11-2115
United States v. Brunner

                                UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT
                                     ____________________

                                         August Term, 2011

            (Argued: June 21, 2012                            Decided: August 9, 2013)

                                        Docket No. 11-2115

                                      ____________________

UNITED STATES OF AMERICA,


                                        Appellee,

                           v.

KENNETH BRUNNER,

                                  Defendant-Appellant.1

                                      ____________________

Before: POOLER, RAGGI, and LYNCH, Circuit Judges.

          Appeal from the judgment of the United States District Court for the Northern

District of New York (Glenn T. Suddaby, J.) filed May 11, 2011 sentencing defendant

Kenneth Brunner principally to six months’ imprisonment pursuant to 18 U.S.C. §

2250(a) for knowingly failing to register and update his sex offender registration as

required by the Sex Offender Registration and Notification Act, (“SORNA”). On appeal,



1
    The Clerk of the Court is directed to amend the caption as above.
Brunner challenges Congress’s authority to require him to register when he was no longer

in the military and was no longer under federal supervision. As the Supreme Court’s

decision in United States v. Kebodeaux, 133 S. Ct. 2496 (2013) made clear, Congress

possessed the requisite authority through the Military and Necessary and Proper Clauses

to hold Brunner to SORNA’s registration requirements, thus we affirm the judgment of

the district court.

       Affirmed.

                                 ____________________

                            JAMES P. EGAN, (Lisa Peebles, Federal Public Defender, on
                            the brief) Syracuse, NY, for Defendant-Appellant Kenneth
                            Brunner.

                            BRENDA K. SANNES, Assistant United States Attorney,
                            (Richard Hartunian, United States Attorney, Lisa M. Fletcher,
                            Assistant United States Attorney, on the brief) Syracuse, NY,
                            for Appellee.

POOLER, Circuit Judge:

       Kenneth Brunner, a federal sex offender, appeals from his conviction in the United

States District Court for the Northern District of New York (Glenn T. Suddaby, J.) for

knowingly failing to register and update his sex offender registration pursuant to the Sex

Offender Registration and Notification Act, (“SORNA”). As Brunner’s principal

argument that Congress lacked authority to impose SORNA’s registration requirements

on him is now foreclosed by the Supreme Court’s decision in United States v. Kebodeaux,

133 S.Ct. 2496 (2013), we affirm.

                                             2
                                    BACKGROUND

        In June 2002, Brunner was found guilty by a general court-martial of carnal

knowledge and sodomy of a child under 16, in violation of Articles 120 and 125 of the

Uniform Code of Military Justice. Brunner was sentenced to 24 months’ confinement,

with 12 months suspended, and dishonorably discharged. New York State designated

Brunner a level 2 sex offender, which required him to register as a sex offender in New

York and to keep his registration current. New York state law classifies a level 2 sex

offender as one whose risk of repeat offense is moderate. NY Correction Law § 168-

k(2).

        When released from custody on June 3, 2003, Brunner completed a sex offender

registration form, listing his expected residence as Barneveld, New York. On that same

form, Brunner acknowledged his duty to notify the New York Department of Criminal

Justice Services (“DCJS”) in writing of any change of home address no later than ten days

after such a move. In August 2003, Brunner filed a change of address form listing his

new residence in Rome, New York. DCJS sent Brunner the mandatory annual

verification forms at his last-known address in Rome from 2007, 2008, and 2009, but the

forms were returned by the post office as undeliverable. On March 9, 2009, the Rome

City Court issued a warrant for Brunner, charging him with failure to register. On March

26, 2010, the Rome Police Department asked the U.S. Marshals Service for help finding

Brunner. An investigation revealed that Brunner had applied for food stamps and


                                             3
Medicaid under a false name, Christopher Wiatr, listing an address in Utica, New York.

The Marshals located Brunner at the address purportedly belonging to Wiatr, and on April

15, 2010, a federal grand jury for the Northern District of New York indicted Brunner for

failing to register as required by SORNA.

       Brunner moved to dismiss the indictment in district court. His principal argument

was that SORNA was unconstitutional as applied to him because before SORNA was

enacted in 2006, Brunner had already served his full sentence, left the military and

severed any connection to the federal government. The district court denied the motion,

finding that (1) as a federally convicted sex offender, Brunner lacked standing to raise a

Commerce Clause challenge; and (2) Section 2250(a)(2)(A)’s registration requirements

are “valid based on the federal government’s ‘direct supervisory interest’ over federal sex

offenders.’” Dist. Ct. Op. at 7 (quoting United States v. George, 625 F.3d 1124, 1130 (9th

Cir. 2010)).

