United States v. Fernandes
2011 U.S. App. LEXIS 4982
| 9th Cir. | 2011Background
- Fernandes pleaded guilty to abusive sexual contact under 18 U.S.C. § 2244(b).
- While employed as a private security guard at Crater Lake National Park, he entered a dorm room with an intoxicated coworker and abused her without permission.
- He unbuttoned her blouse, fondled and kissed her breasts, and touched her vagina over her clothes; activity was stopped when coworkers walked in.
- District court sentenced Fernandes to probation and declined to order sex-offender registration.
- Government appealed asserting mandatory registration under 18 U.S.C. § 3563(a)(8).
- Court reviews sentence legality de novo and held registration mandatory as a probation condition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §3563(a)(8) registration is mandatory or discretionary. | Government contends §3563(a)(8) is mandatory. | Fernandes argues Booker/Kimbrough render it discretionary. | Mandatory; not discretionary. |
| Whether the parsimony principle in §3553(a) overrides §3563(a)(8). | §3553(a) does not override mandatory registration. | §3553(a) should control to favor parsimony. | Parsimony does not negate mandatory registration. |
| Whether §3563(a)(8) violates procedural due process. | Doe forecloses due-process challenge to federal statute. | Raises due-process concerns. | Does not violate due process; Doe controls. |
Key Cases Cited
- United States v. Booker, 543 U.S. 220 (2005) (Guides discretionary sentencing, not fixed penalties but supports congressional control over statutes.)
- Kimbrough v. United States, 552 U.S. 85 (2007) (Affirms congressional control over sentencing statutes despite Booker.)
- Mistretta v. United States, 488 U.S. 361 (1989) (Congress fix(es) sentence; judicial discretion limited by statute.)
- Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003) (Due process analysis of sex-offender registration; guidance for federal statute.)
- United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009) (Doe-like due process treatment of federal registration statute.)
- United States v. George, 625 F.3d 1124 (9th Cir. 2010) (Commerce Clause challenges to SORNA rejected.)