United States v. Cotonuts

633 F. App'x 501
Court of Appeals for the Tenth Circuit·Decided January 26, 2016·No. 13-1539·Unpublished·Cited by 2 cases

Opinions

ORDER AND JUDGMENT*

JEROME A. HOLMES, Circuit Judge.

Defendant-Appellant Glen Earl Coto-nuts was convicted for failing to register as a sex offender under the Sex Offender Registration and Notification Act (“SOR-NA”). 18 U.S.C. § 2250. Among other things, he was sentenced to a term of supervised release. As a condition of his supervised-release term, Mr. Cotonuts was required to submit to a penile-plethysmo-graph test. Mr. Cotonuts challenges his conviction, claiming that the Attorney General’s authority to apply SORNA retroactively violates the nondelegation doctrine. Mr. Cotonuts also argues that the district court failed to make the particularized findings necessary to impose the plethys-mograph supervised-release condition.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm Mr. Cotonuts’s conviction. Instructed by our decision in United States v. Nichols, 775 F.3d 1225 (10th Cir.2014), cert. granted on other grounds, — U.S. —, 136 S.Ct. 445, 193 L.Ed.2d 346 (2015), we conclude that SORNA provides a sufficiently intelligible principle to guide the Attorney General’s decisionmaking. However, we do not reach the merits of Mr. Cotonuts’s supervised-release challenge. More specifically, we dismiss as moot the sentencing portion of his appeal because Mr. Cotonuts’s challenge to the plethysmograph condition ceased to be a live case or controversy when the district court revoked his original supervised-release term and imposed a new supervised-release order with facially different requirements.

I

Mr. Cotonuts was convicted of abusive sexual contact in 1989 and aggravated sexual abuse of a child in 1993; both offenses involved victims under the age of eight. He was classified as a Tier III sex offender and was required to register as a sex offender for life under SORNA. Mr. Coto-nuts was on supervised release for the 1993 conviction between 2007 and 2011, during which time he met his SORNA registration requirement. However, in 2011, his supervision was revoked because of his alcohol abuse and failure to attend required sex-offender treatment appointments, and he was returned to prison.

[503] Mr. Cotonuts completed his term of imprisonment on June 22, 2012. After being released, he moved to Towaoe, Colorado. While county officials were informed that he would be moving there after leaving prison, Mr. Cotonuts did not register in person, as SORNA requires. On August 15, 2012, a deputy marshal told Mr. Coto-nuts that he was delinquent on his registration, at which point he went to the county sheriffs office and registered. Mr. Cotonuts nevertheless was subsequently charged with one count of failing to register or update his registration as a sex offender, in violation of 18 U.S.C. § 2250.

Mr. Cotonuts initially moved to dismiss the indictment, claiming that the Attorney General’s authority to apply SORNA to his pre-SORNA sex-offense convictions violated the nondelegation doctrine. The district court denied this motion, concluding that the Supreme Court “has found broad policy statements [such as that articulated in SORNA] sufficient to provide an intelligible principle for delegation.” R., Vol. I, at 66 (Order Den. Defi’s Mot. to Dismiss, dated Aug. 22, 2013).

Mr. Cotonuts was ultimately convicted of violating SORNA’s registration requirements. The presentence investigation report (“PSR”) prepared by the United States Probation Office1 recommended that, as part of his supervised release, he complete “an approved program of sex offender evaluation and treatment, which may include polygraph, [penile] plethysmo-graph and Abel examinations, as directed by the probation officer.” R., Vol, II, at 52 (PSR, filed Dec. 5, 2013).2 Mr. Cotonuts objected to the potential use of the pleth-ysmograph, claiming that it implicated a fundamental liberty interest and that the test was ineffective in providing treatment, protecting the public, and deterring sex crimes. The Probation Office justified the recommendation, in part, because the Colorado Sex Offender Management Board (“SOMB”), which regulates and evaluates sex offenders in Colorado, “require[s] treatment agencies to administer plethys-mograph and polygraph examinations”; accordingly, the Probation Office reasoned, Mr. Cotonuts would need to agree to the plethysmograph in order to be accepted into a Colorado sex-offender treatment program. R., Vol. II, at 56.3

At the sentencing hearing, Mr. Cotonuts claimed that plethysmograph examinations were, in fact, not actually required by the SOMB.4 However, as part of its sentence, the district court nevertheless imposed the [504] plethysmograph condition, concluding that “[s]ex offender treatment cannot be accomplished effectively in the District of Colorado without the defendant’s full participation,” which “may involve plethysmo-graph and polygraph examinations pursuant to SOMB requirements.” R., Vol. Ill, at 736-37 (Tr. of Sentencing Hr’g, dated Dec. 16, 2013).

The district court made two further findings to justify the imposition of this condition. First, it noted that the plethys-mograph would be a “crucial resource[]” given the nature of Mr. Cotonuts’s previous sex offenses against young children and the fact that he suffered from alcoholism, which made him “at high risk for sexually re-offending and other crimino-genic behaviors.” Id. at 735-36. The court expressed particular concern that Mr. Cotonuts became “impulsive and unpredictable” when intoxicated due to “his severe alcoholism] and limited support system.” Id. at 736. Second, the court found that the SOMB standards were “based on the best practices known to date for managing and treating sex offenders” and were updated “based ... on current research in the field.” Id. at 734.

Ultimately, the court sentenced Mr.'Co-tonuts to twenty months’ imprisonment and five years of supervised release. He filed this timely appeal.

II

Mr. Cotonuts challenges both the constitutionality of the Attorney General’s authority to make SORNA’s registration requirement retroactively applicable to him, and the condition of his supervised-release term that he should undergo penile-pleth-ysmograph testing.5 We address these challenges in turn.

A

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United States v. Cotonuts, 633 F. App'x 501 (10th Cir. 2016).

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