United States v. Caraway , 431 F. App'x 49 ( 2011 )

10-3545-cr
United States v. Caraway
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 6th day of September, two thousand eleven.
4
5 PRESENT:
6
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10
11 Circuit Judges.
12 _______________________________________________
13
14 UNITED STATES OF AMERICA,
15
16 Appellee,
17 -v.- No. 10-3545-cr
18
19 NORMAN S. CARAWAY,
20 Defendant-Appellant.
21 _______________________________________________
22 MONICA J. RICHARDS, Assistant United States Attorney, for
23 William J. Hochul, Jr., United States Attorney, Western
24 District of New York, Buffalo, New York, for Appellee.
25
26 LAURIE S. HERSHEY, Manhasset, New York, for Defendant-
27 Appellant.
1
1 UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED
2 that the judgment of the district court be AFFIRMED.
3 Defendant-Appellant Norman S. Caraway appeals from a judgment of the United States
4 District Court for the Western District of New York (Arcara, J.) sentencing him to 46 months’
5 imprisonment for failure to meet the requirements of the Sex Offender Registration and Notification
6 Act (“SORNA”), 42 U.S.C. § 16901 et seq. Caraway was charged in a superseding indictment with,
7 inter alia, one count of traveling in interstate commerce while knowingly failing to register and
8 update a registration as required by SORNA, in violation of 18 U.S.C. § 2250(a). On July 22, 2009,
9 Caraway filed both a counseled and a pro se motion to dismiss the superseding indictment, arguing
10 primarily that SORNA violated the Ex Post Facto Clause, the Tenth Amendment, and the Commerce
11 Clause of the United States Constitution. The district court adopted the Magistrate Judge’s Report
12 and Recommendation (Schroeder, M.J.) recommending that the motions to dismiss be denied.
13 Caraway then pleaded guilty to the failure to register as a sex offender charge pursuant to
14 a plea agreement, dated April 23, 2010, in which he reserved his right to appeal the denial of his
15 pretrial motions to dismiss. The district court accepted the plea agreement and sentenced Caraway
16 on August 5, 2010. Judgment was entered on August 26, 2010. Caraway timely appealed. We
17 assume the parties’ familiarity with the underlying facts and procedural history.
18 * * *
19 We review de novo a district court’s legal conclusions, “including those interpreting and
20 determining the constitutionality of a statute.” United States v. Stewart, 590 F.3d 93, 109 (2d Cir.
21 2009), cert. denied, 130 S. Ct. 1924 (2010). We review arguments or objections not brought to the
2
1 district court’s attention for plain error. See Fed. R. Crim. P. 52(b); Puckett v. United States, 129
2 S. Ct. 1423, 1429 (2009).
3 On appeal, Caraway primarily argues that SORNA was retroactively applied to him in
4 violation of the Ex Post Facto Clause of the Constitution. Caraway’s argument is foreclosed by our
5 decision in United States v. Fuller, 627 F.3d 499 (2d Cir. 2010), where “we h[e]ld that SORNA
6 applied upon its enactment to all sex offenders regardless of when convicted,” id. at 507. Because
7 Caraway’s “travel and failure to register occurred after SORNA’s enactment and [its] effective
8 date . . . there is no ex post facto problem.” Id. at 508 (internal quotation marks and emphasis
9 omitted). Caraway’s argument therefore fails.
10 We have reviewed Caraway’s remaining arguments, including his constitutional challenges
11 to SORNA contained in his supplemental pro se brief, and find them to be without merit under our
12 case law. See United States v. Guzman, 591 F.3d 83, 89-91 (2d Cir. 2010) (holding that SORNA’s
13 registration requirements and criminal enforcement provision are proper under the Commerce
14 Clause); United States v. Venturella, 391 F.3d 120, 133 (2d Cir. 2004); see also Smith v. Doe, 538
15 U.S. 84, 93 (2003). For the foregoing reasons, the judgment of the district court is AFFIRMED.
16 FOR THE COURT:
17 Catherine O’Hagan Wolfe, Clerk
18
3