Criminal Practice — Lapsed Registration Violated SORNA

U.S. v. Collins (Lawyers Weekly No. 14-01-1156, 19 pp.) (Floyd, J.) No. 14-4019. Dec. 8, 2014; USDC at Parkersburg, W.Va. (Chambers, J.) 4^th Cir.

Holding: Although defendant claimed a state court judge suggested defendant’s obligation to register as a sex offender had expired, the 4^th Circuit upholds the district court’s conclusion that the state judge was giving advice, not a binding legal opinion, and defendant knowingly avoided his obligation to register.

Both North Carolina and federal law required defendant to register as a sex offender after his 1998 conviction on two counts of taking indecent liberties with a child in North Carolina. He did not re-register in 2002 in Ohio, and a warrant was issued for his arrest. He moved to West Virginia, where he did not re-register and where he remained until 2011. In May 2013, defendant was charged under the Sex Offender Registration and Notification Act.

After convicting defendant under SORNA for knowing failure to register under the Sex Offender Registration and Notification Act, the district court sentenced defendant to 30 months’ imprisonment and 10 years of supervised release.

Even if we accepted defendant’s assertion that the state judge issued a substantive legal ruling as to his registration requirements, we would still affirm. Defendant argues the state judge’s comments show a form of entrapment by estoppel. Defendant here relied on a state official’s interpretation of state law, but was later charged with a violation of federal law. He effectively asks us to extend the reach of entrapment by estoppel to cases with two different sovereigns. We have previously held that entrapment by estoppel occurs only when the same sovereign advises that certain conduct is permissible, but later initiates a prosecution based on that conduct.

U.S. v. Etheridge, 932 F.2d 318 (4^th Cir. 1991), controls the outcome in this case: here, as there, the defendant was convicted for violating federal law despite receiving conflicting advice from a state official about similar state law. We are not free to disregard binding precedent. Even if we were, we would reach the same result. Entrapment by estoppel is a narrow exception to the general principle that ignorance of the law is no excuse, and it would be unwise to extend its application here. We affirm defendant’s conviction.

We also reject defendant’s contention that his 30-month sentence is excessive and should be reduced. The district court’s decision was within the applicable range under the federal sentencing guidelines, was heavily influenced by the 18 U.S.C. § 3553 factors and was thorough.

We find that failing to register as a sex offender under SORNA is not a “sex offense” for the purposes of the guidelines. We must give effect in this direct appeal to the sentencing commission’s clarifying amendment adopting the rule in U.S. v. Gibbs, 578 F.3d 694 (7^th Cir. 2009), on appeal.

This circuit’s practice is to vacate and remand for resentencing when the sentencing commission enacts a clarifying amendment. Defendant should benefit from reconsideration of his term of supervised release in light of the sentencing commission’s recent amendment.

Affirmed in part, vacated and remanded in part.