First Sentence under the Adam Walsh Act

For failing to register as required by the Adam Walsh Act, Wilfred Madera was sentenced to a term of probation.  I previously blogged about the judge's denial of the defense motion to dismiss in the case.  This was the account in the Orlando Sentinel of the sentencing of Madera:

With no precedent to rely on, an Orlando federal judge on Wednesday declined to send a New York sex offender to prison under a tough new law that punishes those who fail to register when they move across state lines.

Following through on comments he made at Wilfredo Madera's plea hearing three months ago, Senior U.S. District Judge G. Kendall Sharp sentenced him to four years of probation and fined him $500. At a Jan. 11 hearing before Madera pleaded guilty as part of a deal with prosecutors, Sharp said he was inclined to dismiss the case or give Madera no prison time.

Sharp, at the time, criticized the government's case and told Madera he would throw out the case if the felon registered the next day. But an exasperated prosecutor reminded Sharp that he had "no legal standing" to do that and the judge reversed himself, acknowledging his error. He then called the law "constitutional" as written and denied a defense request to dismiss the case.

Madera, who was arrested in October as part of a nationwide crackdown on sex offenders by the U.S. Marshals Service, was the first person in the nation to be convicted under the Adam Walsh Child Protection Act.

On Wednesday, he became the first to be sentenced under that law.

The statute authorizes up to 10 years imprisonment for a violation of the Act's registration requirements.  So, at first glance, this sentence seems rather light.  However, it is unclear how an appellate court will treat the judge's sentence in this case.  There are no guidelines in place (and if there were, the guidelines would not be mandatory).  There are no prior sentences for the judge to use as a baseline.  Without seeing the sentencing transcript, it seems to me that as long as the judge followed the proper procedures, it will be very hard for a circuit court to find the judge abused his discretion.  It will be interesting to see whether this sentence becomes an outlier over the long run or if probation becomes a de facto reasonable sentence (at least until guidelines are in place).

Comments

[eAdvocate]

Something no one has noticed, in this news report:

"Sex-offender sentence tests Adam Walsh law"

http://www.orlandosentinel.com/news/local/orange/orl-sexoffend2607apr26,0,856845.story?coll=orl-news-headlines-orange

is this comment:
"According to an affidavit by Deputy U.S. Marshal Laura Sofia, Madera and his family moved to West Palm Beach in June and two months later relocated to Orlando."

It is well known that Bush signed the Adam Walsh Act on 7-27-2006.

So, prior to 7-27-2006 there was no FEDERAL LAW prohibiting what Madera did, move from NY to FL.

I do believe that means federal court had no jurisdiction to prosecute him, although state courts did.

The question being, how can a person be convicted of a crime when there was no law making it a crime when the act was done?

See CALDER v. BULL, 3 U.S. 386 (1798), ex post facto prohibitions, prohibits Madera's prosecution ("I will state what laws I consider ex post facto laws, within the words and the intent of the prohibition. 1st. Every law that makes an action , done before the passing of the law, and which was innocent when done, criminal; and punishes such action.")

I have more in my Op-Ed:
http://www.geocities.com/voicism/index.html

Finally, given the USAG's interim rule made the law retroactive, how can an administrative employee override constitutional protections?

[Deuce]

eAdvocate - You need to go read the Adam Walsh Act in full - it answers all your questions.

Regarding your Ex Post Facto complaint - Sex Offender laws are 2-hatted - it's both a civil mechanism and a criminal matter. The U.S. Supreme Court discussed all of this regarding the Ex Post Facto years ago regarding state statutes regarding Sex Offenders and found that it was not violative of the Ex Post Facto clause.

Also - there was a federal law in effect - but it was only a misdemeaner.