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United States v. Dailey

United States Court of Appeals, Ninth Circuit

November 4, 2019

United States of America, Plaintiff-Appellee,
v.
Jazzmin Dailey, AKA Jazziee, Defendant-Appellant.

          Argued and Submitted September 9, 2019 San Francisco, California

          Appeal from the United States District Court D.C. No. 2:15-cr-0226-GMN-PAL for the District of Nevada Gloria M. Navarro, District Judge, Presiding

          Jaya C. Gupta (argued) and Kathleen Bliss, Kathleen Bliss Law PLLC, Henderson, California, for Defendant-Appellant.

          Elham Roohani (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.

          Before: Ronald M. Gould, Carlos T. Bea, and Michelle T. Friedland, Circuit Judges.

         SUMMARY[*]

         Criminal Law

         The panel dismissed an appeal from the district court's imposition of a probation condition requiring the defendant to register as a sex offender pursuant to the Sex Offender Notification and Registration Act, in a case in which the defendant pleaded guilty to violating the Travel Act based on an incident in which she transported a minor across state lines for the purpose of having the minor engage in prostitution.

         Because the text and structure of SORNA's residual clause make it clear the clause requires the application of a non-categorical approach to determine whether a conviction is for an offense involving "any conduct that by its nature is a sex offense against a minor," the panel concluded that Department of Justice guidelines interpreting the residual clause as requiring the categorical approach are not entitled to Chevron deference. Because the defendant's plea agreement and plea colloquy each contained an admission that the victim was a juvenile, the panel, applying the non-categorical approach, held that it is clear that the defendant's conviction was for an offense committed "against a minor." Rejecting the defendant's argument that there is no "sex offense" where the minor never completed an act of prostitution, the panel wrote that driving a minor to Las Vegas, buying her provocative clothing, instructing her on the unwritten rules of prostitution, and renting a hotel room, all with the intent that the minor engage in acts of prostitution, certainly qualifies as "conduct that by its nature is a sex offense against a minor." The panel concluded that the defendant is therefore required to register as a sex offender pursuant to SORNA.

         The panel rejected the defendant's argument that she did not have adequate notice before sentencing that she would be required to register, and concluded that the district court did not delegate the Article III judicial power in imposing the sentence.

         Because the sentence was legally imposed, the panel concluded that the appellate waiver in the defendant's plea agreement is enforceable, and dismissed the appeal.

          OPINION

          BEA, CIRCUIT JUDGE:

         Jazzmin Dailey pleaded guilty to violating 18 U.S.C. § 1952(a)(3)(A) ("the Travel Act") based on a June 2015 incident in which Dailey transported a minor across state lines for the purpose of having the minor engage in prostitution. Dailey was sentenced to three years of probation and ordered by the district court to register as a sex offender pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20901, et seq.

         On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a "sex offense." Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials. For the reasons below, we reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey's plea agreement.

         BACKGROUND

         Dailey and her juvenile victim, T.B., were arrested on June 16, 2015, in an area of Las Vegas known for its high prostitution activity. When asked to produce identification, T.B. told the officer that she was 16 years old, and a subsequent records check revealed that T.B. was a missing juvenile from Chandler, Arizona. Dailey told investigators she believed T.B. was 20 years old.

         T.B. later told a detective from the Child Exploitation Task Force that she had traveled from Arizona to Las Vegas to celebrate Dailey's birthday as part of a four-person group with Dailey, another woman, and a 48-year-old male. T.B. had joined the group at the invitation of the third woman, and when the other woman and T.B. went to rendezvous with Dailey, they first met the male, who told them, "I have a girl coming, she'll be the boss; she handles everything." Shortly thereafter, Dailey arrived in a rented car.

         Dailey drove the group to a clothing store, where she purchased provocative, skimpy clothing for the women. While at the store, T.B. became aware that Dailey intended for T.B. to engage in prostitution once they arrived in Las Vegas. Dailey then drove the group to Las Vegas, instructing them on the unwritten rules of prostitution in the car. Among other things, Dailey instructed the women to "text a smiley face symbol to [her]" if they "[got] a trick." Dailey also rented a room at the Orleans Hotel and Casino for the women. Dailey secured a firearm in her room, and, according to T.B., Dailey told the women, "[i]f you get caught or say something about us, we'll kill you."

         In August 2015, a grand jury returned an indictment against Dailey. She was charged with one count of transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a), (e) and one count of attempted sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2) and 1594(a), (b). Eventually, Dailey pleaded guilty to one count of violating the Travel Act, which criminalizes traveling in interstate commerce with the intent to commit an "unlawful activity." See 18 U.S.C. § 1952(a)(3). A variety of unlawful activities may trigger a violation of the Travel Act, none of which require that the unlawful activity involve a victim of minor age. See id. at § 1952(b).

         However, in her plea agreement and during the plea colloquy, Dailey admitted that T.B. was a juvenile and that Dailey drove T.B. from Arizona to Nevada with the intent that T.B. would engage in prostitution. Dailey further admitted that she took steps to facilitate T.B.'s prostitution by instructing her in the rules of prostitution, purchasing provocative clothing, and renting a hotel room in Las Vegas. The plea agreement contained a notice that Dailey "may be required to register as a sex offender under the laws of the state of her residence." At the change of plea hearing, the government reiterated the plea agreement's provision involving sex offender registration requirements under federal law. An additional provision in the plea agreement acknowledged that Dailey waived her right to appeal any sentence falling within the sentencing guideline range or "any other aspect of the conviction or sentence and any order of restitution or forfeiture."

         After Dailey pleaded guilty, and prior to her sentencing hearing, the probation office prepared a presentence report (PSR) recommending Dailey be sentenced to 46 months imprisonment followed by three years of supervised release. The PSR also stated that while on supervised release Dailey "shall comply with . . . the following mandatory condition[]":

5. You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work, are a student, or were convicted of a qualifying offense.

         Dailey did not object to the PSR.

         The district court held Dailey's sentencing hearing in March 2018. Announcing that she would "vary downward for [Dailey] and take a chance," the district judge sentenced Dailey to no imprisonment and three years of probation, citing her vulnerability, remorse, and otherwise good behavior. The district judge also stated the terms of Dailey's probation would include the "standard and mandatory conditions of probation" from the PSR. The district court's written judgment contained an identical provision to the PSR's statement that Dailey "must comply with the requirements of the Sex Offender Registration and Notification Act (SORNA) as directed by" probation or state officials. Dailey was subsequently required to register as a sex offender in her state of residence, Arizona.

         Dailey now appeals her sentence, arguing the district court erroneously required her to register as a sex offender. She also argues the district court failed to provide her adequate notice of the registration requirement before it sentenced her and that the court delegated its Article III powers to probation officials. Because Dailey challenges the legality of ...


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