Petition for Writ of Certiorari — Ton Ton Aquino, Petitioner v. United States

NO. 25-_____

In the

Supreme Court of the United States

TON TON AQUINO,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

__________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Michael Schwartz

Counsel of Record

Karin Kissiah

NEW SOUTH LAW, LLC

1305 Barnard Street #203

Savannah, GA 31401

(912) 581-1999

mas@newsouthlaw.net

karin@newsouthlaw.net

July 18, 2025

SUPREME COURT PRESS

Counsel for Petitioner

♦

(888) 958-5705

♦

BOSTON, MASSACHUSETTS

i

QUESTION PRESENTED

Whether it is unlawful for a court to impose sex

offender registration as a condition of supervised

release for a non-qualifying offense, and to enforce an

appellate waiver to bar review—where circuits are

divided on whether such waivers preclude challenges to

plainly unlawful sentencing conditions—thus allowing

the Eleventh Circuit, as an outlier, to shield ultra vires

registration requirements from scrutiny.

ii

LIST OF PROCEEDINGS

U.S. Court of Appeals for the Eleventh Circuit

No. 24-10330

United States of America, Plaintiff-Appellee, v.

Ton Ton Aquino, Defendant-Appellant

Opinion: December 18, 2024

Rehearing Denial: March 20, 2025

_________________

U.S. District Court, S.D. Georgia (Savannah)

No. 4:23CR00067-1

United States of America, Plaintiff v.

Ton Ton Aquino, Defendant

Judgment: January 24, 2024

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......................................... i

LIST OF PROCEEDINGS .......................................... ii

TABLE OF AUTHORITIES ...................................... vi

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

INTRODUCTION ....................................................... 2

STATEMENT OF THE CASE .................................... 3

REASONS FOR GRANTING THE PETITION ......... 6

I.

