     Case: 14-40345      Document: 00512813977         Page: 1    Date Filed: 10/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-40345
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         October 24, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

JASON SCOTT KLINEFELTER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-746-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Jason Scott Klinefelter was found guilty at a bench trial of one count of
failing to register as a sex offender as required under the Sex Offender
Registration and Notification Act (SORNA), and he was sentenced to 21
months in prison and three years of supervised release. On appeal, Klinefelter
contends that the Government failed to show that he was required to register
under SORNA. In particular, he maintains that his Maryland conviction for


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-40345    Document: 00512813977     Page: 2   Date Filed: 10/24/2014


                                 No. 14-40345

second degree rape did not qualify as a “sex offense” because the state statute
permits a conviction for consensual sexual conduct if the victim is at least 13
years old and the offender was not more than four years older than the victim,
because such conduct is considered an exception to the definition of a “sex
offense.” See 42 U.S.C. § 16911(5)(C) (statutory exception). Klinefelter asserts
that under the categorical approach, the Government is unable to prove that
his conviction did not fall under the exception. We have rejected the argument
that the categorical approach should be used in these circumstances and have
instead applied a “circumstance-specific” approach. United States v. Gonzalez-
Medina, 757 F.3d 425, 428-32 (5th Cir. 2014).         The stipulation of facts
submitted at the bench trial established that Klinefelter was more than four
years older than the victim.     Klinefelter concedes that his argument is
foreclosed by Gonzalez-Medina, but he seeks to preserve the issue for further
review.
      In addition, Klinefelter asserts that the SORNA intrastate registration
requirement is unconstitutional because it exceeds Congress’s authority under
the Commerce Clause. He maintains that the Necessary and Proper Clause
does not authorize the enactment of SORNA because the statute improperly
expands federal power. Klinefelter concedes, however, that his arguments are
foreclosed by United States v. Whaley, 577 F.3d 254 (5th Cir. 2009); he wishes
to raise his challenges to preserve them for further review.       Accordingly,
Klinefelter’s unopposed motion for summary disposition is GRANTED, and the
judgment of the district court is AFFIRMED.




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