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United States v. Mixell

United States District Court, W.D. Virginia, Charlottesville Division

May 10, 2018

United States of America
v.
Christopher James Mixell, Defendant.

          MEMORANDUM OPINION

          NORMAN K. MOON, SENIOR UNITED STATES DISTRICT JUDGE

         In 2010, Christopher Mixell pled guilty to the Oregon crime of encouraging child sexual abuse. Oregon alleged Mixell knowingly possessed “a motion picture of sexually explicit conduct involving a child for the purpose of arousing or satisfying the sexual desires of himself or another, ” and that he knew (but disregarded) the fact that creation of the material “involved child abuse.” As a factual predicate for his plea, Mixell admitted in writing that he “possessed (by computer) a photograph depicting [a] child engaged in [a] sexual act.” The United States now has charged Mixell with failure to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”).

         Mixell filed two motions to dismiss, one on statutory grounds and another on constitutional grounds. This opinion addresses only the statutory motion, which argues that Mixell's Oregon conviction does not meet SORNA's definition of a “sex offender, ” and therefore he was not required to register as such. But Mixell's Oregon conviction does fall within SORNA because it involved “conduct that by its nature is a sex offense against a minor, ” 34 U.S.C. § 20911(7)(I), as well as “criminal sexual conduct involving a minor, ” id. § 20911(7)(H), and the “possession, production or distribution of child pornography, ” id. § 20911(7)(G). Consequently, his argument fails and the statutory motion to dismiss has been denied.

         STANDARD OF REVIEW

         The indictment under consideration states: “That between in or about early 2017 and on or about April 24, 2017, in the Western Judicial District of Virginia and elsewhere, CHRISTOPHER JAMES MIXELL, an individual required to register under the Sex Offender Registration and Notification Act (SORNA), and having traveled in interstate commerce, did knowingly fail to register or update a registration as required by SORNA” in violation of 18 U.S.C. § 2250. (Dkt. 3).

         To prevail on a motion to dismiss the indictment, a defendant must “demonstrate that the allegations therein, even if true, would not state an offense.” United States v. Thomas, 367 F.3d 194, 197 (4th Cir. 2004). Where “there is an infirmity of law in the prosecution, ” the indictment must be dismissed; “a court may not dismiss an indictment, however, on a determination of facts that should have been developed at trial.” United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012). Nonetheless, a “district court may consider a pretrial motion to dismiss an indictment where the government does not dispute the ability of the court to reach the motion and proffers, stipulates, or otherwise does not dispute the pertinent facts.” Engle, 676 F.3d at 416 n.7 (quoting United States v. Weaver, 659 F.3d 353, 356 n.* (4th Cir. 2011)).

         Because the parties' submissions did not address these standards but did reference facts beyond of the indictment-e.g., documents regarding Mixell's state conviction, representations by the Government about the circumstances surrounding his conviction-the Court requested supplemental briefing. (Dkt. 46). Mixell responded that he “does not challenge the sufficiency of the Government's proof, ” and he did not contest the facts advanced by the Government regarding the Oregon conviction, which are relevant only to the statutory motion. (Dkt. 48 at 2). Mixell specifically invited the Court to consider the Government's submissions of the state charging document, his guilty plea, and the judgment. Finding that the parties agree about the facts underpinning this motion, the Court considers the Oregon documents. See Engle, 676 F.3d at 416 n.7

         ANALYSIS

         Mixell believes that he is not a “sex offender” subject to SORNA's registration requirement. Reduced to a sentence, the argument advanced in his moving brief is this: The Oregon conviction is not a sex offense under SORNA because, applying the categorical approach, the Oregon crime he pled to, Or. Rev. Stat. § 163.686, criminalizes more behavior (specifically, depictions of breasts, according to Oregon courts) than child pornography under federal law (which, Mixell claims, is cross-referenced by SORNA). To begin to evaluate this position, one must become familiar with SORNA's detailed text.

         Federal law provides for up to a 10-year sentence for a person who travels in interstate commerce and “knowingly fails to register or update a registration” as otherwise required by SORNA. 18 U.S.C. § 2250(a). The express congressional purpose of SORNA is “to protect the public from sex offenders and offenders against children.” 34 U.S.C. § 20901 (formerly 42 U.S.C. § 16901). A “sex offender” must register in every jurisdiction where he or she resides, is employed, or is a student. Id. § 20913.

         The statutory question here rests upon a set of nested definitions. A “sex offender” is defined as an individual “convicted of a sex offense.” 34 U.S.C. § 20911(1). A “sex offense, ” in turn, includes five definitions. Id. § 20911(5)(A). One of these five options is a “criminal offense[1] that is a specified offense against a minor.” Id. § 20911(5)(A)(ii).

         There's more. The phrase “specified offense against a minor” is further defined. It means an offense “against a minor that involves any of the following”:

(A) An offense (unless committed by a parent or guardian) involving kidnapping.
(B) An offense (unless committed by a parent or guardian) involving false imprisonment.
(C) Solicitation to engage in sexual conduct.
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution. ...

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