THE CIRCUITS ARE DIVIDED ON WHETHER

APPELLATE WAIVERS BAR REVIEW OF AN

UNLAWFUL SENTENCE ....................................... 6

A. The First, Third, Fourth, and Fifth

Circuits allow review of illegal sentencing

conditions despite appellate waivers,

creating a sharp divide with those that

do not ........................................................... 7

B. The Eighth and Ninth Circuits both

permit review of unlawful sentencing

conditions despite appellate waivers,

though they approach the issue with

narrower frameworks ................................. 9

C. The Sixth and Tenth Circuits, like the

Eleventh, take a rigid approach to

appellate waivers that often forecloses

review even where the sentencing court

imposes conditions without legal

authority.................................................... 10

iv

TABLE OF CONTENTS – Continued

Page

II. THE UNLAWFUL SORNA REGISTRATION

CONDITION UNDERMINES THE VALIDITY OF THE

WAIVER AND CONSTITUTES PLAIN ERROR ....... 12

A. Federal Courts Have Rejected SORNA

Registration Based on Unqualified

Convictions ................................................ 13

B. Because the Registration Requirement

Is Unlawful, the Eleventh Circuit’s

Waiver Analysis Is Erroneous .................. 18

III. THIS CASE IS AN IDEAL VEHICLE TO RESOLVE

THE CIRCUIT SPLIT .......................................... 19

CONCLUSION.......................................................... 21

v

TABLE OF CONTENTS – Continued

Page

APPENDIX TABLE OF CONTENTS

OPINIONS AND ORDERS

Opinion, U.S. Court of Appeals for the

Eleventh Circuit (December 18, 2024) .............. 1a

Judgment in a Criminal Case, U.S. District

Court Southern District of Georgia

Savannah Division (January 24, 2024) ........... 13a

REHEARING ORDER

Order Denying Petition for Rehearing En Banc,

U.S. Court of Appeals for the Eleventh

Circuit (March 20, 2025) .................................. 23a

STATUTORY PROVISIONS

Statutory Provisions Involved ................................ 25a

18 U.S.C.A. § 4 .................................................. 25a

34 U.S.C.A. § 20911 .......................................... 25a

CASE DOCUMENTS

Plea Agreement, U.S. District Court Southern

District of Georgia Savannah Division

(August 23, 2023) ............................................. 32a

Transcript of Rule 11 Hearing, U.S. District

Court Southern District of Georgia

Savannah Division (August 23, 2023) ............. 42a

Transcript of Sentencing Hearing, U.S. District

Court Southern District of Georgia

Savannah Division (January 16, 2024) ........... 68a

Petition for Rehearing or Hearing En Banc,

U.S. Court of Appeals for the

Eleventh Circuit (February 5, 2025) ............. 129a

vi

TABLE OF AUTHORITIES

Page

CASES

TABLE OF AUTHORITIES

Alleyne v. United States,

570 U.S. 99 (2013) ....................................... 13, 19

United States v. Andis,

333 F.3d 886 (8th Cir. 2003) ............................... 9

United States v. Andruchuk,

122 F.4th 17 (1st Cir. 2024) ................................ 7

United States v. Baptiste,

34 F. Supp. 3d 662 (W.D. Tex. 2014) .......... 14, 15

United States v. Bascomb,

451 F.3d 1292 (11th Cir. 2006) ......................... 11

United States v. Beck,

957 F.3d 440 (4th Cir. 2020) ............................... 8

United States v. Becker,

682 F.3d 1210 (9th Cir. 2012) ..................... 16, 17

United States v. Byun,

539 F.3d 982 (9th Cir. 2008) ....................... 16, 17

United States v. Castleman,

572 U.S. 157 (2014) ........................................... 17

United States v. Dailey,

941 F.3d 1183 (9th Cir. 2019) ........................... 10

United States v. Dallman,

886 F.3d 1277 (8th Cir. 2018) ............................. 9

United States v. Darkes,

608 F. App’x 584 (10th Cir. 2015) ..................... 11

United States v. DeJarnette,

741 F.3d 971 (9th Cir. 2013) ............................. 10

vii

TABLE OF AUTHORITIES – Continued

Page

United States v. Del Valle-Cruz,

785 F.3d 48 (1st Cir. 2015) .................................. 7

United States v. Dodge,

597 F.3d 1347 (11th Cir. 2010) ......................... 18

United States v. Gonzalez-Medina,

757 F.3d 425 (5th Cir. 2014) ............................. 17

United States v. Grinard-Henry,

399 F.3d 1294 (11th Cir. 2005) ......................... 11

United States v. Icker,

13 F.4th 321 (3d Cir. 2021) ........................... 8, 13

United States v. King,

41 F.4th 1363 (11th Cir. 2022).......................... 11

United States v. Knight,

939 F.3d 933 (8th Cir. 2019) ........................... 7, 9

United States v. Martinez-Torres,

795 F.3d 1233 (10th Cir. 2015) ................... 13, 19

United States v. Maurek,

661 F. App’x 553 (10th Cir. 2016) ..................... 11

United States v. McIntosh,

2003 WL 22435676

(6th Cir. Oct. 23, 2003) ...................................... 10

United States v. McLeod,

972 F.3d 637 (4th Cir. 2020) ............................... 8

United States v. Navarro,

54 F.4th 268 (5th Cir. 2022)............................ 8, 9

United States v. Rickett,

535 F. App’x 668 (10th Cir. 2013) ..................... 11

viii

TABLE OF AUTHORITIES – Continued

Page

United States v. Santiago,

769 F.3d 1 (1st Cir. 2014) .................................... 7

United States v. Schofield,

802 F.3d 722 (5th Cir. 2015) ............................. 14

United States v. Thayer,

40 F.4th 797 (7th Cir. 2022).............................. 15

United States v. Torres,

828 F.3d 1113 (9th Cir. 2016) ........................... 10

United States v. Yelloweagle,

643 F.3d 1275 (10th Cir. 2011) ......................... 11

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................................ 12

U.S. Const. amend. VI .............................................. 12

STATUTES

18 U.S.C. § 3583(d) ................................................... 17

18 U.S.C. § 4 .................................................. 3, 4, 5, 12

28 U.S.C. § 1254(1) ..................................................... 1

34 U.S.C. § 20911 .................................................... 5, 8

34 U.S.C. § 20911(1) ................................................... 6

34 U.S.C. § 20911(5)(A) ...................................... 3, 4, 6

34 U.S.C. § 20911(7)(I) ................................. 14, 15, 16

JUDICIAL RULES

Sup. Ct. R. 13.5 ........................................................... 1

1

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Eleventh Circuit denying Mr. Aquino’s appeal

is unpublished and is included in the appendix at

App.1a, United States v. Aquino, No. 24-10330, 2024

WL 5155129 (11th Cir. Dec. 18, 2024). The Eleventh

Circuit’s order denying Mr. Aquino’s petition for panel

rehearing and for rehearing en banc was entered on

March 20, 2025, and is included in the appendix at

App.23a, United States v. Aquino, No. 24-10330, slip

op. at 1 (11th Cir. Mar. 20, 2025) (per curiam) (denying

reh’g and reh’g en banc).

JURISDICTION

This Court has jurisdiction under 28 U.S.C.

§ 1254(1). The judgment of the United States Court of

Appeals for the Eleventh Circuit was entered on

December 18, 2024. A timely petition for rehearing

was denied on March 20, 2025. On June 11, 2025,

Justice Thomas granted an extension of time to file

this petition for a writ of certiorari to and including

July 18, 2025. Order Granting Extension of Time, Ton

Ton Aquino v. United States of America, No. 24A1213

(U.S. June 11, 2025) (Thomas, J.) This petition is timely

filed under Rule 13.5 of this Court.

