United States District Court, W.D. Virginia, Charlottesville Division
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE
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”).
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.
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).
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)).
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
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.
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.
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 that is a specified offense against
a minor.” Id. § 20911(5)(A)(ii).
more. The phrase “specified offense against a
minor” is further defined. It means an offense
“against a minor that involves any of the
(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
(D) Use in a sexual performance.
(E) Solicitation to practice prostitution.