United States v. Hyman , 665 F. App'x 44 ( 2016 )

15-2875-cr
United States v. Hyman
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.
At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 4th day of November, two thousand sixteen.
PRESENT: PIERRE N. LEVAL,
ROBERT D. SACK,
REENA RAGGI,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v. No. 15-2875-cr
PAUL HYMAN,
Defendant-Appellant.
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APPEARING FOR APPELLANT: NATHANIEL Z. MARMUR, Law Offices of
Nathaniel Z. Marmur, PLLC, New York,
New York.
APPEARING FOR APPELLEE: ALLEN L. BODE, Assistant United States
Attorney (David C. James, Assistant United
States Attorney, on the brief), for Robert L.
Capers, United States Attorney for the Eastern
District of New York, Brooklyn, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Leonard D. Wexler, Judge).
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UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on August 31, 2015, is AFFIRMED, but
REMANDED for the purpose of making a clerical correction to reflect that the defendant
shall comply with the requirements of the Sex Offender Registration and Notification Act
as a condition of supervised release.
Defendant Paul Hyman was convicted after a guilty plea of possession of child
pornography, see 18 U.S.C. § 2252(a)(4)(B), (b)(2), and sentenced to a below-Guidelines
prison term of 24 months, as well as five years of supervised release. Currently
incarcerated on that sentence, and scheduled for release on October 8, 2017, Hyman
challenges (1) the constitutionality, as applied to him, of the registration requirement of
the Sex Offender Registration and Notification Act (“SORNA”), see id. § 2250(a)(2)(A);
42 U.S.C. § 16913(a); and (2) the written judgment’s failure to clarify whether he is
required to register under SORNA or only under state law. We assume the parties’
familiarity with the facts and record of prior proceedings, which we reference only as
necessary to explain our decision to affirm.
1. Constitutional Challenge
Hyman, whose professed intent is to remain solely in New York upon release,
submits that SORNA’s registration requirement exceeds Congress’s authority under
either the Commerce Clause or the Necessary and Proper Clause when applied to
offenders who engage in no interstate travel. See U.S. Const. art. I, § 8, cl. 3; id. art. I,
§ 8, cl. 18. The government raises ripeness and waiver challenges to review. We
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reject the former and need not decide the latter because Hyman fails, in any event, to
demonstrate plain error.
a. Ripeness
The government contends that Hyman’s constitutional challenge is not ripe for
adjudication here because he has not been—and might never be—federally prosecuted
for failing to register despite only intrastate travel. We are not persuaded.
SORNA requires a sex offender initially to register before completing the sentence
of imprisonment. See 42 U.S.C. § 16913(b)(1). This requirement applies to Hyman
even if registration is not formally imposed as a condition of supervised release. Thus,
Hyman suffers a direct and immediate impact from the challenged policy. See United
States v. Johnson, 446 F.3d 272, 279 (2d Cir. 2006). In such circumstances, his policy
challenge is ripe, and he is “not . . . required to await and undergo a criminal prosecution
as the sole means of seeking relief.” Id. (citing Doe v. Bolton, 410 U.S. 179, 188
(1973)); see also Pearson v. Holder, 624 F.3d 682, 684–85 (5th Cir. 2010) (holding
SORNA registration challenge ripe two years prior to inmate’s release).
Hyman’s independent registration obligation under New York law warrants no
different conclusion because (1) the notification and registration requirements of the
statutes are not necessarily coextensive, compare 42 U.S.C. § 16915(b) (providing for
five-year registration reduction of “clean record” maintained for ten years), with N.Y.
Correct. Law § 168–o(2) (permitting offender to petition annually for modification in
level of notification); and (2) in any event, Hyman’s need to obtain additional relief from
compliance under New York law does not deprive him of sufficient interest in
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invalidating the federal requirements, see Bryant v. N.Y. State Educ. Dep’t, 692 F.3d
202, 212 (2d Cir. 2012) (citing Khodara Envtl., Inc. v. Blakey, 376 F.3d 187, 194–96 (3d
Cir. 2004) (Alito, J.)) (recognizing plaintiff’s standing to challenge New York regulation
even if Massachusetts law presents additional impediment).