2

INTRODUCTION

This case presents a question of exceptional importance concerning the scope of appellate waivers and

the judicial imposition of Sex Offender Registration

and Notification Act (SORNA) conditions for offenses

that do not require registration. Petitioner pleaded

guilty to a non-qualifying offense pursuant to a plea

agreement containing an appellate waiver. App.36a37a. At sentencing, the district court imposed SORNA

registration as a condition of supervised release even

though Petitioner’s offense is not one for which registration is required under federal law. App.84a.

Petitioner sought to challenge the legality of this

condition, but the Eleventh Circuit enforced the appellate waiver and declined to reach the merits. United

States v. Aquino, No. 24-10330, 2024 WL 5155129, at

*12 (11th Cir. Dec. 18, 2024). (App.10a). In doing so, it

furthered a circuit split—keeping the Eleventh Circuit

in the minority—on whether a general appellate

waiver forecloses review of sentencing conditions that

exceed statutory authority or impose unlawful collateral

consequences, even when the issue arose entirely

after the waiver and could not have been knowingly or

intelligently waived at the time of the agreement. The

decision below, and the Eleventh Circuit’s precedent,

insulates ultra vires sentencing conditions from review,

even where a defendant had no reasonable notice such

conditions could apply.

This petition presents the opportunity for this

Court to eliminate a circuit split and clarify the limits

of appellate waivers, address an unresolved question

3

of statutory interpretation under SORNA, and ensure

that sentencing courts do not exceed their authority

in ways shielded from appellate correction.

STATEMENT OF THE CASE

Petitioner Ton Ton Aquino pleaded guilty to

misprision of a felony under 18 U.S.C. § 4, an offense

that does not qualify as a “sex offense” under the Sex

Offender Registration and Notification Act (SORNA),

34 U.S.C. § 20911(5)(A). App.59a. The underlying

conduct involved a false statement to military police

during an investigation related to child sexual abuse

material (CSAM), but Aquino was not convicted of any

offense involving sexual conduct or CSAM. App.59a.

The misprision conviction was based on Aquino’s

failure to report a felony and his false statement about

the alleged crime of possession of child sexual abuse

material. App.32a.

Aquino’s plea agreement contained an appellate

waiver, which did not reference SORNA or any condition

requiring registration, but which waived any appeal

unless: (1) the court enters a sentence above the statutory maximum, (2) the court enters a sentence above

the advisory Sentencing Guidelines range found to apply

by the court at sentencing; or (3) the Government

appeals the sentence. Plea Agreement at 5. The Court

accepted Aquino’s plea. App.60a. At no point during the

plea proceedings was Mr. Aquino advised that his

guilty plea could subject him to SORNA registration.

See generally App.42a-67a; 32a-41a.

4

The original Presentence Investigation Report

(PSI), as submitted by the probation office, did not

recommend a SORNA registration requirement. App.5a.

After receiving the initial PSI, the Government submitted a request to the probation officer asserting that

SORNA should apply based on Aquino’s underlying

conduct. In response, the probation officer issued a

revised PSI adopting the Government’s position and

including the registration condition, despite no statutory

requirement that misprision of a felony under 18 U.S.C.

§ 4 triggers SORNA. App.5a-6a. Defense counsel

objected in writing and at the sentencing hearing,

arguing that the registration condition lacked legal

basis because the offense of conviction is not a

qualifying “sex offense” under 34 U.S.C. § 20911(5)(A).

App.6a. The issue was litigated at sentencing. App.6a8a; 72a-73a, 77a-83a. Over objection, the district court

imposed SORNA registration as a condition of supervised release, relying not on the offense of conviction

but on dismissed allegations underlying a separate

charge. App.6a-8a; 72a-73a.

Aquino appealed, and the Eleventh Circuit held

that the appeal was barred by the appellate waiver.

App.11a. The court reasoned that, because the term of

supervised release did not exceed the statutory maximum, the condition was unreviewable. App.12a. The

court dismissed the appeal on that basis, concluding

that Mr. Aquino’s general appellate waiver precluded

review even though the challenged condition was

plainly unlawful and neither addressed in the plea

agreement nor reasonably contemplated at the time of

its execution. App.3a-5a, 7a-8a; 72a-73a.

