Opinion
21-10333
11-01-2022
UNITED STATES OF AMERICA, Plaintiff-Appellee, v. COLE LUSBY, Defendant-Appellant.
NOT FOR PUBLICATION
Argued and Submitted October 19, 2022 San Francisco, California
Appeal from the United States District Court for the District of Nevada D.C. No. 2:18-cr-00136-APG-PAL-1Andrew P. Gordon, District Judge, Presiding
Before: WALLACE and FRIEDLAND, Circuit Judges, and LASNIK, [**] District Judge.
MEMORANDUM [*]
Cole Lusby appeals from the district court's denial of his motion to dismiss the superseding indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
We review Lusby's constitutional challenges to 18 U.S.C. § 2250(a) de novo. See United States v. King, 660 F.3d 1071, 1076 (9th Cir. 2011); United States v. Zhi Yong Guo, 634 F.3d 1119, 1121 (9th Cir. 2011). The government contends that these challenges are foreclosed by our prior opinion in United States v. Lusby, 972 F.3d 1032 (9th Cir. 2020). However, we previously addressed only Lusby's statutory arguments, not any constitutional objections to section 2250(a). See id. at 1043. For this reason, Lusby's present constitutional challenges are not barred under the law-of-the-case doctrine. See Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). We now turn to Lusby's constitutional arguments.
First, Lusby's challenge to section 2250(a) under the Commerce Clause fails. Our court has repeatedly upheld section 2250(a) as a lawful exercise of Congress's authority under the Commerce Clause. See United States v. George, 625 F.3d 1124, 1130 (9th Cir. 2010) ("Congress had the power under its broad commerce clause authority to enact the SORNA [Sex Offender Registration and Notification Act]."), vacated on other grounds, 672 F.3d 1126 (9th Cir. 2012); see also United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1129-30 (9th Cir. 2014) (reaffirming George's Commerce Clause analysis). We are bound by these precedents.
Second, Lusby brings a vagueness challenge. The Due Process Clause forbids the enforcement of a statute that "fails to give ordinary people fair notice of the conduct it punishes" or that "invites arbitrary" application. Johnson v. United States, 576 U.S. 591, 595 (2015). Vagueness challenges may arise as either facial or as-applied objections-the former charges that the law is "invalid in toto" and in all applications and the latter argues that the law is impermissibly vague under the "facts of the case at hand." Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489, 494-95, 494 n.5, 495 n.7 (1982) (internal quotation marks omitted).
Lusby contends that he may bring a facial vagueness challenge to section 2250(a), citing our court's decision in Henry v. Spearman, 899 F.3d 703 (9th Cir. 2018). However, as we recently clarified, Henry did not alter the "general rule" that "a defendant who cannot sustain an as-applied vagueness challenge to a statute cannot be the one to make a facial vagueness challenge to the statute." Kashem v. Barr, 941 F.3d 358, 375 (9th Cir. 2019). Surveying Henry and recent Supreme Court precedent, we held in Kashem that litigants whose conduct is "clearly prohibited" by a statute may only bring an as-applied vagueness challenge, subject to two exceptions: where the statute is vague "even as applied" or where the challenged provisions have "exceptional circumstances." Id. at 375-77, discussing Sessions v. Dimaya, 138 S.Ct. 1204, 1214 &n.3 (2018) and Johnson, 576 U.S. at 597-602.
Lusby's conduct is plainly proscribed by section 2250(a), and therefore his as-applied challenge fails. Section 2250(a) subjects federal prosecution to: (1) convicted sex offenders (2) who travel in interstate commerce and (3) then knowingly fail to comply with their SORNA registration obligations. See Carr v. United States, 560 U.S. 438, 446-47 (2010). Lusby is a convicted sex offender who travelled from Arizona to Las Vegas, where he planned to live after completing his prison term in Arizona, and, about three months later, had still failed to comply with his registration obligations in Nevada. For these reasons, Lusby's vagueness challenge fails. See United States v. Szabo, 760 F.3d 997, 1003 (9th Cir. 2014) ("So long as the challenged terms 'are clear in their application to [the defendant's] conduct, [the] vagueness challenge must fail.'"), quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 21 (2010).
Lusby did not argue that the exceptions identified in Kashem apply.
We previously held that the defendant's interstate travel need not be voluntary in the sense of being free of legal compulsion. Lusby, 972 F.3d at 1034-35.
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation.