EFTA00730634.pdf

Westlaw. Page I 589 F.3d 86 (Cite as: 589 F.3d 86) H United States Court of Appeals, 111 Constitutional Law 92 €4509(1) Second Circuit. UNITED STATES of America, Appellee, 92 Constitutional Law v. 92XXVII Due Process Travis S. HESTER, Defendant-Appellant. 92XXVII(H) Criminal Law Docket Nos. 08-4665-cr(L), 08-4667-cr(con). 92XXVII(H)2 Nature and Elements of Crime Submitted: June 16, 2009. 92k4502 Creation and Definition of Decided: Dec. 16, 2009. Offense 92k4509 Particular Offenses Background: Following denial of motion to dismiss 92k4509(1) k. In general. Most the indictment in the United States District Court for Cited Cases the Northern District of New York, Shame J. 2008 WL 351677, defendant pled guilty to traveling in Mental Health 257A €='469.5 interstate commerce and failing to register or update his sex offender registration in violation of the Sex 257A Mental Health Offender Registration and Notification Act (SORNA) 257AIV Disabilities and Privileges of Mentally and making a false statement in the acquisition of a Disordered Persons firearm. Defendant appealed. 257AIV(E) Crimes 257Ak469.5 k. Offenses and prosecutions. Holdings: The Court of Appeals held that: Most Cited Cases al as a matter of first impression in the circuit, Defendant's due process rights were not violated when defendant's due process rights were not violated even he was convicted of failing to register as a sex though he claimed he had no actual knowledge of offender under SORNA when he relocated from New SORNA's registration requirements; York to Florida, even though he claimed he had no 21 as a matter of first impression in the circuit, actual knowledge of the registration requirements; defendant's due process rights were not violated even defendant knew that under state law he had to update though New York and Florida had not yet his registration in New York and that he had to register implemented SORNA; and as sex offender in new state if he moved and defendant (11 defendant waived his right to raise on appeal new had complied with the state law requirements on four constitutional challenges to the indictment. separate occasions. U.S.C.A. Const.Amend. 5- 18 U.S.C.A. 5 2250(a); Sex Offender Registration and Affirmed. Notification Act, § 113(a), 42 U.S.C.A. § 16913(a). West Headnotes 11 Constitutional Law 92 €4509(1) fll Criminal Law 110 €1139 92 Constitutional Law 92XXVII Due Process 110 Criminal Law 92XXVII(H) Criminal Law 1 I0XXIV Review 92XXVII(H)2 Nature and Elements of 110XXIV(L) Scope of Review in General Crime I 1 0XXIV(L113 Review De Novo 92k4502 Creation and Definition of 110k1139 k. In general. Most Cited Offense Cases 92k4509 Particular Offenses The Court of Appeals reviews questions of 92k4509(1) k. In general. Most constitutional interpretation de novo. Cited Cases (O 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730634  Page 2 589 F.3d 86 (Cite as: 589 F.3d 86) of counsel), Office of the United States Attorney for Mental Health 257A 'C='469.5 the Northern District of New York, Syracuse, NY, for the United States of America. 257A Mental Health 257A1V Disabilities and Privileges of Mentally *88 Before: WINTER CABRANES, and HALL Disordered Persons Circuit Judges. 257AIV(E) Crimes 257Ak469.5 k. Offenses and prosecutions. PER CURIAM: Most Cited Cases Defendant's due process rights were not violated when Defendant-appellant Travis S. Hester ("defendant" or he was convicted of failing to register as a sex "Hester") appeals from a September 16, 2008 offender under SORNA when he relocated from New judgment entered in the United States District Court York to Florida, even though New York and Florida for the Northern District of New York (Sharpe, J.), had not yet implemented SORNA, where both New convicting him, following a guilty plea, of two counts York and Florida had state sex offender registration of traveling in interstate commerce and failing to programs in effect during relevant time period. 18 register or update his sex offender registration in U.S.C.A. & 2250(a)- U.S.C.A. Const.Amend. 5- Sex violation of the Sex Offender Registration and Offender Registration and Notification Act, § 113(a), Notification Act ("SORNA"), 18 U.S.C. § 2250(a), 42 U.S.C.A. § 16913(a). and one count of making a false statement in the acquisition of a firearm, in violation of 18 U.S.C. Ell Criminal Law 110 C=11026.10(5) 922(a)(6). As part of the plea agreement, Hester expressly agreed to waive his right to appeal his 110 Criminal Law conviction and sentence if he received a sentence of 51 I IOXXIV Review months' imprisonment or less, but reserved the right to I 10XXIV(D) Right of Review appeal the district court's February 7, 2008 order 110k1025 Right of Defendant to Review denying his motion to dismiss the indictment.EN-1 The 110k1026.10 Waiver or Loss of Right district court sentenced Hester principally to a term of 110k1026.10(21 Plea of Guilty or 37 months' imprisonment On appeal, Hester argues Nolo Contendere that (1) his prosecution for failure to register as a sex 110k1026.10(5) k. Contingent or offender under 18 U.S.C. § 2250(a) violated his right conditional plea; reservation of right. Most Cited to due process of law under the Fifth Amendment of Cases the U.S. Constitution- (2) 18 U.S.C. § 2250(a) and the Defendant waived his right to raise on appeal new registration requirements of SORNA 42 U.S.C. k constitutional challenges to the indictment when he 16913(a), violate the Commerce Clause of the U.S. pled guilty to failing to register as a sex offender under Constitution; and (3) IS U.S.C. § 2250(a) is SORNA; defendant reserved only his right to appeal unconstitutionally vague. Hester's due process the order that denied his motion to dismiss the argument presents a question of first impression for indictment, and in his motion to dismiss the this Court. For the reasons stated below, we conclude, indictment defendant raised only a due process claim. as have all of our sister circuits that have considered U.S.C.A. Const.Amend. 