Mr. Aquino timely petitioned for panel rehearing

and rehearing en banc, arguing that the Eleventh

5

Circuit’s enforcement of his appellate waiver to bar

review of a plainly unlawful SORNA condition amounts

to a holding that even an illegal sentence is unreviewable if imposed post-waiver. App.132a-145a. He

contended that requiring sex-offender registration for

a conviction under 18 U.S.C. § 4—an offense not listed

in or encompassed by 34 U.S.C. § 20911—was legal

error made worse by the district court’s reliance on

dismissed conduct to impose the condition. App.133a137a; 140a-145a. Mr. Aquino noted that the Eleventh

Circuit’s unusually rigid approach places it among a

small minority of circuits holding that appellate

waivers can bar relief even from unlawful or statutorily

unauthorized sentences—denying defendants recourse

for errors other courts would permit them to challenge.

App.139a-141a; 141a-145a. The court denied

rehearing on March 20, 2025. United States v. Aquino,

No. 24-10330, slip op. at 2 (11th Cir. Mar. 20, 2025)

(per curiam) (denying reh’g and reh’g en banc).

(App.23a-24a)

6

REASONS FOR GRANTING THE PETITION

I.

THE CIRCUITS ARE DIVIDED ON WHETHER

APPELLATE WAIVERS BAR REVIEW OF AN

UNLAWFUL SENTENCE

This case presents a recurring and important

question of federal law on which the courts of appeals

are sharply divided: whether a general appellate waiver

in a plea agreement can bar review of a sentencing

condition that is plainly unlawful or exceeds statutory

authority. The Eleventh Circuit, in line with its increasingly rigid approach, held that Mr. Aquino’s plea

waiver barred review of a condition requiring him to

register under the Sex Offender Registration and

Notification Act (SORNA), even though the statute does

not authorize registration for the offense of conviction.

34 U.S.C. § 20911(1) and (5)(A).

In doing so, the Eleventh Circuit insulated a plainly

ultra vires sentencing condition from any appellate

scrutiny—an outcome other circuits would not permit.

See infra Part A(i)–(ii). Every other circuit to consider

the issue has adopted a more reasoned approach,

recognizing that appellate waivers do not bar review

of sentencing errors that exceed statutory authority or

result in a miscarriage of justice. See infra Part (B)(i).

Mr. Aquino would have been entitled to relief in all

but one of those jurisdictions. Outside of the Eleventh

Circuit, Mr. Aquino would not have obtained relief

only in the Sixth Circuit.

The Eleventh Circuit takes a particularly rigid

view, holding that unless an issue is expressly exempt

from an appellate waiver, it is categorically barred—

7

even where the sentencing court imposes a condition

it had no statutory authority to impose. See infra Part

(B)(ii). Notably, even the Eighth Circuit, which applies

one of the narrowest miscarriage-of-justice exceptions,

would permit review in circumstances like these. See

United States v. Knight, 939 F.3d 933, 936 (8th Cir.

2019); infra Part A(ii).

A. The First, Third, Fourth, and Fifth

Circuits allow review of illegal sentencing

conditions despite appellate waivers,

creating a sharp divide with those that

do not

The First Circuit permits review of sentencing

conditions that exceed statutory authority, even where

the defendant signed an appellate waiver. In United

States v. Andruchuk, 122 F.4th 17, 23 (1st Cir. 2024),

the court held that a waiver does not foreclose review

of a condition that was outside the sentencing court’s

authority and not contemplated at the time of the

plea. In United States v. Santiago, the court held that

it would be a miscarriage of justice to enforce a waiver

where a supervised release condition barring sexually

explicit material was never mentioned at sentencing

but added later in the written judgment. 769 F.3d 1

(1st Cir. 2014). And in United States v. Del Valle-Cruz,

the court considered whether a condition requiring

sex offender treatment—imposed without justification

and unrelated to the offense of conviction—could fall

within the miscarriage exception. 785 F.3d 48 (1st Cir.

2015). These cases demonstrate that the First Circuit

allows review where the challenged condition was not

disclosed at the plea stage or imposed without statutory

basis—precisely the circumstances presented here.

8

The Third, Fourth, and Fifth Circuits all permit

review of SORNA-related conditions where the district

court lacked statutory authority to impose them, even

where the defendant signed an appellate waiver. In

the Third Circuit, a waiver is unenforceable where the

defendant lacked notice of the challenged condition.

United States v. Icker, 13 F.4th 321, 328–30 (3d Cir.

2021). In Icker, the court held that a defendant who was

not convicted of a sex offense and was never advised

that SORNA would apply did not knowingly waive his

right to challenge that condition. 13 F.4th at 328–30.

The Third Circuit further held that imposing SORNA

registration under those circumstances constituted plain

error, because SORNA did not apply to the charged

offense. Id. at 331–32.

The Fourth Circuit likewise has held that appellate waivers do not bar review where the district court

imposes conditions not authorized by statute. United

States v. McLeod, 972 F.3d 637, 639–40 (4th Cir. 2020).

