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United States v. Lewis

United States Court of Appeals, Tenth Circuit

September 30, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARCUS SABATION LEWIS, Defendant - Appellant

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. 6:12-CR-10180-EFM-1).

John K. Henderson, Jr., Assistant Federal Public Defender, Federal Public Defender's Office, Wichita, Kansas, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), United States Attorney's Office, Topeka, Kansas, for Appellee.

Before TYMKOVICH, BALDOCK, and BACHARACH, Circuit Judges.

OPINION

Page 1087

TYMKOVICH, Circuit Judge.

This venue case requires us to decide whether a convicted sex offender who violates 18 U.S.C. § 2250(a) when he (1) abandons his residence in one state, (2) moves from that state to another, and (3) knowingly fails to update his sex offender registration can be prosecuted in the state from which he departed. In other words, is venue proper in the departure district for the federal crime of knowingly failing to register as a sex offender after traveling in interstate commerce?

We find that it is, and, exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM the district court's decision. Under the relevant statutory provisions and case law, a sex offender may be prosecuted in either the departure district where the offense began or in other districts where the offender was required to update his registration.

I. Background

In 1996, Marcus Lewis pleaded guilty to statutory rape in Missouri and was sentenced to five years of probation. He later

Page 1088

served prison time on account of a probation violation. As a convicted sex offender, Lewis was required by federal law to register his status in his state of residence under the federal Sex Offender Registration and Notification Act (SORNA) and its statutory predecessors. Lewis last registered in Kansas in May 2011, and he has not voluntarily registered in any other state since that time.

Congress enacted SORNA in 2006 to require convicted sex offenders to register where they live, work, or attend school. Any changes in status must be reported to authorities at any new place of residency. In this way, a national database is created and kept current, providing up-to-date information about the location and movement of covered sex offenders.

In August 2011, a sheriff's deputy for Lyon County, Kansas, tried to locate Lewis on a warrant for a probation violation unconnected to his sex offense. Accessing the sex offender registry, the deputy went to Lewis's last known address, but learned that Lewis no longer lived there. Unable to locate Lewis, the deputy turned the matter over to the U.S. Marshals Service. The marshals, relying on information available in their database about Lewis's family members, visited Kansas City, Missouri, in hopes of finding Lewis. The marshals could not physically locate Lewis at the Kansas City address, but did identify a car associated with him.

Almost a year later, on July 25, 2012, Lewis was apprehended in Atlanta, Georgia, on the Lyon County warrant. An Atlanta-based inspector for the marshals interviewed Lewis in the Fulton County jail, where Lewis admitted that he left Kansas because he worried his probation officer would report him for violations. During the interview, he also explained that he had first traveled to Missouri to visit relatives and later took a Greyhound bus to Georgia. When he arrived in Georgia, he stayed in a homeless shelter for six months, but had since become employed and made plans to marry. Finally, Lewis confessed he knew of his obligation to register in Georgia upon changing his residence, but that he resisted doing so for fear of being arrested on his outstanding Kansas warrants.

A federal grand jury in the District of Kansas indicted Lewis for one count of failing to register between August 2011 and July 2012 under 18 U.S.C. § 2250(a). Lewis filed a motion to dismiss for improper venue, claiming that the alleged violation did not occur in Kansas. The district court denied this motion.

After the government declined to agree to a conditional plea, the case proceeded to a stipulated bench trial, and the district court found Lewis guilty of violating § 2250(a). Following the trial, Lewis filed a motion for judgment of acquittal, which raised the improper venue issue and claimed that the evidence of venue was insufficient for conviction. The district court denied this motion and later sentenced Lewis to 24 months in prison.

II. Analysis

Lewis contends venue was improper in Kansas. Along these lines, he argues that SORNA requires him only to register either in Missouri or Georgia because he abandoned his home in Kansas, traveled through Missouri, and established residency in Georgia. According to Lewis, any SORNA violation occurred--and thus could only be prosecuted--in states other than Kansas.

Although venue is ordinarily a fact question, we review de novo a district court's legal finding of sufficient evidence to support a venue determination. United ...


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