- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Criminal Law
- Date Filed: 06-03-2013
- Case #: 12-30233
- Judge(s)/Court Below: Circuit Judge Callahan for the Court; Circuit Judge Tashima, District Judge Collins
- Full Text Opinion
Pedro Cabrera-Gutierrez convicted for failing to register under the Sex Offender Registration and Notification Act. He asserted Congress lacked authority under the Commerce Clause to compel his registration as a sex offender and that he should have been sentenced as a Tier I sex offender as opposed to a Tier III sex offender. Cabrera plead guilty of second degree sexual assault in Oregon in 1998. In his plea statement, he stated that he knowingly had sexual intercourse with a 15 year old girl that was unable to consent due to being under the influence of alcohol. Upon his release in 2000, Cabrera was advised that he was required to register as a sex offender and was removed to Mexico. Cabrera was arrested in Washington on February 3, 2012 and charged in the district court with failing to register as a sex offender. Cabrera argued registering as a sex offender has nothing to do with commerce and therefore is not an appropriate purpose under the Commerce Clause. The Ninth Circuit held Cabrera's arguments were creative but wrong. The panel joined the other Circuits that have considered this issue in rejecting Cabrera's arguments. Registration is required only of individuals who have placed themselves in a category of persons who pose a specific danger to society, which Cabrera has done by admitting in his guilty plea statement that he had nonconsensual sexual intercourse with an intoxicated 15 year old. This admission by Cabrera also causes his second argument to fail as the admission causes his actions to fall under U.S.C. § 2242(B) which includes a person engaging in a sexual act with another person that is "physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act." AFFIRMED.