United States v. Alexander
2015 U.S. App. LEXIS 16748
| 10th Cir. | 2015Background
- Defendant Albert Alexander pleaded guilty in 2012 to violating Cal. Penal Code § 266c (inducing sexual conduct by misrepresentation creating fear) and registered in California but moved to Oklahoma without updating SORNA registration.
- He was indicted under 18 U.S.C. § 2250 for failure to register under SORNA; he conditionally pleaded guilty to preserve appeal of two issues.
- Sentencing under the Guidelines depends on the offender’s SORNA "tier"; tier III applies if the predicate offense is comparable to or more severe than 18 U.S.C. §§ 2241 or 2242.
- Alexander moved to dismiss, arguing his § 266c conviction involved "consensual sexual conduct" (excepted from SORNA) and that § 266c is not comparable to §§ 2241/2242 for tier III classification.
- The district court denied the motion; the Tenth Circuit affirmed, holding § 266c is comparable to §§ 2241/2242 for tier III and that consent induced by fear/deception is not "consensual sexual conduct" under SORNA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 266c is comparable to or more severe than 18 U.S.C. § 2241/§ 2242 for tier III classification | § 266c requires misrepresentation that induces fear and thus can be equivalent to federal fear-based sexual-abuse statutes | § 266c sweeps more broadly than §§ 2241/2242 and may criminalize consensual sex induced by fraud, so it should not qualify for tier III | Affirmed: § 266c is comparable to § 2242 and to § 2241 (court rejects defendant’s challenges; some arguments reviewed for plain error) |
| Whether sexual conduct induced by fraud/misrepresentation is "consensual sexual conduct" under SORNA § 16911(5)(C) (an exception to "sex offense") | Consent induced by fraud is still "consent" under some state law precedents (e.g., Boro) and therefore should be excluded from SORNA | Federal SORNA standard governs; consent induced by fear/deception is not "consensual sexual conduct" for SORNA purposes because SORNA targets predators who use fear to obtain sex | Held: Not consensual under SORNA; § 266c convictions are sex offenses requiring registration |
| Whether the definition of "placing in fear" in §§ 2241/2242 excludes fear induced by deception | — | Defendant contended federal statutes require direct threats/actions, not deception | Rejected (forfeited below; reviewed for plain error); fear may be induced by deception and still satisfy §§ 2241/2242 |
| Whether rule of lenity requires construing § 16911(5)(C) in defendant's favor | — | Defendant urged lenity because statute does not explicitly address consent induced by deception | Rejected: statutory text, structure, purpose, and Model Penal Code guidance resolve meaning; no grievous ambiguity |
Key Cases Cited
- United States v. White, 782 F.3d 1118 (10th Cir. 2015) (upholding SORNA constitutional challenges and guiding SORNA interpretation)
- United States v. Castleman, 134 S. Ct. 1405 (2014) (rule of lenity applies only if grievous statutory ambiguity remains)
- Johnson v. United States, 559 U.S. 133 (2010) (federal law, not state law, controls meaning of terms in federal statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (use of contemporary and Model Penal Code meanings when interpreting federal criminal statutes)
- Scheidler v. Natl Org. for Women, Inc., 537 U.S. 393 (2003) (reliance on Model Penal Code and contemporary statutes in interpreting federal law)
- United States v. Cabrera-Gutierrez, 756 F.3d 1125 (9th Cir. 2014) (discussed but distinguished by the court on comparability grounds)