United States v White

White appealed his conviction and sentence for failing to change his sex offender registration. The panel affirmed his conviction but vacated the sentence and remanded. It held that because the criminal portion of the federal sex offender statute requires interstate travel, it is a proper exercise of commerce clause power. It also held that the statute does not violate the ex post facto clause or the 10th Amendment as the only duty is on offenders like White and the state are induced to participate through federal spending which does not violate the 10th Amendment. The panel vacated the sentence because the statute requires the categorical approach based on the language of the statute, but, also requires a look at the victim’s age for sentencing purposes and this is consistent with the legislative history’s focus on child victims. Here, the district court erred by not applying the categorical approach at the first level of analysis. Here, the state statute White violated does not require physical contact and thus is a tier 1 offense not tier 3 as the district court ruled. The panel offered guidance as to two supervised release conditions holding grandparent relationship with children is entitled to lesser protection than custodial ones and White bears the burden to prove the nature of his relationship with his grandchildren and that the district court did not improperly delegate authority to the probation office in setting supervised contact with minors given the guidelines in the condition and the district court’s continuing participation in the implementation of the condition.

United States v Herrera

The government appealed the grant of Herrera’s Franks motion. The panel reversed. It held that the district court was slowed to hold a hearing without Herrera showing an entitlement to the hearing. The panel held the district court erred in not following the proper evidentiary procedure and clearly erred in finding intentional or reckless conduct by the officer who applied for the warrant.