In McLeod, the court allowed review of a SORNA

registration condition where the underlying offense—

obtaining false identification for a minor—did not

meet the statutory definition of a sex offense under 34

U.S.C. § 20911. 972 F.3d at 639–40. And, in United

States v. Beck, the court allowed a challenge to the

legality of a conviction itself, despite a plea waiver,

where the statute of conviction did not state an offense

requiring registration. 957 F.3d 440, 445 (4th Cir. 2020).

In the Fifth Circuit, the imposition of a SORNA

condition may be reviewed and vacated under plain

error, even following a guilty plea with an appellate

waiver. United States v. Navarro, 54 F.4th 268, 272–73

(5th Cir. 2022). In Navarro, the court vacated a SORNAbased conviction because the defendant had no legal

9

duty to register at the time of the alleged offense and

would not have pled guilty had he known. 54 F.4th at

272–73. The court reached this result despite an appellate waiver, applying plain error review based on the

absence of legal authority for the registration requirement. Id.

B. The Eighth and Ninth Circuits both permit

review of unlawful sentencing conditions

despite appellate waivers, though they

approach the issue with narrower frameworks

The Eighth Circuit applies what it calls an

“extremely narrow” exception to waiver enforcement,

but it has articulated and applied that standard with

clarity and care. In United States v. Andis, the court

held that an otherwise valid waiver does not bar appeal

of an “illegal sentence”—defined as one not authorized

by statute or that exceeds the legal maximum. 333

F.3d 886, 891–92 (8th Cir. 2003) (en banc). The court

emphasized that the exception does not extend to

errors in guideline application or exercises of judicial

discretion, but preserves appellate review for sentences

imposed without legal authority. Under that reasoning,

the imposition of a SORNA registration condition where

the statute does not authorize it would fall squarely

within the exception. In later cases, the Eighth Circuit

has enforced waivers only where the challenged

conditions were legally authorized. In United States v.

Dallman, the court upheld a registration condition

where the defendant did not contest the legality of the

condition itself. 886 F.3d 1277, 1280 (8th Cir. 2018).

Similarly, in United States v. Knight, the court found

that the registration requirement was covered by the

10

plea and not unlawful. 939 F.3d 933, 936 (8th Cir.

2019).

The Ninth Circuit likewise allows defendants to

challenge unlawful conditions despite appellate waivers.

In United States v. Torres, the court held that an

appellate waiver does not bar review of a sentence that

exceeds the court’s statutory authority. 828 F.3d 1113,

1125 (9th Cir. 2016). That principle governs SORNArelated conditions as well. In United States v. DeJarnette, the court struck a registration condition imposed

on a pre-Act offender because the Attorney General

had not lawfully extended SORNA to that category of

individuals. 741 F.3d 971, 981 (9th Cir. 2013). And in

United States v. Dailey, the court enforced the waiver

only after confirming that the registration condition

had been disclosed in the plea agreement, discussed

at the plea colloquy, and included in the presentence

report. 941 F.3d 1183, 1192 (9th Cir. 2019).

Together, these courts reject a categorical rule

and preserve appellate review where the sentencing

court imposes conditions that are unauthorized by

statute or imposed without adequate notice.

C. The Sixth and Tenth Circuits, like the

Eleventh, take a rigid approach to appellate waivers that often forecloses review

even where the sentencing court imposes

conditions without legal authority

In the Sixth Circuit, appellate review is permitted

only where the waiver explicitly preserves the issue.

United States v. McIntosh. 2003 WL 22435676, at *1

(6th Cir. Oct. 23, 2003). In McIntosh, the court held that

a supervised release condition requiring sex offender

registration was not an “upward departure” and thus

11

could not be appealed under a waiver that carved out

only upward departures. 2003 WL 22435676, at *1

(6th Cir. Oct. 23, 2003). Under this approach, even

statutorily unauthorized SORNA conditions are unreviewable unless specifically excepted in the plea

agreement.

The Tenth Circuit enforces appellate waivers similarly. United States v. Darkes, 608 F. App’x 584, 589

(10th Cir. 2015). In Darkes, the court barred review of

special conditions imposed without clear explanation

at sentencing. Darkes, 608 F. App’x at 589. In United

States v. Yelloweagle, it declined to reach a constitutional challenge to SORNA where the issue was not

preserved. 643 F.3d 1275, 1281 (10th Cir. 2011). While

limited exceptions exist—for instance, where the sentence falls outside statutory bounds, United States v.

Maurek, 661 F. App’x 553, 554 (10th Cir. 2016), or where

the Government declines to enforce the waiver, United

States v. Rickett, 535 F. App’x 668, 671 (10th Cir. 2013)

—these cases are outliers in a generally inflexible waiver

regime.

