09-3106-cr
United States v. Romeo


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATIO N TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 19 th day of July, two thousand ten.

PRESENT:         REENA RAGGI,
                 GERARD E. LYNCH,
                 DENNY CHIN,
                                 Circuit Judges,
------------------------------------------------------
UNITED STATES OF AMERICA,
                         Appellee,
                 v.                                            No. 09-3106-cr

PATRICK ROMEO,
                         Defendant-Appellant.
------------------------------------------------------
APPEARING FOR APPELLANT:                          JAMES P. EGAN, Research & Writing Specialist
                                                  (Melissa A. Tuohey, Assistant Federal Public
                                                  Defender, on the brief), for Alexander Bunin,
                                                  Federal Public Defender, Syracuse, New York.

APPEARING FOR APPELLEE:                           PAUL D. SILVER, Assistant United States
                                                  Attorney (Lisa M. Fletcher, Assistant United
                                                  States Attorney, on the brief), for Richard S.
                                                  Hartunian, United States Attorney for the
                                                  Northern District of New York, Albany, New
                                                  York.
       Appeal from the United States District Court for the Northern District of New York

(Glenn T. Suddaby, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on July 17, 2009, is AFFIRMED in part and

REMANDED for proceedings consistent with this order.

       Defendant Patrick Romeo was convicted, following a guilty plea,1 of one count of

failing to register or update his registration in violation of the Sex Offender Registration and

Notification Act (“SORNA” or “Act”). See 18 U.S.C. § 2250(a). Romeo challenges his

conviction on the grounds that SORNA (1) exceeds Congress’s legislative authority under

the Commerce Clause; (2) unconstitutionally delegates legislative authority to the United

States Attorney General; and (3) was inapplicable to Romeo at the time of his failure to

register because California and New York had yet to implement the Act’s registration

requirements. Romeo further challenges his sentence of 66 months’ incarceration, a variance

from his 27-to-33-month Guidelines range, as both procedurally and substantively

unreasonable. We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision.




       1
         Before entering his guilty plea, Romeo moved to dismiss the indictment on various
grounds, including those raised on appeal. His conditional plea agreement preserved his right
to challenge both the district court’s denial of his motion to dismiss the indictment and any
sentence longer than 18 months’ incarceration.

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       1.     Standards of Review

       We review de novo the district court’s legal conclusions, including those interpreting

and determining the constitutionality of federal statutes. See United States v. Stewart, 590

F.3d 93, 109 (2d Cir. 2009); City of New York v. Beretta U.S.A. Corp., 524 F.3d 384, 392

(2d Cir. 2008). We review defendants’ sentencing challenges under an abuse-of-discretion

standard that “incorporates de novo review of questions of law (including interpretation of

the Guidelines) and clear-error review of questions of fact.” United States v. Legros, 529

F.3d 470, 474 (2d Cir. 2008); see also United States v. Cavera, 550 F.3d 180, 187 (2d Cir.

2008) (en banc). We will set aside a district court’s sentence as substantively unreasonable

only in “exceptional cases where the trial court’s decision cannot be located within the range

of permissible decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks

omitted).

       2.     SORNA

       Romeo’s SORNA challenges are foreclosed by recent precedents of this court issued

after Romeo initiated his appeal.

       Romeo’s Commerce Clause argument fails in light of United States v. Guzman, 591

F.3d 83, 89-90 (2d Cir. 2010), in which this court held that 18 U.S.C. § 2550(a) reflects a

proper exercise of Congress’s Commerce Clause powers under the framework set forth in

United States v. Lopez, 514 U.S. 549 (1995).          To the extent the Act’s registration

requirements regulate intrastate activity, Guzman upholds such regulation as “a perfectly



                                              3
logical way to help ensure that states will more effectively be able to track sex offenders

when they do cross state lines.” 591 F.3d at 91.

       Guzman similarly disposes of Romeo’s delegation argument. Noting a circuit split

over whether 42 U.S.C. § 16913(d) does, in fact, authorize the Attorney General to determine

whether SORNA applies to pre-enactment sex offenders, Guzman concluded that, even if it

did, no delegation problem exists because the Attorney General’s authority is “highly

circumscribed.” United States v. Guzman, 591 F.3d at 93.

       Finally, Romeo’s argument that SORNA did not yet apply to him at the time of

indictment because California, where he committed his underlying sex offense, and New

York, where he failed to register, had yet to implement SORNA’s registration requirements

is foreclosed by United States v. Hester, 589 F.3d 86 (2d Cir. 2009). Hester held that a

state’s failure to implement SORNA’s particular registration scheme does not excuse a

defendant’s failure to meet his SORNA obligations by registering with state programs

already in existence. See id. at 93; United States v. Guzman, 591 F.3d at 93 (“SORNA

creates a federal duty to register with the relevant existing state registries regardless of state

implementation of the specific additional requirements of SORNA.”). Here, it is undisputed

that Romeo was subject to existing registration regimes in both California and New York.

