United States v. Pope
2:18-cr-00327
D. Nev.Apr 30, 2019Background
- Defendant Lamont Mars Pope charged under 18 U.S.C. § 2250 for failing to register under SORNA based on a 2003 California conviction (Cal. Penal Code § 288(a)) for lewd or lascivious acts on a child under 14.
- Pope filed two motions to dismiss: (1) constitutional challenge to a SORNA provision and (2) that his California conviction is not a SORNA "sex offense."
- The magistrate judge recommended denial of both motions; Pope did not object to the constitutional ruling but did object to the sex-offense analysis.
- The district court reviewed de novo the sex-offense issue, applying Ninth Circuit precedent that permits a circumstance-specific inquiry into whether conduct satisfies SORNA’s “specified offense against a minor” catchall.
- The government produced the state criminal complaint and abstract of judgment showing Pope pled no contest to allegations that he put his mouth on the victim’s breasts (victim alleged to be under 14); court held a jury could find those facts satisfy the catchall.
- Court denied both motions (constitutional challenge denied without prejudice pending Supreme Court action; motion re sex-offense denied), adopting magistrate judge’s recommendation in part and overruling Pope’s objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the specified-offense "catchall" in SORNA is evaluated categorically or by a circumstance-specific inquiry | Government: Ninth Circuit precedent allows examination of underlying conduct for the specified-offense catchall | Pope: Categorical approach applies; DOJ guidelines (Chevron) support that approach | Held: Circumstance-specific approach applies (Byun governs); court may consider facts of the prior offense |
| Whether DOJ SORNA guidelines are entitled to Chevron deference | Government: Guidelines are not controlling; statutory text & circuit precedent govern | Pope: Guidelines merit Chevron deference and support categorical approach | Held: Chevron deference inapplicable here; courts have found the statutory provision interpretable without agency deference |
| Whether the catchall provision is unconstitutionally vague (Johnson challenge) | Government: Catchall assesses specific conduct and is not void for vagueness | Pope: Analogous to ACCA residual clause (Johnson), catchall is vague | Held: Not vague — distinction from ACCA: catchall evaluates real-world conduct, not an abstract "ordinary-case" risk analysis |
| Whether available evidence suffices at motion-to-dismiss to show prior conviction qualifies as a SORNA sex-offense | Government: State complaint and abstract plausibly show conduct qualifying under catchall; jury must decide at trial | Pope: Government has not proved the underlying conduct; dismissal warranted | Held: At pleading stage, evidence is sufficient that a jury could find the conduct (mouth on victim's breasts, victim a minor) satisfies the catchall; indictment not dismissed |
Key Cases Cited
- United States v. Mi Kyung Byun, 539 F.3d 982 (9th Cir. 2008) (permits circumstance-specific inquiry for SORNA "specified offense against a minor")
- Nijhawan v. Holder, 557 U.S. 29 (2009) (distinguishes when qualifying language requires circumstance-specific approach under INA)
- Johnson v. United States, 135 S. Ct. 2551 (2015) (voided ACCA residual clause; court distinguished its reasoning from SORNA catchall challenges)
- Olivas-Motta v. Holder, 746 F.3d 907 (9th Cir. 2014) (applies categorical approach to "crime involving moral turpitude" analysis)
- United States v. Dodge, 597 F.3d 1347 (11th Cir. 2010) (en banc) (looks beyond statute elements to underlying conduct for SORNA specified-offense analysis)
- United States v. Hill, 820 F.3d 1003 (8th Cir. 2016) (endorses circumstance-specific approach to subsection at issue)
- United States v. Price, 777 F.3d 700 (4th Cir. 2015) (same: structure and language of SORNA support circumstance-specific analysis)
- United States v. Schofield, 802 F.3d 722 (5th Cir. 2015) (addressed SORNA catchall; rejected vagueness challenge)
- Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (panel precedent binding unless effectively overruled)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from facts in categorical-analysis context)