and Submitted September 9, 2019 San Francisco, California
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
C. Gupta (argued) and Kathleen Bliss, Kathleen Bliss Law
PLLC, Henderson, California, for Defendant-Appellant.
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.
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
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.
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 was legally imposed, the panel concluded that
the appellate waiver in the defendant's plea agreement is
enforceable, and dismissed the appeal.
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,
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
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.
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.
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."
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).
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."
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.
did not object to the PSR.
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,
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