautier without such a hearing. Jones appealed.

                                    D ISCUSSION

                              I. Standards of Review

      “We review de novo the grant of summary judgment to determine whether

any genuine issues of material fact were in dispute and, if not, whether the district

court correctly applied the substantive law at issue.” Anderson v. Commerce

Constr. Servs., Inc., 531 F.3d 1190, 1193 (10th Cir. 2008). “Because the parties

do not dispute the facts, we have before us a purely legal question.” Id.

(quotation omitted).

                            II. Procedural Due Process

      “The Fourteenth Amendment’s Due Process Clause protects persons against

deprivations of life, liberty, or property; and those who seek to invoke its

                                         -4-
procedural protection must establish that one of these interests is at stake.”

Wilkinson v. Austin, 545 U.S. 209, 221 (2005). Gautier contends that he has a

liberty interest in not being labeled a level-three sex offender, i.e., someone who

“poses a serious danger to the community and will continue to engage in criminal

sexual conduct,” 2 Okla. Sess. Laws 2007, ch. 261, § 27 (codified at 57 Okla.

Stat. Ann. 582.5(C)(3) (Supp. 2009)). “We find it unnecessary to reach this

question, however, because even assuming, [for the sake of argument], that

[Gautier] has been deprived of a liberty interest, due process does not entitle him

to a hearing to establish a fact that is not material under the [Oklahoma] statute.”

Conn. Dep’t of Public Safety v. Doe, 538 U.S. 1, 7 (2003).

      In other words, a convicted sex offender who challenges a registration

requirement on the ground that he was not given a hearing to determine whether

he is currently dangerous, must at least show that current dangerousness is

relevant to the registration requirement. See id. (holding that Connecticut’s

Megan’s Law did not violate procedural due process because “the law’s

[registration] requirements turn on an offender’s conviction alone—a fact that a

convicted offender has already had a procedurally safeguarded opportunity to

contest”). Here, the OSORA directed the development and use of a three-level

screening tool that assigned a “minimum numeric risk level” based on the offense

of conviction. 2 Okla. Sess. Laws 2007, ch. 261, § 26 (codified at 57 Okla. Stat.

Ann. § 582.5(C) (Supp. 2009)) (emphasis added) (amended 2009). The tool that

                                          -5-
was ultimately developed and used in Gautier’s case identified his crime as an

offense warranting the highest risk level, three. Thus, Gautier’s conviction alone

was sufficient to place him in the highest level, without regard to any extraneous

circumstances bearing on his proclivity to re-offend. Consequently, even if

Gautier could prove he is not currently dangerous, it would not change his risk

level, which, at a minimum, is level three. “[D]ue process does not require the

opportunity to prove a fact that is not material to the State’s statutory scheme.”

Conn. Dep’t of Public Safety, 538 U.S. at 4. 3

                                    C ONCLUSION

      The judgment of the district court, to the extent of its procedural-due-

process ruling, is REVERSED. 4

                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Circuit Judge



3
       The district court reasoned that Connecticut Department of Public Safety is
not controlling because the OSORA uses the offender’s conviction as “the starting
point to assess future dangerousness, not the sole factor.” Aplt. App. at 292. But
that reasoning ignores the fact that, in this case, the starting point (Gautier’s
conviction) was necessarily the ending point, given that the prescribed minimum
risk level is the highest level. No other factor could have had any bearing on the
assignment of Gautier’s risk level.
4
      While this case was on appeal, the district court entered an order staying its
procedural due-process ruling as to non-party sex offenders. That stay order is
moot in light of our reversal.

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