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United States v. Mixell

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

May 29, 2018

United States of America
v.
Christopher James Mixell, Defendant

          ORDER MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         Defendant Christopher Mixell moved to dismiss the indictment against him for failing to register as required by the Sex Offender Registration and Notification Act (SORNA). The Court recently entered an opinion explaining the denial of his statutory motion to dismiss. (Dkt. 55). This opinion addresses his constitutional motion to dismiss, which argues that Mixell's asserted homelessness turns SORNA's registration requirement into unconstitutional cruel and unusual punishment, as well as a violation of substantive due process.

         A short procedural prologue is necessary. The Court previously denied the constitutional motion, with an opinion to follow. (Dkt. 50). In the interim, however, the Court became concerned that it could not decide the motion on the present record. Specifically, the asserted fact of Mixell's homelessness-which serves as the catalyst for his constitutional arguments- was one outside the indictment and had not been stipulated to by the Government. A decision based on such extrinsic facts, which should be developed at trial, is typically improper. See United States v. Engle, 676 F.3d 405, 415 (4th Cir. 2012); see generally United States v. Hill, 700 Fed.Appx. 235 (4th Cir. 2017); United States v. Turner, 842 F.3d 602 (8th Cir. 2016); United States v. Pope, 613 F.3d 1255 (10th Cir. 2010). Nevertheless, because 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, the Court ordered the parties to discuss whether they could agree to a stipulation of facts relevant to the determination of the motion. They have now done so, dkt. 57, and thus the Court may reach the merits of the motion.

         The indictment in this case was filed on December 13, 2017. It alleges that “between in or about early 2017 and on or about April 24, 2017, ” in the Western District of Virginia, Mixell failed to register or update his registration as required by SORNA. According to parties' Joint Stipulation (JS), Mixell moved to the Western District from New Mexico in late 2016 or early 2017. (JS ¶ 1). He was arrested on April 24, 2017 for failure to register in Albemarle County, Virginia. (JS ¶ 2). At that time, he lived at a property where he provided handyman services in exchange for lodging at first in a trailer on the property, and later in a room at, the property. (Id.)

         Mixell was then arrested on December 15, 2017, on the federal charge underlying this case. (JS ¶ 3). At that time, he lived in Charlottesville at a motel, paying week-to-week for his room. (Id.) He has lived there continuously during the pendency of this case. (Id.). According to the Joint Stipulation, “[d]uring 2017, although Mr. Mixell physically resided at the Red Carpet Inn since some point in 2017, he maintained his mailing address at the Haven at First and Market, 112 Market St., Charlottesville, VA 22902, a multi-resource day shelter for people facing homelessness.” (JS ¶ 4). The Joint Stipulation also generally states that “Mixell has been transient, living in many different states, having many different addresses, and having also been homeless for periods of time, ” and that “Mixell has frequently resided with his girlfriend who owns a vehicle.” (JS ¶¶ 5-6). The Joint Stipulation does not specify whether or which of these statements apply to Mixell from the period of “early 2017” through “about April 24, 2017, ” which is the period implicated on the face of the indictment.

         The Court concludes that these stipulations do not support the conclusion that Mixell was homeless to the extent that his constitutional arguments would have any force. The relevant period for this case is early 2017, running through approximately April 24, 2017. It is during that time that the indictment charges Mixell with failing to register. Mixell does not assert a general constitutional immunity against SORNA's registration requirement. Instead, only by virtue of his asserted homelessness does the Constitution come into play. Put differently, if there was a meaningful portion of time within the indictment period during which Mixell was not homeless, the Constitution would not excuse his failure to register. That is so here.

         While the parties agree Mixell has “been homeless for periods of time, ” (JS ¶ 5), the facts before the Court do not establish that he was homeless for the entirety of the indictment period. The stipulations are indeed to the contrary. The parties agree that Mixell moved to the Western District before or during the indictment period. They agree that, by April 24, he had obtained employment as a handyman on property in Albemarle County. They also agree that, by April 24, he had resided on that property. He did so first in a trailer on the property. He then later procured a room on the same property. Under these circumstances, the Court cannot conclude that Mixell, during the indictment period, was “[s]omeone who ha[d] no accommodation that he . . . is entitled to occupy or that it would be reasonable to occupy[.]” Black's Law Dictionary (10th ed. 2014) (defining “homeless person”). Intermittent homelessness is not a trump card against SORNA's registration requirement.

         Yet even if the stipulations evinced Mixell's homelessness, his constitutional arguments would fail. Mixell's as-applied challenge first rests on the Eighth Amendment's prohibition of cruel and unusual punishment. He asserts that the “consequences of requiring someone who is chronically homeless or nearly homeless, such as [himself], to register as a sex offender as required under SORNA rises to the level of punishment.” (Dkt. 42 at 2). The Court is not persuaded.

         There is a two-step test to determine whether a law is punitive in nature. “If the intention of the legislature was to impose punishment, that ends the inquiry. If, however, the intention was to enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is ‘so punitive either in purpose or effect as to negate [the State's] intention' to deem it ‘civil.'” Smith v. Doe, 538 U.S. 84, 92 (2003) (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)). Mixell concedes that SORNA has a proper civil purpose-to protect the public from sex offenders and offenders against children. (Dkt. 42 at 3). He thus argues that “SORNA has a punitive effect as applied to transient offenders” to such an extent that the nonpunitive purpose of the statute is overwhelmed. (Id.).

         “Because we ordinarily defer to the legislature's stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.” Smith, 538 U.S. at 92 (emphasis added). The Supreme Court has set out seven, non-exhaustive, non-dispositive factors as “useful guideposts” for this inquiry. United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013) (rejecting as-applied Eighth Amendment challenge to SORNA). They are:

(1) Whether the sanction involves an affirmative disability or restraint;
(2) whether it has historically been regarded as a punishment;
(3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of ...

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