The Eleventh Circuit goes further still. It has expressly rejected a miscarriage-of-justice exception and

enforces waivers even where the sentencing condition

is plainly unauthorized. In United States v. King, the

court reaffirmed that a waiver bars all review unless

the issue is expressly preserved. 41 F.4th 1363, 1370

(11th Cir. 2022). This position echoes earlier rulings

in United States v. Bascomb, 451 F.3d 1292 (11th Cir.

2006), and United States v. Grinard-Henry, 399 F.3d

1294 (11th Cir. 2005), where the court enforced waivers

regardless of whether the challenged conditions were

lawful.

12

These decisions reflect a fundamental split over

whether appellate waivers bar review of sentencing

conditions that were never legally authorized. In some

circuits, defendants may challenge unlawful conditions

imposed without statutory authority. In others, they

are bound by waivers that preclude any review—no

matter how clearly the sentence exceeds what the law

allows. Certiorari is warranted to resolve this conflict

and to ensure that appellate waivers are not used to

shield illegal sentences from all judicial scrutiny.

II. THE UNLAWFUL SORNA REGISTRATION

CONDITION UNDERMINES THE VALIDITY OF THE

WAIVER AND CONSTITUTES PLAIN ERROR

Intertwined with the Eleventh Circuit’s refusal to

review Mr. Aquino’s claim on the basis of an appellate

waiver is a fundamental legal error—he is not required

to register under SORNA, making the registration

condition an illegal order. If he convicted of an offense

requiring registration, he would not be here challenging

the condition; it would not be an illegal sentence,

though the waiver issue would still exist. We are here

precisely because there is no statutory authority to

impose this condition.

The SORNA statute applies only to those convicted of qualifying “sex offenses.” Misprision of a felony

does not meet the statute’s definition of a sex offense.

Mr. Aquino pled guilty under 18 U.S.C. § 4, admitting

that he failed to report the possession of child sexual

abuse material. He was not convicted of a sex offense.

Yet the district court imposed the registration requirement based on conduct alleged in a dismissed count.

That exceeded the court’s statutory authority and

rendered the registration requirement unlawful. See

U.S. Const. amends. V & VI; United States v. Martinez-

13

Torres, 795 F.3d 1233, 1237 (10th Cir. 2015) and Alleyne

v. United States, 570 U.S. 99, 116 (2013) (requiring

any fact increasing a penalty to be found by a jury or

admitted by the defendant). The registration requirement imposes an additional penalty based on dismissed

charges, in excess of both statutory and constitutional

limits.

A. Federal Courts Have Rejected SORNA

Registration

Based

on

Unqualified

Convictions

In United States v. Icker, 13 F.4th 321, the Third

Circuit held that SORNA registration is impermissible where the offense of conviction does not meet the

statutory definition—even where the underlying conduct is sexual in nature. Defendant Icker was convicted

of depriving individuals of their civil rights under

color of law in connection with sexual abuse, but the

Third Circuit vacated the registration condition because

the offense of conviction was not a qualifying “sex

offense” under SORNA. Id. at 327. The Third Circuit

rejected the Government’s argument that the sexual

abuse was “related” to the charge of conviction, holding

instead that SORNA applies only when the elements

of the offense at conviction encompass the relevant

sexual conduct. Id. at 328. Even where the conduct is

tied to a broader pattern of sexual misconduct, or is

inextricably intertwined with the charged offense, that

connection is not enough to trigger registration under

SORNA unless it is reflected in supporting the statutory elements of the conviction.

The Fifth Circuit has engaged in an ongoing

dialogue about how to apply the scope of SORNA’s

definition of a “sex offense” in cases where the offense

14

of conviction does not fall squarely within that definition. But under either interpretive approach—categorical or circumstance-specific—the court has made

clear that sentencing courts may not look beyond the

offense of conviction and rely on dismissed conduct as

the basis for imposing a registration requirement. In

United States v. Baptiste, 34 F. Supp. 3d 662 (W.D.

Tex. 2014), the defendant was charged with abusive

sexual contact and pleaded guilty to making false

statements during a sex trafficking investigation. The

Government argued that the dismissed charges should

trigger SORNA registration, but the district court

found that the link between the dismissed charge and

the ultimate false statements conviction was too attenuated: the abusive sexual contact charges had been

dismissed; the conviction involved only false statements;

and there was no direct connection between the plea

and any qualifying sex offense. The district court concluded that the offense did not meet the definition of

a “sex offense” under SORNA, under either the categorical approach or a circumstance-specific one. It further

held that SORNA’s residual clause—(§ 20911(7)(I))

covering offenses “involving” certain conduct—did not

apply, both because the conviction lacked sexual elements and because the conduct, even if accepted as true,

failed to meet the statutory standard. The district

court declined to impose registration based solely on

allegations, emphasizing that SORNA conditions must

be grounded in a conviction that meets the statutory

definition.

