Summary
This Fourth Circuit opinion affirms the defendant's conviction for failing to register as a sex offender under SORNA following a remand triggered by the Supreme Court's decision in Loper Bright Enterprises v. Raimondo. Upon reconsideration, the court determined that although Chevron deference no longer applies, the SMART Guidelines' definitions of "resides" and "habitually lives" remain persuasive and properly guided the district court's jury instructions. The court also rejected the defendant's Tenth Amendment challenge and upheld his sentence, including an eight-level enhancement and lifetime supervised release.
Topics
Practice areas
Questions Presented
- Whether the district court correctly instructed the jury on the SORNA terms "resides" and "habitually lives" by relying on the SMART Guidelines after Loper Bright eliminated Chevron deference.
- Whether the rule of lenity required a narrower construction of SORNA's registration provisions.
- Whether SORNA, as applied to Kokinda, violated the Tenth Amendment by conflicting with West Virginia law or commandeering state officials.
- Whether the district court properly imposed an eight-level sentencing enhancement based on Kokinda's commission of a sex offense against a minor and possession of child pornography while in failure-to-register status.
- Whether lifetime supervised release was procedurally and substantively reasonable.
Holdings
- The SMART Guidelines provide a persuasive and accurate construction of SORNA's terms "resides" and "habitually lives," even though they are no longer entitled to Chevron deference. A sex offender may reside in a jurisdiction without a fixed abode when the offender habitually lives there, including by regularly staying or sleeping in identifiable places.
- The rule of lenity does not apply because SORNA's criminal penalty provision and relevant registration provisions do not contain a grievous ambiguity or uncertainty after considering the statutory text, purpose, legislative history, and SMART Guidelines.
- SORNA does not violate the Tenth Amendment as applied to Kokinda by conflicting with West Virginia registration law or commandeering West Virginia officers.
- The district court properly imposed the eight-level enhancement under U.S.S.G. § 2A3.5(b)(1)(C), because the government proved by a preponderance of the evidence that Kokinda committed a qualifying sex offense against a minor while in failure-to-register status and knowingly possessed child pornography.
- The lifetime term of supervised release was procedurally and substantively reasonable.
Key quotations
“While the SMART Guidelines are no longer entitled to Chevron deference, they are nonetheless persuasive, and we conclude that they provide an accurate construction of the law.” (3)
“Because we conclude that the SMART Guidelines provide the proper definition of the term habitually lives, we conclude that the district court’s jury instruction which relied on them was a correct statement of law.” (19)
“Therefore, the district court did not err when it used the SMART Guidelines in fashioning its jury instructions.” (20)
“Therefore, we have no trouble affirming lifetime supervised release in this case.” (26)
Factual background
Kokinda was a convicted sex offender subject to SORNA registration requirements. After leaving Vermont, he remained unregistered while traveling among states and spent most of September 2019 at two campgrounds in West Virginia, making frequent purchases and using aliases. He was arrested after a witness reported that he had touched a preteen girl's buttocks at a park; a search of his phone also revealed child pornography and related search terms. The district court instructed the jury that a person may reside in a jurisdiction without a fixed abode if the person habitually lives there, including for at least 30 days, and imposed an eight-level sentencing enhancement and lifetime supervised release.
Procedural history
A federal grand jury indicted Kokinda under 18 U.S.C. § 2250(a). After a jury convicted him, the district court denied his motion for judgment of acquittal or a new trial and imposed a sentence of 63 months' imprisonment followed by lifetime supervised release. The Fourth Circuit previously affirmed, relying in part on Chevron deference; the Supreme Court vacated that decision and remanded after overruling Chevron in Loper Bright. On reconsideration, the Fourth Circuit again affirmed.