United States v. Cabrera-Gutierrez
756 F.3d 1125
| 9th Cir. | 2013Background
- Cabrera-Gutierrez was convicted in Oregon in 1998 of second-degree sexual abuse and ordered to register as a sex offender.
- He traveled interstate, was arrested in 2012 for failing to register under SORNA, and was prosecuted under 18 U.S.C. § 2250.
- District court treated Cabrera as a Tier III offender based on his prior conviction and the interstate travel conduct.
- Cabrera challenged SORNA as unconstitutional under the Commerce Clause and contested the Tier III designation as based on a broader state offense than the federal sexual abuse statute.
- Descamps v. United States (2013) later altered the use of the modified categorical approach for divisible statutes in sentencing predicates.
- The en banc panel granted panel rehearing; the case is remanded for resentencing consistent with the opinion, affirming conviction but vacating sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORNA is constitutional under the Commerce Clause | Cabrera contends Congress lacks Commerce Clause authority to require registration. | gov't argues broad Commerce Clause authority supports SORNA. | SORNA constitutional under Commerce Clause. |
| Whether Cabrera's Oregon conviction can predicate Tier III status under 42 U.S.C. § 16911(4) | conviction not comparable to or more severe than federal sexual abuse; not a valid predicate. | conviction should count as Tier III given comparable risk and penalties. | The state conviction is overbroad and cannot serve as a Tier III predicate under Descamps. |
| Whether the district court may apply the modified categorical approach after Descamps | modified categorical approach valid to identify the offense of conviction. | Descamps forecloses modified categorical approach for indivisible state statutes. | Descamps forecloses using the modified categorical approach here; cannot identify the specific offense from the conviction. |
| Whether Or. Rev. Stat. § 163.425 is divisible for Descamps purposes | statute divides into multiple offenses via different modes of consent/incapacity. | statute divisible; supports Tier III predicate using plea admissions. | Or. Rev. Stat. § 163.425 is not divisible; modified approach not applicable. |
| If error occurred, whether it was harmless and whether remand is needed | error in predicate determination undermines Tier III sentence; remand appropriate. | harmless error or proper outcome under applicable standards. | Government has not shown harmlessness; remand for resentencing consistent with holding. |
Key Cases Cited
- United States v. Lopez, 514 U.S. 549 (1995) (establishes broad Commerce Clause authority categories)
- United States v. George, 625 F.3d 1124 (9th Cir. 2010) (upheld SORNA authority; vacated on other grounds)
- Carr v. United States, 560 U.S. 438 (2010) (SORNA linkage and the regulatory scheme extents)
- Reynolds v. United States, 132 S. Ct. 975 (2012) (affirmed but limited SORNA implications)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits modified categorical approach to divisible statutes)
- Taylor v. United States, 495 U.S. 575 (1990) (elements vs. facts in predicate offenses framework)
- Nijhawan v. Holder, 557 U.S. 29 (2009) (concept of divisible statute and multiple offenses)
- Beltran-Munguia, 489 F.3d 1042 (9th Cir. 2007) (divisibility and incapacity concepts in Oregon statutes)
- Acosta-Chavez, 727 F.3d 903 (9th Cir. 2013) (federal age definition vs. state age definitions in predicate analysis)
- U.S. v. Swank, 676 F.3d 919 (9th Cir. 2012) (standard of review for Guideline application)
- Ofodrinwa, 300 P.3d 154 (Oregon Supreme Court 2013) (divisible interpretation of 'does not consent' in Oregon statute)
- Guzman, 591 F.3d 83 (2d Cir. 2010) (SORNA enforcement power and related circuit views)
- United States v. Kebodeaux, 133 S.Ct. 2496 (2013) (Necessary and Proper Clause authority for SORNA)