Accordingly, Hyman’s constitutional challenge is ripe for adjudication.
b. Waiver and Forfeiture
The government argues that Hyman waived his SORNA challenge by including a
registration requirement in a requested lesser sentence, not adopted by the district court.
See generally United States v. Spruill, 808 F.3d 585, 596–97 (2d Cir. 2015) (recognizing
waiver where party “actively solicits or agrees to a course of action that he later claims
was error”). We need not decide if Hyman’s actions constitute waiver because, in any
event, he forfeited a SORNA registration challenge by not raising it in the district court
and cannot demonstrate plain error. See United States v. Marcus, 560 U.S. 258, 262
(2010) (stating that plain error requires (1) error; (2) that is clear or obvious; (3) affecting
defendant’s substantial rights; and (4) seriously impugning fairness, integrity, or public
reputation of judicial proceedings); accord United States v. Rodriguez, 775 F.3d 533, 536
(2d Cir. 2014).
Hyman’s claim that he cannot be charged with forfeiture because the challenged
registration requirement was “first imposed” in the written judgment merits little
discussion. See Appellant’s Reply Br. 15 (“Mr. Hyman cannot be faulted for failing to
lodge a contemporaneous objection for a condition that was not contemporaneously
imposed.”). The argument has no merit because Hyman’s federal registration obligation
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arose from SORNA’s statutory requirements—not the terms of his sentence—and the
record demonstrates that Hyman was aware that his conviction would require registration
pursuant to the statute. Moreover, he signed a plea agreement, which stated that
“defendant has been advised and understands, that under the Sex Offender Registration
and Notification Act, a federal law, [he] must register and keep the registration current,”
and that “failure to comply with these obligations subjects him to prosecution for failure
to register under federal law, 18 U.S.C. § 2250.” Def.’s App’x 18. At his plea
hearing, Hyman and his counsel agreed that “sex offender registration will be required.”
Gov’t App’x 10–11; see also PSR ¶¶ 76–79 (reporting that Hyman was required to
register as sex offender under cited federal law); Def.’s App’x 28 (raising no defense
objection to PSR’s report of registration requirement). This record manifests at least
forfeiture, limiting our review to plain error. See United States v. Dupes, 513 F.3d 338,
343 & n.2 (2d Cir. 2008) (reviewing supervision conditions challenge for plain error
where defendant failed to object to PSR recommendation of those conditions).
c. Plain Error
Hyman fails to show that the challenged registration requirement, as applied to
him, violates clearly established law. Indeed, in United States v. Guzman, 591 F.3d 83
(2d Cir. 2010), this court suggested that, under the Necessary and Proper Clause,
Congress could mandate intrastate registration of sex offenders “to help ensure that states
will more effectively be able to track sex offenders when they do cross state lines,”
thereby affecting interstate commerce, the enumerated power underlying SORNA’s
enactment, id. at 91. Hyman urges that National Federation of Independent Business v.
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Sebelius (“NFIB”), 132 S. Ct. 2566 (2012), casts doubt upon this statement and argues
that we acknowledged such doubts in United States v. Robbins, 729 F.3d 131, 134 n.1
(2d Cir. 2013). The argument fails because NFIB did not address Congress’s enactment
of SORNA, much less speak clearly to its exercise of Commerce Clause power in
enacting that statute generally or in imposing registration requirements in particular.