In United States v. Schofield, 802 F.3d 722 (5th

Cir. 2015), the Fifth Circuit acknowledged Baptiste

but applied a different analysis, ultimately reaching a

similar result regarding how closely the alleged “sex

15

offense” conduct must relate to the conviction to

trigger SORNA registration. Schofield was convicted

attempted transfer of obscene material to a minor.

While the offense may not have satisfied the categorical

approach applied in some SORNA cases, the court found

it within the residual clause as an offense involving

conduct with a minor. The panel did not resolve whether the categorical or circumstance-specific approach

governs in this context but held that the offense inherently involved an attempt to commit a sexual offense

against a minor and therefore qualified. In doing so,

the court cast doubt on the analysis in Baptiste but

grounded its holding in the applicability of the residual

clause, essentially concluding that when the intent

element of the offense of conviction involves sex with

a minor, registration is required.

Other courts have adopted a similar approach,

recognizing that SORNA’s residual clause allows for a

limited circumstance-specific inquiry in certain contexts.

In United States v. Thayer, 40 F.4th 797 (7th Cir.

2022), the Seventh Circuit held that where the statute

refers to conduct “by its nature,” courts may examine

the factual basis of the conviction to determine

whether registration is required. In adopting that

approach, the Seventh Circuit required that only the

conduct underlying the conviction be considered. The

defendant had pled guilty to fourth-degree criminal

sexual conduct under Minnesota law, which the district

court found did not categorically qualify as a sex

offense under SORNA. The Seventh Circuit reversed,

but only after concluding that the adjudicated facts—

based on the plea record and proffer—fell within

§ 20911(7)(I). Id. at 803. While the Minnesota statute

itself did not necessarily meet SORNA’s definition,

16

the court found registration appropriate based solely

on what Thayer admitted to in his plea—not on any

extrinsic or uncharged conduct.

The Ninth Circuit has taken a similar approach.

In United States v. Byun, 539 F.3d 982 (9th Cir. 2008),

the defendant was convicted of importation of an alien

for purposes of prostitution—a statute that does not,

on its face, reference minors or sexual abuse. The

question before the court was whether the offense, as

applied, qualified as a “specified offense against a minor”

under § 20911(7)(I) of SORNA. Although the statute

of conviction did not explicitly involve a minor, the

factual basis for the plea established that the individual

imported was, in fact, a minor, and that the offense

involved commercial sexual exploitation. The Ninth

Circuit upheld the registration condition, finding that

the offense “involved” conduct described in the residual

clause. Id. at 992. In doing so, the court applied a noncategorical approach but limited its review to the facts

admitted in connection with the conviction.

In United States v. Becker, 682 F.3d 1210 (9th Cir.

2012), the Ninth Circuit applied a modified categorical

approach to determine whether the defendant’s offense

qualified as a sex offense under SORNA. Although the

statute of conviction—knowingly taking or receiving

obscene matters from an interactive computer service—

did not on its face involve a minor, Becker admitted

during his plea colloquy that he had downloaded child

pornography. The court held that this admission brought

the offense within the scope of SORNA, which defines

possession of child pornography as a “specified offense

against a minor.” Relying on Byun and Snellenberger,

the Ninth Circuit concluded that under its modified

categorical approach, it could consider the plea colloquy

17

in determining whether the statutory elements, as

applied, triggered SORNA. Because Becker’s own admissions established that he committed a qualifying sex

offense under SORNA, the district court was required

to impose registration as a mandatory condition of

supervised release pursuant to 18 U.S.C. § 3583(d).1

The court then turned to an alternative ground

and considered whether the imposition of SORNA

registration as a discretionary condition of supervised

release constituted plain error. Even assuming the registration requirement was not mandatory, the court

held that the district court did not err by imposing it

as a reasonable discretionary condition, finding that

the registration requirement was justified by Becker’s

admissions during the plea colloquy. Those admissions—

specifically, that he had downloaded child pornography

—established conduct that independently qualified as

a sex offense under SORNA. Because the condition was

supported by the record and Becker failed to show it

was unreasonable, the Ninth Circuit declined to grant

relief—while also noting that registration was, in fact,

appropriate under the statute.

