Tuesday, May 5, 2009

Eleventh Circuit Agrees to En Banc Review of Panel Decision Relating to Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911

Last week, the Eleventh Circuit vacated its opinion in United States v. Dodge, 554 F.3rd 1357 (11th Cir. 2009) and agreed to hear the issue sitting en banc. The order granting en banc review can be found here. The panel decision, which has now been vacated, held as follows:
After pleading guilty to a violation of 18 U.S.C. § 1470, for transferring obscene material to a minor,1 Matthew Mason Dodge (“Dodge”) appeals from the part of the district court’s judgment that requires him to register as a Tier I Sex Offender under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16911. We reverse. Although Dodge transmitted obscene material to persons he believed to be minors, he did not engage in conduct that constitutes a “sex offense against a minor,” 42 U.S.C. § 16911(7)(I)(emphasis added), as we understand that phrase. Although we do not adopt Dodge’s construction of SORNA, we conclude that we are unable to distinguish Dodge’s behavior from other behavior, involving distributing obscene material, that would support a conviction under 18 U.S.C. § 1470, but would not require Dodge to register as a sex offender. Accordingly, Dodge also cannot be required to register.


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