9th Circuit Issues Opinion Regarding AWA Registration Provisions

I had no idea this case was even on appeal (probably because it was from the District of Guam), but thanks to a helpful reader, I see that the 9th Circuit has issued an opinion concerning the AWA registration requirements (SORNA). The case is US v. Byun and these are some key portions of the opinion:

After Mi Kyung Byun pleaded guilty to a violation of 8 U.S.C. § 1328, “importation into the United States of any alien for the purpose of prostitution,” the district court determined that she had committed a “sex offense” within the meaning of Section 111 of Title I of the Adam Walsh Child Protection and Safety Act of 2006 (“Act” or “Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587, 591 (codified at 42 U.S.C. § 16911), and is therefore subject to the Act’s registration requirements. Byun appeals that determination, maintaining that her offense is not covered by the Act. We conclude that Byun’s offense is a “specified offense against a minor” and therefore a “sex offense” within the meaning of the Act....

Byun was indicted on May 31, 2000 on four counts of alien smuggling, including one count of importing aliens into the United States for purposes of prostitution, in violation of 8 U.S.C. § 1328, and one count of transporting a minor in foreign commerce with the intent that the minor engage in prostitution, in violation of 18 U.S.C. § 2423(a). She ultimately pleaded guilty to three counts of alien smuggling in violation of 8 U.S.C. §§ 1324 and 1328, but did not plead guilty to transporting a minor for purposes of prostitution in violation of 18 U.S.C. § 2423(a)....

In response to the Walsh Act, Byun’s probation officer determined that Byun was a tier II sex offender subject to SORNA’s registration requirements and provided her an “offender notice and acknowledgment of duty to register as a sex offender....”

We assume for purposes of our initial analysis, in Part III.A, that we may consider the fact that Byun’s crime was committed against a minor, even though the age of the victim was not an element of her crime of conviction. Having determined that, assuming the age of Byun’s victim is taken into account, her crime was a sex offense, we then consider in Part III.B whether the statute might instead require a categorical approach to the age of the victim of the crime, and conclude that it does not.

The opinion is very interesting because it mirrors the debate that occurred with the Armed Career Criminal Act (ACCA). In the case of the ACCA, courts initially split on the question of whether the words "violent felony" should be defined using a categorical approach for the underlying crime. That meant courts had to determine if crimes such as drunk driving, escape, and attempted burglary were actually "violent felon[ies]" either on a case-by-case basis or by assuming all crimes within those categories were by their nature "violent felon[ies]."

In the case of the SORNA provisions of the AWA, the 9th Circuit has rejected a categorical approach. This has a couple of important effects. First, a district court must examine the underlying facts of a crime to determine sex offender status instead of merely looking at a list of designated crimes. Second, the non-categorical approach prevents some defendants from pleaing guilty to non-sex-related offenses to avoid "sex offender" designation. It will be interesting to see if other circuits follow the lead of the 9th.

Comments

[George]

Twice the Court mentions it is only deciding interpretations and not constitutional issues not raised. Is that an invitation?

[Daniel]

"Second, the non-categorical approach prevents some defendants from pleaing guilty to non-sex-related offenses to avoid "sex offender" designation. It will be interesting to see if other circuits follow the lead of the 9th."

But where do you draw the line? Is selling beer to a minor now a sexual offense? Or are we back to an 'acquitted conduct' issue? It seems to me that whether an offense falls within the AWA is a issue for the judge and jury alone to decide, not the probation officer.

How is it possible that a probation officer can determine whether someone is a tier one, two, or three level offender when the crime was not a sex crime? This is a very scary precedent.

In the plea agreement, Byun admitted that she “induced” Youn Be Seo, a citizen of Korea, “to come to Guam by offering to employ [her] at the Club . . .intend[ing] that during the course of [her] employment at the Club . . . [she] would engage in sexual contact with the Club’s customers, and perform sexual acts for money,” and acknowledged that “[a]t the time [Byun] solicited Youn Be Seo to
come to Guam, and at all times thereafter, [Byun] knew Seo was seventeen years old.”

There is some pretty heavy editing to get this confession to a child sex crime strung together in the right way. If the statements are separated, they could reinterpreted to mean Byun solicited a 17 year old Korean girl to work at her club. While she was there, she would engage in sexual acts with customers for money. Who knows what the actual transcript says?

In my opinion, this case is a blatant violation of double jeopardy and due process. It seems to me that someone should have to prove in court beyond reasonable doubt the facts of a non-sex crime conviction that makes the crime a registerable offense.

On a side note, I guess if the child victim is an illegal Korean prostitute immigrant it is okay to put her name in a public document.