And, up until the district court-imposed registration in this case, even the Eleventh Circuit—often cited

1 Although Byun and Becker remain good law, their conductbased reasoning is limited by this Court’s subsequent decision in

United States v. Castleman, 572 U.S. 157 (2014), which emphasized

the primacy of statutory text and cautioned against stretching

statutory predicates beyond Congress’s intent. See also United

States v. Gonzalez-Medina, 757 F.3d 425, 432 (5th Cir. 2014)

(applying Castleman to hold that the rule of lenity applies only

where “grievous ambiguity” remains after applying traditional

interpretive tools, and limiting conduct-based analysis to what is

anchored in the conviction itself).

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as a leading authority endorsing a noncategorical

reading of SORNA—limited registration to conduct

admitted in connection with the offense of conviction.

In United States v. Dodge, 597 F.3d 1347 (11th Cir.

2010), the court upheld SORNA registration only

because the defendant pleaded guilty to transmitting

obscene material to a minor, and the admitted conduct

—sending webcam images of himself masturbating to

someone he believed was thirteen—fell squarely within

the statutory definition of a sex offense. Id. at 1353–

55. The Eleventh Circuit did not permit registration

based on dismissed or uncharged conduct but required

a direct nexus between the offense of conviction and

the qualifying sexual conduct. Id. at 1350.

B. Because the Registration Requirement Is

Unlawful, the Eleventh Circuit’s Waiver

Analysis Is Erroneous

When a supervised release condition imposes a

statutory obligation—such as sex offender registration

under SORNA—without a qualifying conviction, the

error is not merely procedural but structural. If the

underlying offense does not meet the statutory definition

of a “sex offense” under SORNA or the convicted offense

is not supported by facts admitting to a sex offense, a

court has no legal authority to impose that condition.

A defendant cannot be subject to a registration regime

that Congress expressly limited to specific categories

of convictions. Where a court imposes a consequence

tied to a statutory trigger that is absent—under a

categorical or circumstance-specific analysis—it exceeds

its authority, and the resulting error constitutes a

miscarriage of justice. Such a defect implicates the

integrity of the proceeding itself and warrants correction

19

because it imposes a legal disability based on conduct

that does not qualify under governing law.

The district court in this case explicitly relied on

conduct from a dismissed charge—conduct for which

Mr. Aquino was never convicted. That approach is

inconsistent with the statutory structure of SORNA and

with Alleyne. And while the Eleventh Circuit declined

to address the error due to an appellate waiver, that

refusal only compounds the underlying problem: it

allows plainly unlawful sentencing conditions to stand,

despite this Court’s longstanding recognition that

sentencing courts may not impose conditions that

Congress has not authorized.

As the Tenth Circuit explained in Martinez-Torres,

when a registration condition is not supported by the

conviction, it is “an error of law that must be vacated.”

795 F.3d at 1237. The same principle applies here. The

SORNA condition was imposed in excess of statutory

authority and in violation of constitutional protections.

It imposes lasting legal and reputational consequences

on Mr. Aquino based on charges he was never found

guilty of. This Court’s intervention is warranted to

resolve the conflict among courts and to reaffirm that

sentencing conditions must be tethered to statutory

authority.

III. THIS CASE IS AN IDEAL VEHICLE TO RESOLVE

THE CIRCUIT SPLIT

This case presents a compelling opportunity for

the Court to resolve a deepening circuit split regarding the enforceability of appellate waivers in the face

of plainly unlawful sentencing conditions. The legal

question is squarely preserved and cleanly presented:

whether a general appellate waiver can bar review of

20

a sentencing condition that exceeds statutory authority—specifically, a requirement to register under

SORNA for an offense that does not qualify under the

statute.

The record below is complete, with no factual disputes or procedural complications that would obscure

the legal issue. The district court ruled on the applicability of SORNA, the Eleventh Circuit enforced the

appellate waiver even though the condition was imposed

for a non-qualifying offense, and Mr. Aquino raised

the precise argument at each stage of the proceedings.

Moreover, the question has significant and enduring consequences. SORNA registration is not a minor

or technical sentencing detail; it imposes severe, often

lifelong, collateral consequences. It restricts housing,

employment, and movement, and subjects registrants

to public exposure and criminal penalties for noncompliance. Requiring SORNA registration for a nonqualifying offense is not only unauthorized by statute

but imposes lasting penalties based on conduct the

Government chose not to pursue to conviction.

Without this Court’s intervention, defendants in

different jurisdictions will continue to face drastically

different outcomes based solely on geography—some

protected from unlawful conditions, others locked out

of appellate review despite statutory violations. This

petition provides a timely and unencumbered vehicle

to resolve this important and recurring issue.

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CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Michael Schwartz

Counsel of Record

Karin Kissiah

NEW SOUTH LAW, LLC

1305 Barnard Street #203

Savannah, GA 31401

(912) 581-1999

mas@newsouthlaw.net

karin@newsouthlaw.net

Counsel for Petitioner

July 18, 2025