Wednesday, December 16, 2009


United States v. Hester, No. 08-4665-cr (2d Cir. December 16, 2009) (Winter, Cabranes, Hall CJJ) (per curiam)

After pleading guilty to two sex offenses in New York State, Hester was required to register as a sex offender. He completed his initial registration - which included explicit instructions that Hester update if he moved or changed jobs - and four change of address forms. Then, in April of 2007, he disappeared. Three months later, Hester was arrested on unrelated charges in Florida. He had neither registered as a sex offender there nor updated his New York registration.

Hester pled guilty to violating the Sex Offender Registration Act, “SORNA,” 18 U.S.C. § 2250(a), and was sentenced to 37 months’ imprisonment. On appeal, he raised three unsuccessful challenges to the statute: a due process claim that he had unsuccessfully litigated below and Commerce Clause and vagueness challenges that he had not.

The due process argument had two prongs. First, Hester claimed that he lacked sufficient notice of SORNA’s requirements. But, since Hester was clearly aware of the state-law requirements that he update his New York registration and register in Florida when moved there, there was no due process violation in his not being specifically notified of SORNA. Hester also argued that it was impossible for him to comply with SORNA because neither New York nor Florida had SORNA-compliant registration systems in place. But both jurisdictions had sex offender registries and Hester could have complied with them. That those states had not yet met SORNA’s administrative requirements did not excuse Hester’s failure to register.

Hester’s Commerce Clause and vagueness arguments were waived by his plea agreement, in which he waived his right to appeal his conviction and any sentence of 51 months or less. The waiver had a carve-out for the district court’s decision denying his motion to dismiss, but Hester did not raise those arguments in the motion to dismiss.

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