       Brunner then entered a conditional guilty plea to the sole count of the indictment,

but preserved his right to appeal the constitutionality of SORNA as applied to him. Our

Court heard oral argument on June 21, 2012. After argument was heard, the Supreme

Court granted a petition for certiorari brought by the government in United States v.

Kebodeaux, 687 F.3d 232 (5th Cir. 2012). The facts of Kebodeaux closely mirror the

facts of this case: the defendant, required to register as a sex offender after being

convicted under the UCMJ of having sex with a minor, was convicted of knowingly


                                              4
failing to update his sex offender registration as required by SORNA following an in-state

change of residence. Id. at 234. On rehearing en banc, a divided Fifth Circuit held that

SORNA was unconstitutional because Congress lacked the authority to continue to

exercise authority over Kebodeaux after he served his sentence and ended his military

service. Id. The en banc court concluded that:

              The statute’s regulation of an individual, after he has served
              his sentence and is no longer subject to federal custody or
              supervision, solely because he once committed a federal
              crime, (1) is novel and unprecedented despite over 200 years
              of federal criminal law, (2) is not “reasonably adapted” to the
              government’s custodial interest in its prisoners or its interest
              in punishing federal criminals, (3) is unprotective of states’
              sovereign interest over what intrastate conduct to criminalize
              within their own borders, and (4) is sweeping in the scope of
              its reasoning.

Id. at 245. The Fifth Circuit found that Kebodeaux was “unconditionally” free after fully

serving his sentence, even though pre-SORNA federal law also required certain federal

sex offenders to register. Id. at 235 n.4. See Jacob Wetterling Crimes Against Children

and Sexually Violent Offender Registration Act, 42 U.S.C. § 14071. The Fifth Circuit

concluded that after “the federal government has unconditionally let a person free . . . the

fact that he once committed a crime is not a jurisdictional basis for subsequent regulation

and possible criminal prosecution.” Kebodeaux, 687 F.3d at 234-35.

       The government filed a petition for certiorari, which the Supreme Court granted on

January 11, 2013. United States v. Kebodeaux, 133 S. Ct. 928 (U.S. Jan. 11, 2013). The

Supreme Court reversed the Fifth Circuit on June 24, 2103. United States v. Kebodeaux,

                                             5
133 S. Ct. 2496 (2013). The Court held that Congress, through the Military Regulation

and the Necessary and Proper Clauses, possessed the authority to compel even federal

offenders who had completed their sentences and severed their connection to the military

to register as required by SORNA. The Supreme Court held that Kebodeaux’s release

was not “unconditional” because at all times relevant, Kebodeaux was subject to the

Wetterling Act. Id. at 2501. The Supreme Court held that the Wetterling Act “imposed .

. . registration requirements very similar to those that SORNA later imposed,” such that

Kebodeaux was never truly outside the scope of government authority. Id. at 2502. Thus,

the Supreme Court concluded that, as applied to defendants “already subject to the

Wetterling Act,” SORNA “[fell] within the scope [of] Congress’ authority under the

Military Regulation and Necessary and Proper Clauses.” Id.

       Following the Supreme Court’s decision, the parties submitted supplemental

briefing to our Court. We have reviewed the briefing, and we find no need for further

oral argument.

                                     DISCUSSION

       We review Brunner’s constitutional challenge to Section 2250(a) de novo. United

States v. Hester, 589 F.3d 86, 90 (2d Cir. 2009). “Due respect for the decisions of a

coordinate branch of Government demands that we invalidate a congressional enactment

only upon a plain showing that Congress has exceeded its constitutional bounds.” United

States v. Morrison, 529 U.S. 598, 607 (2000).


                                             6
       As described in detail in Kebodeaux, SORNA’s predecessor legislation was the

Wetterling Act, passed by Congress in 1994. Like SORNA, the Wetterling Act used the

federal purse as a means of compelling the states to adopt sex offender registration laws.

42 U.S.C. § 14071(i) (2000 ed.). The Wetterling Act required individuals who committed

federal sex crimes to register as sex offenders in the states in which the indviduals lived,

§ 14071(b)(7)(A), and imposed federal penalties on those who failed to register, as well

as on those who failed to keep their registrations current and accurate. Id.

§ 14072(i)(3)–(4). The registration requirements set forth in the Wetterling Act extended

to those convicted and “sentenced by a court martial for conduct in a category specified

by the Secretary of Defense under section 115(a)(8)(C) of title I of Public Law 105–119.”

§ 14072(i)(4).

       Congress enacted SORNA in 2006 as part of the Adam Walsh Child Protection

and Safety Act, Pub. L. 109-248, Tit. I., 120 Stat. 587 (2006), in an effort to make state

sex-offender registration and notification schemes “more comprehensive, uniform, and

effective.” Carr v. United States, 560 U.S. 438, ––––, 130 S. Ct. 2229, 2232 (2010).

