UNITED STATES of America, Plaintiff-Appellee v. Henry J. BILLIOT, Defendant-Appellant.
No. 14-2724.
United States Court of Appeals, Eighth Circuit.
Submitted: April 17, 2015. Filed: May 12, 2015.
In support of his motion for reconsideration, Martinez emphasized his aunt‘s affidavit, in which she states the gangs “now” single out members of the church youth group because of their refusal to join the gangs. The aunt‘s affidavit, however, also states that when Martinez lived in Guatemala, he “also refused to sell drugs for the MS 13 gang” and that the gangs in Guatemala “are very dangerous criminals that torture and kill innocent people that have refused to sell drugs for them.” The aunt‘s affidavit thus supports the BIA‘s decision because the problem Martinez fears is not a new one—gangs have been threatening and perpetrating violence against those who refuse to join their ranks since Martinez lived in Guatemala. Sadly, such conditions have plagued Guatemala since Martinez left for the United States, and they do not amount to “changed country conditions arising in the country of nationality” for purposes of reopening his removal proceedings.
Additionally, Martinez re-states his argument that Perez‘s death illustrates changed country conditions. He contends that the evidence of Perez‘s death, in combination with the statements in his aunt‘s affidavit, sufficiently tie Perez‘s death to Martinez to demonstrate the harm Martinez would face if he returned to Guatemala. As the BIA recognized in its order denying Martinez‘s motion for reconsideration, Perez‘s death—even if he was killed because he refused to sell drugs for Guatemala gangs—did not establish changed country conditions since Martinez‘s October 2012 hearing. Rather, the arguments made by Martinez regarding Perez‘s death were similar to the arguments Martinez made at that hearing—that gangs were harming those who refused to work for them.
Martinez failed to “specify the errors of law or fact” in the BIA‘s decision affirming the denial of his motion to reopen because of his failure to establish changed country conditions. See
III. Conclusion
For the reasons above, we affirm the BIA‘s decisions on both of Martinez‘s motions.
Justin Eisele, Greenbelt, MD, for Defendant-Appellant.
Kristin Huntington Bryant, AUSA, Little Rock, AR, for Plaintiff-Appellee.
Before WOLLMAN and GRUENDER, Circuit Judges, and GRITZNER,1 District Judge.
GRITZNER, District Judge.
I. Background
The relevant facts are not in dispute. Billiot was convicted in Louisiana state court on three counts of aggravated incest on August 7, 1996, and on one count of aggravated incest on June 4, 1997. The Louisiana state court sentenced Billiot to five years imprisonment for his first conviction and seven concurrent years of im
At the time of Billiot‘s aggravated incest convictions in 1996 and 1997, Louisiana law required convicted sex offenders to register for ten years after release from imprisonment.
Billiot initially complied with the Louisiana laws requiring him to register as a sex offender. In December 2012, Billiot moved to England, Arkansas, to live with his brother. Billiot admits he knew he had a duty to register as a sex offender, but he failed to do so after moving to Arkansas.
On May 9, 2013, the Grand Jury issued a one count indictment charging Billiot with failure to register in violation of SORNA. On November 21, 2013, Billiot pled guilty to the SORNA violation, but during his colloquy with the court, Billiot asserted that upon release from prison in 2000, Louisiana officials told him he had to register for ten years. Billiot added, that only later did an individual working for the Louisiana sex offender registry tell him that he must register for life.
After this discussion with Billiot, the district court expressed concern about whether there was sufficient evidence Billiot was still under a registration burden in Louisiana at the time he moved to Arkansas. The district court directed the parties to clarify Billiot‘s registration obligations and to address whether his current prosecution violated the Ex Post Facto Clause. On January 16, 2014, the district court issued a written order concluding that “[t]he extension of Billiot‘s registration obligation from ten years to life, while he was subject to the original obligation,” did not present a “federal constitutional problem.”
On April 2, 2014, the district court conducted a second change of plea hearing. The district court allowed Billiot to withdraw his November 21, 2013, guilty plea and enter a conditional guilty plea pursuant to a plea agreement that allowed Billiot to appeal the Ex Post Facto issue. The district court explained the elements of
On July 3, 2014, the district court sentenced Billiot to time served4 and five years supervised release that included a special condition requiring Billiot to participate in mental health counseling specializing in sexual offender treatment. At the
II. Discussion
A. Ex Post Facto Challenge
We review challenges to a statute‘s constitutionality de novo. United States v. Anderson, 771 F.3d 1064, 1066 (8th Cir. 2014). Billiot argues the changes in Louisiana law enacted after his 1997 conviction requiring him to register as a sex offender for life violate the Ex Post Facto Clause of the U.S. Constitution. The Government responds that Louisiana‘s sex offender registration laws do not violate the federal Ex Post Facto Clause.
The parties’ positions aside, an Ex Post Facto challenge to Louisiana‘s sex offender registration and notification laws is misplaced in this case. Billiot pled guilty to violating
SORNA, a federal law enacted in 2006, provides in relevant part “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides....”
To the extent Billiot‘s appeal could be considered a challenge to SORNA on Ex Post Facto grounds, circuit precedent directs our conclusion. See United States v. May, 535 F.3d 912, 920 (8th Cir.2008) (rejecting an Ex Post Facto challenge to SORNA explaining “[t]he only punishment that can arise under SORNA comes from a violation of § 2250, which punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA and who fail to register as required by SORNA“), abrogated on other grounds by Reynolds v. United States, — U.S. —, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Waddle, 612 F.3d 1027, 1029-30 (8th Cir.2010) (same). See also United States v. Kebodeaux, — U.S. —, 133 S.Ct. 2496, 2500, 186 L.Ed.2d 540 (2013) (assuming for the purpose of the case that in enacting SORNA, “Congress has complied with the Constitution‘s Ex Post Facto and Due Process Clauses” and noting that Smith v. Doe, 538 U.S. 84, 105-06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), upheld “a similar Alaska statute against ex post facto challenge“).
B. Special Condition of Supervised Release
Our decision in United States v. Andis, 333 F.3d 886, 889 (8th Cir.2003) (en banc), forecloses Billiot‘s challenge to the special conditions of supervised release. In that case, the defendant pled guilty to transporting a minor for illegal sexual activity and entered into a plea agreement waiving “all rights to appeal whatever sentence is imposed.” Id. at 888. Like Billiot, the defendant appealed and argued the “conditions of his supervised release are illegal because they are generic conditions imposed without regard to the specific characteristics of his crime as required by
In dismissing the appeal, we held that the defendant‘s voluntary appeal waiver prevented consideration of whether the district court abused its discretion in imposing special conditions of supervised release. Id. at 893-94 (citing United States v. Sines, 303 F.3d 793, 797-98 (7th Cir. 2002) (holding the defendant‘s special condition of supervised release requiring sex-offender treatment, despite the fact that the defendant‘s present offense was not a sex crime, he had already completed sex offender treatment, and he had no illegal contact with a minor in over ten years, was unreviewable because the defendant waived his appellate rights)).
Billiot signed a plea agreement that allowed Billiot the right to appeal the Ex Post Facto issue but waived all other appeal rights. Billiot does not argue that the plea agreement was unknowing or involuntary or that enforcing it would work a miscarriage of justice. Accordingly, the imposition of the special condition of supervised release requiring sex-offender treatment is unreviewable.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.