As you might gather from the title, United States v. Dailey, USCA9 No. 18-10134, Nov. 4, 2019, involves some complex issues.
When an element of a crime is the fact that the defendant committed or was previously convicted of another crime, described in general terms rather than listing specific code sections, a question arises in deciding whether the other crime fits the description. Do we look at the minimum elements that could possibly be true and still result in the conviction of the other crime? That is the "categorical approach." Or do we look at what the defendant actually did while committing that crime. That is the "non-categorical approach."
The question must be asked for each statute. The Ninth Circuit confronted the problem yesterday in the case of Jazzmin Dailey, who drove a 16-year-old girl, T.B., from Arizona to Las Vegas, instructed her in prostitution, bought her provocative clothing, and threatened to kill her if she told the police. Does this make Dailey a "sex offender" for the purpose of the Sex Offender Registration and Notification Act? One would think it should.
Dailey was charged with, among other things, violating 18 U.S.C. § 2423(a), transporting a minor in interstate commerce "with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense ...." and 18 U.S.C. § 1591, sex trafficking of children or by force, fraud, or coercion.
In the eventual plea bargain, she pleaded guilty only to violating the Travel Act, 18 U.S.C. § 1952. That is a section in the Racketeering chapter that prohibits traveling in interstate commerce for certain unlawful activities.The elements of the unlawful activities would not necessarily trigger SORNA registration requirements. However, in her plea agreement Dailey admitted that T.B. was a minor and that Dailey drove her across the state line for prostitution.
Although she made no objection in the trial court, Dailey appealed on the ground that she had received an illegal sentence. With a conviction for a crime that does not include the elements needed to trigger SORNA registration but admitted facts that do, does the court look only to the elements or also consider the facts? The Ninth Circuit had previously decided for the non-categorical approach (considering the actual facts) in United States v. Byun, 539 F.3d 982 (2008). Well, that settles it, right?
But there is one more wrinkle. USDOJ subsequently issued guidelines interpreting the statute in question as requiring the categorical approach. Is the Ninth Circuit required to scrap its own prior interpretation and defer to the administrative interpretation under the very controversial doctrine of Chevron v. National Resource Defense Council, 467 U.S. 837 (1984). No, says the panel. They do not have to defer when the statute is clear.
But is it really that clear? Reading the analysis in the opinion, I'm skeptical. Yes, I agree it is the "best reading," but is that enough?
What if this case goes to the Supreme Court? There may be a majority on the Court ready to give the Chevron doctrine the heave-ho. Last term we thought Gundy might be the case, but it was decided by a four-Justice Court. See posts here and here. Now that the Supreme Court is back to full strength, could this be the case? Stay tuned.
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