SORNA requires in relevant part that sex offenders “shall register, and keep the

registration current, in each jurisdiction where the offender resides, where the offender is

an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA

“appl[ies] to all sex offenders, including sex offenders convicted of the offense for which

registration is required prior to the enactment of [SORNA].” 28 C.F.R. § 72.3 (2012).


                                              7
Under SORNA’s criminal enforcement provision, anyone who (1) is required to register

under SORNA; (2) is a sex offender as defined by SORNA as a result of a federal

conviction or travels in interstate commerce; and (3) knowingly fails to register, or to

update a registration; is subject to a fine or up to ten years’ imprisonment, or both. 18

U.S.C. § 2250 (a)(2)(A).

       In his post-Kebodeaux briefing to this Court, Brunner concedes that “as applied to

him, SORNA falls within the scope of Congress’s authority under the Military Regulation

and Necessary and Proper Clauses.” We agree. Kebodeaux allows us to draw but one

conclusion: that as Brunner was subject to the Wetterling Act at the time of his 2002

court-martial conviction, Congress plainly had the authority under the Military Regulation

and Necessary and Proper Clauses to hold Brunner to SORNA’s registration

requirements.

       Brunner presses two additional arguments to avoid application of Kebodeaux to his

case. First, he urges us to find that the government waived the Wetterling Act argument

by failing to raise it during the proceedings before the district court, or indeed in this

Court until after oral argument. Brunner is correct that as a “general rule . . . an appellate

court will not consider an issue raised for the first time on appeal.” Allianz Ins. Co. v.

Lerner, 416 F.3d 109, 114 (2d Cir. 2005) (quotation marks omitted). The government

concedes that it did not reference the Wetterling Act explicitly, but argues that it was

indirectly implicated in the government’s argument that SORNA was valid as applied to


                                               8
Brunner “based upon the federal government’s ‘direct supervisory interest’ over federal

sex offenders.” Even assuming that the government failed to raise the argument below,

the rule against considering arguments raised for the first time on appeal “is prudential,

not jurisdictional,” and we are free to exercise our “discretion to consider waived

arguments.” Sniado v. Bank Austria AG, 378 F.3d 210, 213 (2d Cir. 2004). Exercise of

that discretion is particularly appropriate where an argument presents a question of law

and does not require additional fact finding. Id. As the issue of the Wetterling Act

presents a question of law, and requires no additional fact finding. Brunner asks us to

find that Congress exceeded its constitutional power by subjecting him to SORNA at a

time when he was no longer subject to federal supervision. However, as the Supreme

Court recognizes—and as Brunner himself concedes—at all time following his military

conviction he was subject to the requirements of the Wetterling Act. Under these

circumstances, it would not promote the interests of justice to vacate Brunner’s

unquestionably valid conviction because the government failed to refer to the Wetterling

Act in the district court or its brief to this Court. We therefore exercise our discretion to

consider the issue here, and find Brunner bound by Kebodeaux.

       Second, Brunner argues that applying SORNA to him violates the Ex Post Facto

Clause. However, that argument is foreclosed by our Court’s decision in United States v.

Guzman, 591 F.3d 83 (2d Cir. 2010). There, we held that where defendants “were

convicted of traveling interstate and failing to register,” and “the travel and failure to


                                               9
register occurred after SORNA’s enactment and the effective date of the regulations

indicating that SORNA applies to all sex offenders,” then “[t]here is, therefore, no ex post

facto problem with their convictions.” Id. at 94. Here, Brunner pleaded guilty to failing

to register in violation of SORNA from June 2007 through April 2010. SORNA was

enacted in 2006. The Attorney General published an Interim Rule extending SORNA

requirements “to all sex offenders, including sex offenders convicted of the offense for

which registration is required prior to enactment of that Act,” on February 28, 2007.

Invoking the “good cause” exception to the Administrative Procedure Act, the Attorney

General declared the Interim Rule effective immediately, and further stated that the

Interim Rule makes it “indisputably clear that SORNA applies to all sex offenders (as the

Act defines that term) regardless of when they were convicted.” Office of Attorney

General; Applicability of Sex Offender Registration and Notification Act, 72 Fed. Reg.

8894, 8896 (Feb. 28, 2007) (codified at 28 C.F.R. pt. 72). As the indictment charges

Brunner with failing to comply with SORNA after its “enactment and the effective date of

the regulations indicating that SORNA applies to all sex offenders,” Guzman, 591 F.3d at

94, the indictment does not violate the Ex Post Facto Clause.

                                     CONCLUSION

       For the reasons given above, the judgment of the district court is affirmed.




                                            10
