Courts may Not take a Non-categorical Approach

Abstract: On March 5, 2010, the U.S. Court of Appeals for the Eleventh Circuit in United States v. Dodge held that courts may take a non-categorical approach in determining whether a defendant qualifies as a sex offender under the Sex Offender Registration and Notification Act. Although a non-categorical approach is warranted by accepted standards of statutory construction, courts following a non-categorical approach in the future should be wary of violating due process. Given that registration requirements have certain punitive characteristics, defendants may be successful in due process challenges to registration decisions based on facts neither admitted by the defendant nor submitted to a jury. Moreover, registration decisions based on a defendant’s underlying conduct stray from prior Supreme Court reasoning suggesting that registration decisions based on conviction history alone are consistent with due process.

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This case reveals several defined approaches to what is and what can be consider a sex offense and require a person to of course, register as a sex offender. Although the court affirmed the original court decision, “…Therefore, we conclude that he is a sex offender under SORNA and that the district court did not abuse its discretion in requiring him to register as one. ” this case does provides material to argue how broadly the courts (more so the sentencing commission and SORNA) can qualify an offense to be applied as a sex offense.

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