United States v. Nobryan McGee
559 F. App'x 323
| 5th Cir. | 2014Background
- Defendant Nobryan McGee pleaded guilty to one count of failing to register as a sex offender under SORNA, 18 U.S.C. § 2250(a).
- McGee has an extensive juvenile and adult sexual-offense history (including multiple rapes of younger siblings and repeated failures to register) and prior incarceration with disciplinary infractions; the PSR documented a pattern of reoffending after release.
- The Guidelines range was 18–24 months, but the district court characterized McGee as a “predator,” found a high risk of recidivism, and imposed an upward variance to 84 months imprisonment and lifetime supervised release.
- Special conditions of supervised release prohibited possession/receipt/viewing of “sexually arousing material” and required installation of filtering software on any computer used by McGee.
- McGee appealed, arguing (1) the 84‑month sentence is substantively unreasonable, (2) the special conditions were not reasonably related to supervised release goals, and (3) SORNA’s retroactivity determination by the Attorney General violates the non‑delegation doctrine.
- The Fifth Circuit affirmed the sentence, upheld the challenged supervised‑release conditions as reasonably related to § 3553(a) goals, and rejected the non‑delegation challenge as foreclosed by circuit precedent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Substantive reasonableness of 84‑month upward variance | District court reasonably balanced § 3553(a) factors and deference to sentencing judge | McGee: variance is excessive; facts do not justify 84 months given Guidelines and no sex convictions since age 16 | Affirmed: variance reasonable based on McGee’s history, risk of recidivism, and PSR reliability |
| Validity of supervised‑release conditions banning "sexually arousing material" and requiring filters | Conditions serve § 3553(a) goals (protect public, prevent recidivism) given defendant’s sexual history | McGee: no record evidence that such material or Internet use was linked to his past offenses; condition unrelated and overbroad | Affirmed: conditions are precautionary, reasonably related to supervised‑release objectives given defendant’s disturbing sexual history |
| Non‑delegation challenge to SORNA retroactivity (AG determination) | McGee: Congress improperly delegated authority to Attorney General to decide SORNA retroactivity | Govt: Fifth Circuit precedent upholds delegation as constitutional | Denied: claim foreclosed by Fifth Circuit precedent (Whaley, Johnson) despite Reynolds; appeal preserved only for further review |
| Reliance on PSR at sentencing | District court may rely on PSR absent rebuttal; defendant objected generally but did not rebut specifics | McGee: PSR unreliable or insufficient to justify variance | Affirmed: McGee waived detailed objection and PSR bore sufficient indicia of reliability |
Key Cases Cited
- United States v. Whaley, 577 F.3d 254 (5th Cir. 2009) (upholding AG’s role in SORNA retroactivity; forecloses non‑delegation challenge)
- United States v. Booker, 543 U.S. 220 (2005) (rendered Guidelines advisory; reasonableness review standard)
- Gall v. United States, 552 U.S. 38 (2007) (framework for procedural and substantive reasonableness review)
- United States v. Zuniga, 720 F.3d 587 (5th Cir. 2013) (PSR reliability and district court reliance at sentencing)
- United States v. Brantley, 537 F.3d 347 (5th Cir. 2008) (upholding significant upward variances based on sentencing factors)