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United States v. Hester

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Submitted: June 16, 2009

Before: WINTER, CABRANES, and HALL, Circuit Judges.

Defendant-appellant Travis S. Hester (“defendant” or “Hester”) appeals from a September 16, 2008 judgment entered in the United States District Court for the Northern District of New York (Sharpe, J.), convicting him, following a guilty plea, of two counts of traveling in interstate commerce and failing to register or update his sex offender registration in violation of the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), and one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. § 922(a)(6). As part of the plea agreement, Hester expressly agreed to waive his right to appeal his conviction and sentence if he received a sentence of 51 months’ imprisonment or less, but reserved the right to appeal the district court’s February 7, 2008 order denying his motion to dismiss the indictment.*fn1 The district court sentenced Hester principally to a term of 37 months’ imprisonment. On appeal, Hester argues that (1) his prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) violated his right to due process of law under the Fifth Amendment of the U.S. Constitution; (2) 18 U.S.C. § 2250(a) and the registration requirements of SORNA, 42 U.S.C. § 16913(a), violate the Commerce Clause of the U.S. Constitution; and (3) 18 U.S.C. § 2250(a) is unconstitutionally vague. Hester’s due process argument presents a question of first impression for this Court. For the reasons stated below, we conclude, as have all of our sister circuits that have considered the issue, that prosecution for failure to register as a sex offender under 18 U.S.C. § 2250(a) does not violate the right to due process of law. With respect to Hester’s two remaining arguments, we conclude that those were waived pursuant to the plea agreement.

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