United States v. Nickolas Conrad

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2117
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David Rem, *
*
Appellant, * Appeal from the United States
* District Court for the District
v. * of Minnesota.
*
United States Bureau of Prisons, * [PUBLISHED]
*
Appellee. *
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Submitted: February 10, 2003
Filed: February 18, 2003
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Before BOWMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
In 1991, David Rem pleaded guilty to possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 151 months in
prison to be followed by five years of supervised release. Near the end of his prison
sentence, Rem completed a substance abuse treatment program that qualified him for
early release under 18 U.S.C. § 3621(e)(2)(B). In October 2000, Rem brought a
declaratory judgment action asserting he should not be subject to 18 U.S.C. § 4042(b)
(enacted in 1994), which requires that state and local law enforcement be notified in
writing of the release of a person convicted of a drug trafficking crime or a crime of
violence. Rem argued Congress did not intend to apply § 4042(b) to a prisoner who

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*
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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qualifies for early release, his conviction did not fall under the statute, and the
notification requirement is unconstitutional. In March 2001, the district court*
granted summary judgment to the Bureau of Prisons (BOP), holding the notification
requirement applied to Rem and was not unconstitutional. Rem was released to
supervision in May 2001 and the BOP notified state and local law enforcement
agencies as required by § 4042(b). Rem appeals the denial of declaratory relief, and
we affirm.
Section 4042(b)(1) provides:
At least 5 days prior to the date on which a prisoner described in
paragraph (3) is to be released on supervised release, or, in the case of
a prisoner on supervised release, at least 5 days prior to the date on
which the prisoner changes residence to a new jurisdiction, written
notice of the release or change of residence shall be provided to the
chief law enforcement officer of the State and of the local jurisdiction
in which the prisoner will reside. Notice prior to release shall be
provided by the Director of the Bureau of Prisons. Notice concerning
a change of residence following release shall be provided by the
probation officer responsible for the supervision of the released prisoner
. . . .
The notice must disclose the prisoner’s name, criminal history, and any restrictions
on conduct or other conditions to release. Id. § 4042(b)(2).
The BOP initially argues Rem’s appeal is moot because notification was issued
when Rem was released to supervision. Because § 4042(b) requires the issuance of
notice both when prisoners are released from prison to supervised release and when
former prisoners on supervised release change residence to a new jurisdiction, we

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conclude Rem’s appeal is not moot. Rem remains subject to the statute during the
remainder of his supervised release, so we have jurisdiction to consider his appeal.
Rem first asserts prisoners who are granted early release under 18 U.S.C. §
3621 and who have not been convicted of a crime involving a firearm are not subject
to § 4042(b). We disagree. We need not delve into statutory construction as Rem
asserts because the statute’s plain, unambiguous language applies to drug traffickers
like Rem. Dowd v. United Steelworkers of America, 253 F.3d 1093, 1099 (8 th Cir.
2001). According to § 4042(b)(1), the notice requirement applies to prisoners
described in § 4042(b)(3), which describes prisoners convicted of either a drug
trafficking crime as defined in § 924(c)(2) or a crime of violence as defined in §
924(c)(3). Id. § 4042(b)(3). Section 924(c)(2) defines a drug trafficking crime as
“any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.).”
Rem was convicted of a felony punishable under the Controlled Substances Act, 21
U.S.C. § 841. Section 4042(b) contains no statutory exception for offenders eligible
for early release, for nonviolent drug trafficking offenses, or for drug trafficking
offenses that do not involve a firearm. Contrary to Rem’s assertion, Congress’s use
of the definition of drug trafficking crimes in § 924, part of the chapter on crimes
involving firearms, does not mean the drug trafficking offense must involve a firearm
for the purposes of § 4042(b).
Rem next contends § 4042(b) violates procedural due process. To state a due
process claim, Rem must have a legal entitlement, right, or liberty interest protected
under state or federal law. Peck v. Hoff, 660 F.2d 371, 373 (8 th Cir. 1981) (per
curiam). Rem’s due process claim fails because he has no protected liberty interest
in his reputation alone or in his classification as a drug trafficker. See Cutshall v.
Sundquist, 193 F.3d 466, 481-82 (6 th Cir. 1999) (rejecting due process challenge to
Tenn. Sex Offender Registration Act); Russell v. Gregoire, 124 F.3d 1079, 1094 (9 th
Cir. 1997) (same for Wash. Community Protection Act). Unlike the situation in cases
cited by Rem, there is no registration requirement in the federal law. See Doe v.

