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Northwest Sex Offender Faces Resentencing

(CN) - A challenge to federal sex-offender registration requirements based on the Supreme Court's support of the new health care reform law failed to convince the 9th Circuit.

Pedro Cabrera-Gutierrez, who spent three years in prison for having sex with an intoxicated 15-year-old in 1998, had argued that Congress lacked the power to force him register as a sex offender across state lines because it was an "unconstitutional regulation of his inactivity" under the high court's ruling in National Federation of Independent Business v. Sebelius, the 2012 decision that found key provisions of Obamacare constitutional.

More than a decade after he served his original sentence, police in Yakima, Wash., charged Cabrera with failing to register under the Sex Offender Registration and Notification Act (SORNA).

A federal judge eventually sentenced Cabrera to a further 17 months behind bars and three years of supervised release. The 9th Circuit issued an appellate ruling in the case in June, but later withdrew it in favor of a panel rehearing. A divided three-judge panel issued a new ruling on Monday, affirming dismissal of Cabrera's registration challenge.

"Unlike Sebelius, SORNA does not regulate individuals 'precisely because they are doing nothing,'" Judge A. Wallace Tashima wrote for the panel. "SORNA applies only to individuals who have been convicted of a sexual offense. Thus, registration is required only of those individuals who, through being criminally charged and convicted, have placed themselves in a category of persons who pose a specific danger to society. Moreover, SORNA's application to Cabrera is based on his further admitted activities of traveling in interstate commerce and then failing to register. Thus, SORNA does not punish the type of inactivity addressed in Sebelius."

A two-judge majority did agree, however, with Cabrera's interpretation of another highly cited though less controversial recent Supreme Court ruling - Descamps v. United States. That June 2013 ruling bars courts from applying the so-called "modified categorical approach" to determine whether a state conviction meets the federal standard if the "statute of conviction contains an indivisible set of elements."

Applying Descamps to Cabrera's original conviction in Oregon for second-degree sexual abuse, the majority ruled that he had been improperly sentenced for failing to register as a Tier III sex offender.

Here the Oregon law "sweeps more broadly" than the federal law, according to the ruling.

In a partial dissent, Judge Consuelo Callahan said Cabrera had admitted having sex with an incapacitated victim, an element that "fall[s] well within the federal definition of sexual abuse."

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