     10-3043-cr
     United States v. Cruz

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 14th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JON O. NEWMAN,
 9                GERARD E. LYNCH,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       UNITED STATES OF AMERICA,
14                Appellee,
15
16                    -v.-                                               10-3043-cr
17
18       RENE SOLIS CRUZ,
19                Defendant-Appellant.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        James P. Egan, Federal Public
23                                             Defender (Lisa Peebles, on the
24                                             brief).
25
26       FOR APPELLEE:                         Brenda K. Sannes, for Richard S.
27                                             Hartunian, United States
28                                             Attorneys Office for the
29                                             Northern District of New York,
30                                             New York, New York (Tamara B.
31                                             Thomson, on the brief).

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1        Appeal from a judgment of the United States District

2    Court for the Northern District of New York (Suddaby, J.).

3

4        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5    AND DECREED that the judgment of the District Court be

6    AFFIRMED.

7

8        Rene Solis Cruz appeals from a judgment convicting him

9    of failing to register or update his registration as a sex

10   offender in violation of 18 U.S.C. § 2250, as required by

11   the Sex Offender Registration and Notification Act

12   (“SORNA”), 42 U.S.C. §§ 16901, et seq.       Cruz challenges (1)

13   the District Court decision denying his motion to dismiss

14   the indictment, (2) his conviction, and (3) his sentence.

15       We assume the parties’ familiarity with the underlying

16   facts, the procedural history, and the issues presented for

17   review.

18   [1] Cruz moved to dismiss the indictment on the ground that

19   SORNA exceeds Congress’s authority under the Commerce

20   Clause, violates the Non-Delegation Doctrine, and cannot be

21   applied against him because SORNA has not been implemented

22   by Pennsylvania and New York.       Cruz concedes that each of


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1    these arguments is foreclosed by this Court’s precedents in

2    United States v. Fuller, 627 F.3d 499 (2d Cir. 2010); United

3    States v. Van Buren, 599 F.3d 170 (2d Cir. 2010); United

4    States v. Guzman, 591 F.3d 83 (2d Cir. 2010); and United

5    States v. Hester, 589 F.3d 86 (2d Cir. 2009) (per curiam).

6    See Cruz Reply Br. at 1 n.1.

7        Cruz argues that SORNA violates the Commerce Clause as

8    applied to him because there was an insufficient connection

9    between his interstate travel and his failure to register.

10   Cruz was obligated to register, traveled interstate, and

11   thereafter failed to register.     A sufficient connection was

12   established (if further connection was required) by Cruz’s

13   statement to a parole officer that he left New York because

14   he did not want to be on parole there and had failed to

15   provide a change of address to avoid being found by the

16   authorities.

17   [2] Cruz also challenges the sufficiency of the evidence.

18   On appeal following a bench trial, we review sufficiency

19   using the “same deferential standard” used when examining a

20   jury’s verdict: could “‘any rational trier of fact . . .

21   [find] the essential elements of the crime beyond a

22   reasonable doubt.’”   United States v. Mazza-Alaluf, 621 F.3d


                                    3
1    205, 209 (2d Cir.), cert. denied, 131 S. Ct. 583 (2010)

2    (quoting United States v. Aguilar, 585 F.3d 652, 656 (2d

3    Cir. 2009)).   We “will set aside a district court’s findings

4    of fact [after a bench trial] only if they are clearly

5    erroneous.”    United States v. Coppola, 85 F.3d 1015, 1019

6    (2d Cir. 1996).

7        Cruz concedes that his first argument -- that he had no

8    obligation to update his registration when he left the

9    shelter because he had not yet established a new residence -

10   - is foreclosed by Van Buren, 599 F.3d at 175.   See Cruz’s

11   Reply Br. at 1 n.1.   When Cruz left the shelter, he

12   terminated his residence there, which constituted a change

13   of address under SORNA, requiring an updated registration

14   within three business days.   42 U.S.C. § 16913(c); Van

15   Buren, 599 F.3d at 175.

16       Second, Cruz argues that insufficient evidence was

17   presented to establish that he was made aware of his

18   registration obligations under SORNA.   “[I]gnorance of the

19   law is not [generally] a valid defense to a criminal

20   prosecution,” Hester, 589 F.3d at 91, and Cruz cannot avail

21   himself of the narrow exception to that general rule

22   regarding criminal prosecutions predicated on notice or on



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1    registration, because he had notice of his obligation to

2    register with the state, id.; see also Fuller, 627 F.3d at

3    507-08.   In any event, Cruz was informed of his federal

4    registration obligations on at least one occasion, and he

5    conceded (after he was captured) that he knowingly failed to

6    register in Pennsylvania because he did not want to get

7    caught.   See 18 U.S.C. § 2250(a)(3); Fuller, 627 F.3d at

8    507-08; accord Hester, 589 F.3d at 91-92.

9    [3] Cruz contends that the District Court should have

10   granted him a reduction in sentence because, as he sees it,

11   he accepted responsibility for his offense.   See U.S.S.G. §

12   3E1.1, Application Note 2 (“[i]n rare situations,” a

13   defendant can proceed to trial and be convicted and still be

14   eligible for an acceptance-of-responsibility reduction if,

15   “for example, . . . a defendant goes to trial to assert and

16   preserve issues that do not relate to factual guilt (e.g.,

17   to make a constitutional challenge to the statute or a

18   challenge to the applicability of a statute to his

19   conduct)”).   The District Court’s refusal of a two-level

20   reduction for acceptance of responsibility “‘should not be

21   disturbed unless it is ‘without foundation.’”   United States




                                   5
1    v. Taylor, 475 F.3d 65, 68 (2d Cir. 2007) (quoting United

2    States v. Harris, 13 F.3d 555, 557 (2d Cir. 1994)).

3        Cruz cannot sustain his burden of demonstrating that

4    this is one of the rare situations where he is qualified for

5    an adjustment in sentence due to acceptance of

6    responsibility even though he proceeded to trial.   See

7    United States v. Smith, 174 F.3d 52, 55 (2d Cir. 1999).

8    Even on appeal, Cruz continues to maintain that there was

9    insufficient evidence to support his guilt.   See United

10   States v. Paredes-Batista, 140 F.3d 367, 381 (2d Cir. 1998).

11   Plus, if Cruz sought only to preserve his constitutional

12   challenges to SORNA (as he says), he could have

13   conditionally pleaded guilty and preserved those challenges.

14   See, e.g., United States v. Brewer, 628 F.3d 975 (8th Cir.

15   2010).   That Cruz expressed remorse and responsibility

16   during sentencing -- after putting the government to its

17   burden of proof during trial -- does not compel the

18   conclusion that he accepted responsibility, see U.S.S.G. §

19   3E1.1, Application Note 2, especially in light of his

20   statement after capture that he failed to register after

21   leaving the state to avoid being caught by the authorities.




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1       Finding no merit in Cruz’s remaining arguments, we

2   hereby AFFIRM the judgment of the District Court.

3

4                              FOR THE COURT:
5                              Catherine O’Hagan Wolfe, Clerk
6
7




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