United States v. Picard

995 F.3d 1

• Court: Court of Appeals for the First Circuit
• Decided: April 14, 2021
• Docket: 19-1855P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1855

UNITED STATES OF AMERICA,

Appellee,

v.

ROGER EDWARD PICARD,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before Lynch and Thompson, Circuit Judges.*

William S. Maddox on brief for appellant. Noah Falk, Assistant United States Attorney, and Halsey B. Frank, United States Attorney, on brief for appellee.

April 14, 2021

* While this case was submitted to a panel that included Judge Torruella, he did not participate in the issuance of the panel's judgment. The remaining two panelists therefore issued the judgment pursuant to 28 U.S.C. § 46(d). LYNCH, Circuit Judge. Roger Edward Picard appeals from

an order that revoked his supervised release on the underlying

conviction of failing to register as a sex offender in violation

of federal law. The district court found that Picard, upon his

release following his imprisonment for this underlying conviction,

once more failed to register as a sex offender, which violated the

conditions of his release, as well as state and federal law. The

court sentenced Picard to nine months' imprisonment.

Picard argues on appeal that the district court abused

its discretion in not excusing his failure to register. He also

argues that his within-guidelines sentence was procedurally and

substantively unreasonable. We reject his challenges and affirm.

I.

On January 19, 1983, Picard was convicted in

Massachusetts state court of one count of Rape of a Child under 14

and one count of Indecent Assault and Battery of a Child under 14.

The state court sentenced Picard to concurrent terms of thirteen

to twenty years' imprisonment for the rape offense and eight to

ten years' imprisonment for the indecent assault and battery

offense. Picard was also classified as a lifetime sex offender

registrant in Massachusetts.

Picard was released from prison in 2001 in

Massachusetts. In December 2003, Picard informed the

- 2 - Massachusetts Sex Offender Registry that he planned to move from

Massachusetts to Hawaii. On January 18, 2004, Picard signed a Sex

Offender Registration form in Hawaii. By signing, he acknowledged

that he had been "informed and underst[ood]" that if he moved to

another state, he would need to "register [his] new address with

the designated law enforcement agency in the new state within ten

days of establishing residence."

In 2006, while Picard was in Hawaii, Congress enacted

the Sex Offender Registration and Notification Act ("SORNA"),

which made "knowingly fail[ing] to register or update a

registration as required by [SORNA]" a federal crime for certain

types of sex offenders. 18 U.S.C. § 2250(a). SORNA requires sex

offenders to "register, and keep the registration current, in each

jurisdiction where the offender resides, where the offender is an

employee, and where the offender is a student." 34 U.S.C.

§ 20913(a) (formerly cited as 42 U.S.C. § 16913(a)). Further,

"[a] sex offender shall, not later than 3 business days after each

change of name, residence, employment, or student status, appear

in person in at least 1 jurisdiction involved pursuant to

subsection (a) and inform that jurisdiction of all changes in the

information required for that offender in the sex offender

registry." Id. § 20913(c) (formerly cited as 42 U.S.C.

§ 16913(c)).

- 3 - A. Picard's Underlying Federal Conviction for Failure to Register as a Sex Offender in Maine and His Conditions of Release

In the spring of 2014, Picard moved to Penobscot County

in Maine, where he had purchased property in 2013. He did not

register as a sex offender upon moving there, as he was required

to do by SORNA. On April 2, 2015, Picard received and signed a

notice which again explicitly informed him of his registration

requirements under SORNA. He still did not register then or ever

as a sex offender in Maine.

On March 1, 2018 he was visited by an agent from the

U.S. Marshals Service and arrested. On May 17, 2018, Picard

pleaded guilty to one count of failure to register as a Sex

Offender in violation of 18 U.S.C. § 2250(a). The district court

sentenced Picard to eighteen months' imprisonment followed by five

years of supervised release. His conditions of release stated:

You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work, are a student, or were convicted of a qualifying offense.