See United States v. Irving, 554 F.3d 64, 78 (2d Cir. 2009) (reversal based upon plain
error requires showing that ruling was “contrary to law that was clearly established by the
time of the appeal”). As for United States v. Robbins, we there observed that “NFIB
may not say anything binding about the Commerce Clause at all” because Chief Justice
Roberts’s analysis of that provision was not joined by any other justice. 729 F.3d at
135. Moreover, those of our sister courts to have considered post-NFIB challenges to
SORNA have uniformly upheld its registration requirements even for a defendant who
only travels intrastate. See United States v. Thompson, 811 F.3d 717, 723–25 (5th Cir.
2016), cert. denied, 136 S. Ct. 2398 (2016); United States v. Brune, 767 F.3d 1009,
1015–17 (10th Cir. 2014), cert. denied, 135 S. Ct. 1469 (2015). In these circumstances,
we can hardly identify error so “egregious and obvious” as to make the government and
the experienced trial judge derelict in permitting it. United States v. Whab, 355 F.3d
155, 158 (2d Cir. 2004) (internal quotation marks omitted).
Nor is a different conclusion warranted by Chief Justice Roberts’s observations as
to the limits of Congress’s power in his concurring opinion in United States v.
Kebodeaux, 133 S. Ct. 2496 (2013), because no other justice joined the opinion, nor was
it necessary to form a majority. See United States v. Thompson, 811 F.3d at 724–26
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(rejecting SORNA challenge based on Kebodeaux concurrence). Indeed, the
five-justice majority opinion in Kebodeaux reinforces our conclusion that this case
presents no plain error insofar as the Supreme Court there rejected an as-applied
challenge by a serviceman convicted of a sex offense under the Uniform Code of Military
Justice who only traveled intrastate at the time he was prosecuted for failing to comply
with SORNA’s registration requirement. See United States v. Kebodeaux, 133 S. Ct. at
2500, 2503–05 (concluding that SORNA fell within scope of Congress’s combined
authority under Military Regulation and Necessary and Proper Clauses). Thus,
Kebodeaux established no well-settled legal principle relevant to this appeal, see United
States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003), much less binding authority, see
United States v. Bastian, 770 F.3d 212, 220 (2d Cir. 2014), that would admit a plain error
conclusion here. See United States v. Wagner-Dano, 679 F.3d 83, 94 (2d Cir. 2012)
(“‘The burden of establishing entitlement to relief for plain error is on the defendant
claiming it.’” (alterations omitted) (quoting United States v. Dominguez Benitez, 542
U.S. 74, 82 (2004))).
Accordingly, we reject Hyman’s SORNA challenge to the registration condition of
his supervision.
2. Clarifying Judgment
Hyman asks that we remand this case for clarification of the written judgment’s
statement that, as a condition of supervision, he “shall comply with the sex offender
registration requirements mandated by law.” Def.’s App’x 55. Hyman argues that the
statement fails to indicate whether he is required to register under SORNA or only under
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New York state law. Hyman does not dispute that SORNA, by its own terms, mandates
registration in this case. See Appellant’s Br. 6 (“A violation of 18 U.S.C. § 2252 (the
conviction here) subjects a defendant to the registration requirement.” (citing 42 U.S.C.
§ 16911)); see also 18 U.S.C. § 3583(d) (“The court shall order, as an explicit condition
of supervised release for a person required to register under the Sex Offender
Registration and Notification Act, that the person comply with the requirements of that
Act.” (emphasis added)). Nor is there any question that Hyman was provided sufficient
notice—by means of his plea agreement and the PSR—that SORNA registration was a
required condition of his supervised release. Accordingly, and because the government
concedes that the judgment should clearly reflect that Hyman is required to register
pursuant to SORNA, we remand the case for the limited purpose of amending the
judgment to reflect that Hyman is required to register under SORNA as well as under any
applicable state laws.
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3. Conclusion
We have considered Hyman’s remaining arguments and conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED, but the
case is REMANDED for the sole purpose of having the district court amend the judgment
to state that Hyman is required to comply with SORNA’s registration requirement as a
condition of supervised release, and to clarify whether state-law registration requirements
are also a condition of supervised release.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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