       In sum, we reject Romeo’s challenges to SORNA and its application to his conduct

as without merit. We therefore affirm his conviction.




                                                4
       3.     Sentencing Challenges

              a.      Procedural Reasonableness

       Romeo asserts procedural error in the district court’s imposition of an eight-level

Guidelines enhancement applicable when an unregistered sex offender commits a sex offense

against a minor. See U.S.S.G. § 2A3.5(b)(1)(C). Romeo argues that the district court’s

finding that he committed a sex offense while unregistered is clearly erroneous. He further

submits that the district court’s misreading of the record infected its decision to impose a

non-Guidelines sentence.      We reject Romeo’s Guidelines challenge, but we cannot

confidently conclude that a factual error did not inform the non-Guidelines sentence.

                      (1)    The Guidelines Calculation

       For purposes of the challenged Guidelines enhancement, a “sex offense” is, in

pertinent part, any crime including as an element a sexual act or sexual contact with another.

See U.S.S.G. § 2A3.5(b)(1)(C), cmt. n.1 (cross-referencing 42 U.S.C. § 16911(5)). Under

New York law, a person commits sexual abuse in the first or second degree when he subjects

a person less than eleven or fourteen years old, respectively, to “sexual contact,” N.Y. Penal

Law §§ 130.65(3), 130.60(2), defined broadly to include “any touching [whether direct or

through clothing] of the sexual or other intimate parts of a person not married to the actor for

the purpose of gratifying sexual desire of either party,” id. § 130.00(3). New York courts

have held that the upper leg and upper thigh are intimate parts within the meaning of the

statute, see People v. Gray, 201 A.D.2d 961, 962, 607 N.Y.S.2d 828, 829 (4th Dep’t 1994);



                                               5
People v. Morbelli, 144 Misc. 2d 482, 487, 544 N.Y.S.2d 442, 445-46 (N.Y. Crim. Ct. 1989);

35A N.Y. Jur. 2d: Criminal Law: Substantive Principles and Offenses § 663; see also James

v. Mukasey, 522 F.3d 250, 258 (2d Cir. 2008) (stating that New York’s definition of “sexual

contact” is broader than federal statute’s definition of sexual contact to include touching of

“genitalia, anus, groin, breast, inner thigh, or buttocks” (internal quotation marks omitted)).

The required purpose to gratify sexual desire can be inferred from the circumstances of the

conduct. See In re Najee A., 26 A.D.3d 258, 258-59, 809 N.Y.S.2d 80, 80 (1st Dep’t 2006);

People v. Beecher, 225 A.D.2d 943, 944-45, 639 N.Y.S.2d 863, 865 (3d Dep’t 1996); see

also People v. Teicher, 52 N.Y.2d 638, 646, 439 N.Y.S.2d 846, 850 (1981) (rejecting

argument that touching was “too fleeting” to establish sexual gratification element because

statute “does not require that actual gratification occur, but only that the touching be for that

purpose”).

       The district court determined that Romeo had committed a sex offense against “more

than one minor . . . by touching and rubbing their inner thighs and by pulling them up against

[his] body and rubbing up against them.” Sent’g Tr. at 9-10. These findings are supported

by paragraphs 35 and 37 of the Presentence Report (“PSR”), which detail acts sufficient to

support a preponderance finding that Romeo committed sexual abuse in the first and second

degree under New York law.

       As acknowledged by the government, the district court erred in referring to

“supporting deposition[s] from four minors” as further evidence supporting its factual



                                               6
findings. Sent’g Tr. at 9. The supporting depositions were, in fact, provided by parents of

the allegedly abused minors and a social worker. Whether the district court misperceived the

identities of the deposed persons or simply misspoke in describing them, any error was

harmless, as the record evidence was more than sufficient for the district court to conclude,

by a preponderance, that Romeo did commit sex offenses. See United States v. Williams,

524 F.3d 209, 214 (2d Cir. 2008) (recognizing that procedural error at sentencing can be

reviewed for harmlessness).

       Accordingly, we reject Romeo’s challenge to the district court’s Guidelines

calculation as without merit.

                     (2)     The Challenged Variance

       Romeo argues that the district court based its decision to impose a non-Guidelines

sentence on a clearly erroneous factual finding that Romeo victimized four minors in New

York, “ages 7 to 12,” Sent’g Tr. at 12, in addition to the fifteen-year-old girl whose abuse in

California served as the basis for the conviction triggering Romeo’s reporting obligation.

Because Romeo failed to object to the district court’s finding as to the number of alleged

victims, we review this aspect of his sentencing challenge for plain error.2 See Fed. R. Crim.