[and]

You must not commit another federal, state, or local crime.

On July 1, 2019, while he was still in custody, the

Bureau of Prisons ("BOP") told Picard that he would need to

register as a sex offender within twenty-four hours of being

- 4 - released from prison. On July 12, 2019, the BOP released Picard

to the District of Maine.

B. Violations of Conditions of Release and Revocation

Although Picard lived in Penobscot County, on July 13,

2019, he attempted to register at the Piscataquis County Sheriff's

Department. The sheriff's department could not register him

because he did not live in that county and directed him to go to

the Penobscot County Sheriff's Department. Despite these

instructions, Picard did not go and never registered or even

contacted the Penobscot County Sheriff's Department.

United States Probation officers Maria Schokman and

Kanni Francis visited Picard's home to complete an intake and home

inspection on July 16, 2019. Picard told them he knew he had to

register and had not. He called his offense "bullshit" and stated

that he should not have to register. Although he lived in

Penobscot County, he told the officers he could not afford to

travel to the Penobscot County Sheriff's Department. In response,

the officers told him of a low-or-no-cost transportation service

available to him.

On July 17, 2019, Schokman called the Penobscot County

Sheriff's Department, which told her that Picard had not registered

there or even contacted their office. On July 18, 2019, Schokman

once more contacted the Penobscot County Sheriff's Department,

which again reported that Picard had not registered or contacted

- 5 - the office. On July 18, 2019, the Marshals Service arrested Picard

at his home for violating two conditions of his supervised release:

(1) Failing to "comply with the requirements of [SORNA]" and (2)

"commit[ting] a federal, state, or local crime."

On August 16, 2019, the district court held a revocation

hearing, where Picard was represented by counsel. The court

adopted the factual findings in U.S. Probation's revocation

report.1 The court concluded that Picard's failure to register

was a Grade C violation and the court, without objection, adopted

Probation's Guidelines sentencing range calculation of five to

eleven months' imprisonment. Schokman testified and Picard argued

that the government had not shown a violation because Picard

attempted to register but failed. The district court found that

Picard had violated the conditions of his release. After

considering the Guidelines sentencing range and 18 U.S.C.

§ 3553(a) factors, the court sentenced Picard to nine months'

imprisonment followed by two months' community confinement and

five years' supervised release. The court also stated that it

would have "impose[d] the same sentence even if the applicable

1 Except for paragraph 23, which the court did not adopt as Picard disputed its factual basis. Paragraph 23 described the facts underlying Picard's 1983 conviction for Rape of a Child under 14 and Indecent Assault and Battery of a Child under 14, but did not state from what documents it drew this information.

- 6 - sentencing guideline range would have been reduced by any . . .

objections." This appeal followed.

II.

A. Standard of Review

We review the district court's decision to revoke

supervised release and the sentence it imposes for abuse of

discretion. United States v. Wright, 812 F.3d 27, 30 (1st Cir.

2016). We review the underlying finding of a violation of

supervised release for clear error and legal questions de novo.

Id. "'[W]e consider the evidence in the light most favorable to

the government,' and 'we recognize the district court's broad legal

power to determine witness credibility.'" Id. at 29 (quoting

United States v. Portalla, 985 F.2d 621, 622 (1st Cir. 1993)).

B. The District Court Did Not Abuse its Discretion in Finding that Picard Violated the Terms of His Supervised Release

Picard conceded to the district court that he did not

register as a sex offender within the required time, but argued

that his failure to register should be excused for cause because

he attempted to register at the wrong Sheriff's Department. On

appeal, Picard argues that he did not understand the instructions

to register and so lacked the required mens rea to violate SORNA.

He also argues that he is entitled to the affirmative defense that

he could not register "as directed." We disagree.

