United States v Alexander

Alexander appealed the denial of his motion to dismiss the indictment accusing him of failure to register as a sex offender and the classification of the offense as tier 3. The panel, with one judge concurring, affirmed. The majority held that the district court properly characterized Alexander’s California conviction as a tier 3 offence as the California statue requires the use of fear to induce consent, the more serious federal statute which state convictions are compared to is not limited to direct threats and the less serious comparable federal statue does not require more fear to be induced than the California statute. The majority held that Alexander’s California offense was not for a consensual sex offense because the statutory context suggests that placing the victim in fear is the type of act Congress intended to trigger registration requirements and fear through deception is still fear and this conclusion is consistent with the Model Penal Code which excludes assent induced through fear from consent. The concurrence argued that the California conviction is comparable to the less serious federal offense and thus would not decide if it also compared to the more serious federal statute.

In re Gieswein

Gieswein applied to file a successive habeas petition. The panel denied permission holding that the United States Supreme Court decision declaring the residual clause of eth Armed career Criminal Act unconstitutional has not been held retroactive by the Supreme Court and thus does not provide a basis for a new habeas petition. The panel acknowledged the 7th and 11th Circuits undertook independent retroactivity analysis and split on whether the residual clause rule is retroactive, but, noted 10th Circuit precedent clearly limits retroactive application to situations where the Supreme Court declares a rule retroactive or here the new rule is in category of cases which are all retroactive.