       2
        At oral argument, Romeo suggested through counsel that he preserved the identified
error by arguing that he did not abuse any children. We are not persuaded. Romeo argued
to the district court that his alleged conduct was not sexual in nature, not that the alleged
conduct did not occur. Further, his objections raised in connection with the district court’s
imposition of a Guidelines enhancement pursuant to U.S.S.G. § 2A3.5(b)(1)(C) did not put
the district court on notice that it had misunderstood the number of alleged victims in
deciding to impose a non-Guidelines sentence. See United States v. Gallerani, 68 F.3d 611,
617 (2d Cir. 1995) (“To preserve an objection for appellate review, a defendant must

                                              7
P. 52(b); United States v. Needham, 604 F.3d 673, 678 (2d Cir. 2010) (recognizing that plain

error analysis requires (1) error, (2) that is plain, (3) that affects defendant’s substantial

rights, and (4) that seriously affects fairness, integrity, or public reputation of judicial

proceedings). Here, the PSR and supporting depositions do indicate error, in that three, not

four, minors were victimized in New York.                Although confusion on the point is

understandable, see PSR ¶ 10 (referring to four victims, ages 7 to 12); ¶ 35 (discussing

defendant’s conduct with respect to boys ages seven, nine, ten, and twelve), the depositions,

which reference the children by name, indicate that three boys were victimized by Romeo.3

The government confirms as much when it explains that although “documents before the

district court variously refer to the 9-year-old boy and to the 10-year-old boy,” this is “the

same child.” Gov’t Br. at 8 n.5.

       It is plain that imposition of sentence based on clearly erroneous facts constitutes

“significant procedural error.” Gall v. United States, 552 U.S. 38, 51 (2007); accord United

States v. Cavera, 550 F.3d at 190. We are doubtful, however, that the identified error

affected Romeo’s substantial rights. Cf. United States v. Thomas, 274 F.3d 655, 669 (2d Cir.

2001) (en banc) (recognizing sentencing error of 52 months to affect substantial rights).

Given the district court’s stated concern over Romeo’s repeated efforts to cultivate and abuse

articulate it to the trial court with sufficient distinctness to alert the court to the nature of the
claimed defect.”); accord United States v. Gordon, 291 F.3d 181, 190 (2d Cir. 2002).
       3
          Even if Romeo’s improper touching rose to the level of “sexual abuse” only with
respect to two of these children, the district court was entitled to consider Romeo’s touching
of a third child in determining whether to impose a sentence within or outside the Guidelines.
See United States v. Cavera, 550 F.3d at 190-91 (citing 18 U.S.C. § 3661).

                                                 8
relationships of trust with children, see Sent’g Tr. at 11, it might well have imposed the same

sentence regardless of whether Romeo’s contact was with three New York minors or four.

If so, any procedural error in identifying the number of children at issue would be harmless

and, therefore, not prejudicial under plain error analysis. See United States v. Gomez, 580

F.3d 94, 100, 102 (2d Cir. 2009). We cannot be certain on the record before us, however,

that the error played no role in the court’s imposition of sentence. In these circumstances,

we remand with a direction that, after hearing from the parties, the district court indicate on

the record whether a correct understanding of the number of victims would have made a

difference in the sentence imposed. See generally United States v. Crosby, 397 F.3d 103 (2d

Cir. 2005); United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994).

          If the district court indicates on remand that the sentence would have been the same

as originally imposed, the identified error would be harmless. On the other hand, if the

district court states that it would have imposed a different sentence had it correctly

understood the number of victims, the court is directed to vacate the sentence, arrange for

defendant’s appearance, and proceed to resentencing. See United States v. Crosby, 397 F.3d

at 120.

          Either party may invoke the jurisdiction of this Court to consider a subsequent appeal

from whatever final decision the district court makes by notifying the Clerk within fourteen

days of the district court’s decision. See id. (citing United States v. Jacobson, 15 F.3d 19).

Any such renewed appeal will be assigned to this panel.



                                                9
                 b.       Substantive Reasonableness

       Because we identify a procedural defect in Romeo’s sentence that warrants remand,

we do not now reach his challenge to the substantive reasonableness of the term of

incarceration.        See United States v. Cavera, 550 F.3d at 190 (recognizing that upon

identification of procedural error “one proper course” is to remand so district court “can

either explain what it was trying to do, or correct its mistake and exercise its discretion anew”

rather than proceed to review for substantive reasonableness); United States v. Crosby, 397

F.3d at 120.

       4.        Conclusion

       We have considered Romeo’s other arguments on appeal and conclude that they are

without merit. Accordingly, we AFFIRM Romeo’s conviction and REMAND his sentence

for proceedings consistent with this order.

                                      FOR THE COURT:
                                      CATHERINE O’HAGAN WOLFE, Clerk of Court




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