- 7 - Any person who must register under SORNA, "travels in

. . . interstate commerce," and "knowingly fails to register or

update a registration as required by [SORNA]" is subject to a fine

and/or imprisonment. 18 U.S.C. § 2250(a). To prove a failure to

register violation of SORNA, the government need only show general

intent. United States v. Thompson, 431 Fed. App'x 2, 3-4 (1st

Cir. 2011) (unpublished) (citing United States v. Stevens, 640

F.3d 48, 51 (1st Cir. 2011) (cert. granted, judgment vacated on

other grounds, 565 U.S. 1255 (2012))). The record before the

district court was more than sufficient to conclude that Picard

knew of his registration requirement. Picard told Probation

Officers Schokman and Francis that he knew he had to register but

was unwilling to do so. Multiple other agencies also informed

Picard of his registration obligation. There was no error in the

district court concluding the general intent mens rea requirement

in SORNA was satisfied.

SORNA also allows for an affirmative defense when

"uncontrollable circumstances prevent[] the individual from

complying," the individual did not contribute to the circumstances

"in reckless disregard of the requirement to comply," and then

"complied as soon as such circumstances ceased to exist." 18

U.S.C. § 2250(c). As our recitation of the facts makes clear,

this affirmative defense was not available to Picard on these

facts.

- 8 - Picard alludes to the affirmative defense by saying that

he could not register "as directed" because he was "bewildered" by

the instructions given to him. He says the instructions were "not

clear." This is inaccurate. The BOP directed Picard "to register

as a sex offender within 24 hours of release, per Maine State

requirements." After failing to register with the proper sheriff's

department per Maine law, Schokman and Francis on July 16, 2019,

directed Picard to register with the Penobscot County Sheriff's

Department and provided him with the Office's contact information.

As of July 18, 2019, Picard had still not registered, or made any

effort to contact either Probation or the Penobscot County

Sheriff's Department to clarify his registration obligations.

C. Picard's Sentence was Procedurally and Substantively Reasonable

Picard next argues that his within-Guidelines sentence

was "both procedurally and substantively unreasonable because the

sentencing court decision lacked adequate explanation and the

length of the sentence was greater than necessary."2 These

arguments are meritless.

A "court, at the time of sentencing, [must] state in

open court the reasons for its imposition of the particular

2 Picard also argues that the district court relied on clearly erroneous facts, and so its sentence was unreasonable. But Picard does not identify which factual findings he contends are erroneous, and so has waived this argument. United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

- 9 - sentence." 18 U.S.C. § 3553(c)(1). "The court's explanation is

adequate for purposes of § 3553(c)(1) if it specifically

identif[ies] some discrete aspect of the defendant's behavior and

link[s] that aspect to the goals of sentencing." United States v.

Rivera-Clemente, 813 F.3d 43, 52 (1st Cir. 2016) (alterations in

original) (internal quotation marks omitted) (quoting United

States v. Rivera–Gonzalez, 626 F.3d 639, 646–47 (1st Cir. 2010)).

"A sentence is substantively reasonable when . . . the sentencing

court [gives] a plausible sentencing rationale and reached a

defensible result." United States v. Abreu-García, 933 F.3d 1, 6

(1st Cir. 2019) (internal quotation marks omitted) (quoting United

States v. Rodríguez-Adorno, 852 F.3d 168, 177 (1st Cir. 2017)).

The district court weighed all of the § 3553(a) factors

and gave a plausible rationale for the sentence it imposed. It

identified Picard's "substantial criminal history" and "proclivity

toward violence" as the main factors behind its sentencing

decision. The district court adopted the government's reasoning

that Picard's history of violence made him a "danger to the

community" and "danger to kids," and his "unwillingness to accept

responsibility" for his failure to register required a sentence

sufficient to protect the community and ensure that Picard learns

and accepts that "registering and complying with the conditions of

release are not suggestions; they are mandatory."

- 10 - The record also plainly contradicts his argument that he

was penalized for exercising his right to a revocation hearing.

Indeed, the record clearly supports the district court's

conclusion that Picard at no point accepted responsibility for not

registering.

III.

The judgment of the district court is affirmed.

- 11 -