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Dep’t of Pub. Safety, 271 F.3d 38, 43, 56 (2d Cir. 2001) (law required sex offender
to verify address every ninety days, notify state of address changes or travel plans,
and provide blood samples). Notification alone does not constitute a change in legal
status that implicates a liberty interest.
Rem also asserts § 4042(b) violates the Ex Post Facto Clause. The Clause
prohibits legislative acts that retroactively alter the definition of criminal conduct or
increase the punishment for criminal acts. Burr v. Snider, 234 F.3d 1052, 1054 (8 th
Cir. 2000). Rem implies that notification increases the criminal punishment for his
offense. To decide whether a statute imposes punishment, we first consider whether
the purpose of the statute is punitive. If not, then we inquire whether the statute’s
effect is punitive. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963).
We conclude neither the purpose nor the effect of § 4042(b) is punitive. Our
conclusion is consistent with decisions uniformly upholding state sex offender
registration laws when challenged as punitive under the Ex Post Facto Clause. See
Moore v. Avoyelles Corr. Ctr., 253 F.3d 870, 872-73 (5 th Cir. 2001) (La.); Burr, 234
F.3d at 1054-55 (N.D.); Femedeer v. Haun, 227 F.3d 1244, 1248-53 (10 th Cir. 2000)
(Ut.); Cutshall, 193 F.3d at 477 (Tenn.); Doe v. Pataki, 120 F.3d 1263, 1284 ( 2d Cir.
1997) (N.Y.); Roe v. Office of Adult Prob., 125 F.3d 47, 55 (2d Cir. 1997) (Conn.);
Russell, 124 F.3d at 1093 (Wa.). Congress intended § 4042(b) to serve a regulatory
purpose in notifying local law enforcement of the release of drug traffickers into the
community. The statute does not affirmatively restrain the offender. See Femedeer,
227 F.3d at 1250; Russell, 124 F.3d at 1092. Notification has a legitimate
nonpunitive purpose, see Cutshall, 193 F.3d at 475, and § 4042 is not excessive in
relation to that purpose. In sum, because § 4042(b) was enacted to protect the public,
and is reasonably related to the nonpunitive purposes of public safety and crime
prevention, the Ex Post Facto Clause is not implicated.

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Rem last contends § 4042(b) violates the Equal Protection Clause, which
provides that “all persons similarly situated should be treated alike.” City of
Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). This claims fails as
well. Unless § 4042(b) trammels fundamental personal rights or involves a suspect
class, the statute need only be rationally related to a legitimate governmental goal.
Higgins v. Carpenter, 258 F.3d 797, 799 (8 th Cir. 2001) (per curiam). Convicted drug
traffickers are not a suspect class, see id., and no fundamental personal right is
involved. Thus, we apply rational basis review and conclude § 4042(b) is rationally
related to the government’s interest in preventing future drug trafficking crimes and
protecting public safety. Rem’s reliance on Zacher v. Tippy, 202 F.3d 1039 (8 th Cir.
2000) is misplaced because the warden in that case conceded, for unapparent reasons,
that § 4042(b) did not apply to the prisoner.
Having concluded we have jurisdiction to consider the appeal, § 4042(b)
applies to Rem, and the statute passes constitutional muster, we affirm the district
court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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