United States v. James Edward Dove

343 F. App'x 428
CourtCourt of Appeals for the Eleventh Circuit
DecidedAugust 24, 2009
Docket08-12642
StatusUnpublished
Cited by1 cases

This text of 343 F. App'x 428 (United States v. James Edward Dove) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. James Edward Dove, 343 F. App'x 428 (11th Cir. 2009).

Opinion

PER CURIAM:

James Edward Dove appeals his 58-month sentence and life term of supervised release, imposed after he pled guilty to traveling in interstate commerce with intent to engage in illicit sexual conduct with a person under the age of 18 years, in violation of 18 U.S.C. § 2423(b), (f). Dove engaged in online conversations with an individual he believed to be a 13-year-old girl, and he traveled from South Carolina to Florida to engage in sexual conduct with her. The “girl” actually was an undercover investigator, and Dove was arrested upon his arrival at the agreed-upon location. On appeal, Dove argues the district court abused its discretion by oi'dering him to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) because his offense did not constitute a qualifying sex offense, as no actual minor was involved. Dove next asserts the district court abused its discretion by imposing a life term of supervised release and several conditions of supervised release.

I.

A.

We review for an abuse of discretion the district court’s imposition of a special condition of supervised release. United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003). Plain error review applies, however, when a party fails to object to an error before the district court and raises it for the first time on appeal. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). “Plain error occurs where (1) there is an eiTor; (2) that is plain or obvious; (3) affecting the defendant’s substantial lights in that it was prejudicial and not harmless; and (4) that seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

Once a party properly presents a federal claim before the district court, the party can make any argument in support of that claim on appeal. Yee v. City of Escondido, *431 503 U.S. 519, 112 S.Ct. 1522, 1532, 118 L.Ed.2d 153 (1992). A party is not limited to the precise arguments made below in the district court. Id. When a party raises an objection to the district court, however, he must state the proposition of law in “such clear and simple language that the trial court may not misunderstand it, and if his point is so obscurely hinted at that the trial court quite excusably may fail to grasp it,” the claim is not properly preserved for appellate review. United States v. Zinn, 321 F.3d 1084, 1087-88 (11th Cir. 2003); see also id. at 1090 n. 7 (“It is a defendant’s — or his counsel’s — burden to articulate the specific nature of his objection to a condition of supervised release so that the district court may reasonably have an opportunity to consider it.”).

In this case, although Dove objected to the sex offender registration requirement before the district court, he never contended his offense did not constitute a qualifying offense under SORNA. At his sentencing hearing, Dove instead challenged the constitutionality of SORNA, arguing the statute violated the Commerce Clause, the Due Process Clause, the non-delegation doctrine, the Administrative Procedures Act, and the Tenth Amendment. These constitutional arguments were inadequate to properly apprise the district court of the argument that he now raises before this Court. See id. at 1090 n. 7. Accordingly, Dove has not preserved this argument for appeal, and we review it for plain error only. See Raad, 406 F.3d at 1323.

B.

Dove argues his conviction does not constitute a qualifying sex offense under SORNA because he had contact with only an adult undercover investigator, and no actual minor was involved. Furthermore, he asserts that the plain meaning of SOR-NA’s definition of “minor” cannot be read to include a person above the age of 18 years pretending to be a person under the age of 18 years.

“SORNA was enacted in July 2006 ‘to protect the public from sex offenders and offenders against children ... ’ by establishing ‘a comprehensive national system for the registration of those offenders.’” United States v. Ambert, 561 F.3d 1202, 1205 (11th Cir.2009) (quoting 42 U.S.C. § 16901). Under SORNA, a sex offender must register in each jurisdiction where he resides, is employed, or is a student. 42 U.S.C. § 16913(a). A “sex offender” is defined as a person who has been convicted of a “sex offense.” 42 U.S.C. § 16911(1). SORNA defines “sex offense” to include an offense listed in Chapter 117 of Title 18, which includes § 2423(b), the statute under which Dove was convicted. 42 U.S.C. § 16911(5)(A)(iii). A “minor” is defined as an individual “who has not attained the age of 18 years.” 42 U.S.C. § 16911(14).

Neither the Supreme Court nor this Court has addressed whether a conviction under § 2423(b) involving an undercover agent, rather than an actual minor, constitutes a sex offense requiring registration under SORNA. Given that there is no case law on point, the district court did not plainly err in ordering Dove to register as a sex offender. See United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (stating there can be no plain error when there is no precedent from this Court or the Supreme Court directly resolving an issue).

II.

Dove next argues the life term of supervised release is unreasonable and the district court abused its discretion by ordering as conditions of supervised release that he (1) refrain from possessing or using a *432 computer with Internet service, (2) have no direct contact with minors or enter any area where minors congregate, participate in a mental health treatment program specializing in sex offender treatment, (4) register as a sex offender, and (5) submit to searches for life.

We review the ultimate sentence imposed by a district court for “reasonableness.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (citing Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)).

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Bluebook (online)
343 F. App'x 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-james-edward-dove-ca11-2009.