5- 18 U.S.C.A. § 2250(a); the issue, that prosecution for failure to register as a Sex Offender Registration and Notification Act, § sex offender under 18 U.S.C. § 2250(a) does not 113(a), 42 U.S.C.A. § 16913(a). violate the right to due process of law. With respect to *87 Timothy E. Austin Assistant Federal Public Hester's two remaining arguments, we conclude that Defender (Molly Corbett, on the brief), Office of the those were waived pursuant to the plea agreement. Federal Public Defender, Albany, NY, for Travis S. Accordingly, we affirm the judgment of the district Hester. court. Brenda K. Sannes Assistant United States Attorney FN I. Hester also reserved the right to (Andrew T. Baxter, Acting United States Attorney for collaterally attack his conviction and the Northern District of New York, on the brief, sentence in the event that 18 U.S.C. § 2250 Thomas Spina. Jr. Assistant United States Attorney, was subsequently declared unconstitutional 0 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730635  Page 3 589 F.3d 86 (Cite as: 589 F.3d 86) by either this Court or the Supreme Court. York and charged with two counts of violating 18 U.S.C. § 2250(a), for failure to update and register as a BACKGROUND sex offender pursuant to SORNA. The applicable requirements provide that "[a] sex offender shall On October 13, 2006, Hester pleaded guilty in register, and keep the registration current, in each jurisdiction where the offender resides, where the Schenectady City Court to Sexual Abuse in the Third Degree, in violation of N.Y. Penal Law § 130.55 and offender is an employee, and where the offender is a Forcible Touching, in violation of N.Y. Penal Law § student." 42 U.S.C. 6 16913(a). Hester's two charged counts were based upon his failure to update his 130.52. Hester was sentenced principally to 90 days imprisonment on the first charge and 60 days registration in New York (Count 1) and failure to imprisonment on the second charge. As a result of register in Florida (Count 2). Hester filed a motion to these convictions, Hester was required to register as a dismiss the indictment, arguing, inter olio, that his sex offender in New York State, which he did on prosecution for failure to register as a sex offender December 7, 2006. Specifically, Hester signed a New under IS U.S.C. § 2250(a) violated his right to due York State "Sex Offender Registration Form," which process of law because he did not have actual notice of enumerated all of Hester's "duties as a sex offender," SORNA. Specifically, Hester argued that although including that SORNA was enacted on July 27, 2006-three months before he pleaded guilty to the underlying sexual offenses-neither New York nor Florida had You must notify [the Division of Criminal Justice implemented a SORNA-compliant registry at the time Services] in writing of any change of home address of his July 2007 arrest. Accordingly, Hester argued no later than 10 days after you move. (NOTE: that "a reasonable person reading the entirety of the Change of address forms are available at your local SORNA legislation would be. at best, confused about law enforcement agency, parole or probation office, whether there is a present obligation to register under or from [the Division of Criminal Justices SORNA" and that his prosecution for failure to Services].) If you move to another state, you must register under SORNA would be a violation of due register as a sex offender within 10 days of process. J.A. 30 (Def.'s Mot. to Dismiss and Suppress establishing residence. You must also register in any Statements, Dec. 13, 2007). state in which you are employed or are a student. The district court denied Hester's motion to dismiss Hester initialed each of the specific requirements the indictment. See United States v. Hester. No. listed on the form. Additionally, he signed his name 07-cr-376 (GLS). 2008 WL 351677 (N.D.N.Y. Feb. 7 below the statement, "I understand I have a duty to 2008). First, the district court stated that "[w]hile it *89 register and my duties were explained to me." may be true that the states have until July 2009 to implement certain administrative portions of Between January 18, 2007 and April 10, 2007, Hester [SORNA], the statute itself became effective in July filed four New York State Sex Offender Change of 2006. Therefore, whether mandated by New York, Address forms. After April 10, 2007, however, New Florida or SORNA, registering is not optional." Id. at York State officials were unable to locate him. On *2. The district court also found that "Hester had April 12, 2007, the Schenectady County Probation sufficient notice that failure to register and update his Department concluded that Hester had absconded registration was illegal.... The record is clear that he from supervision and relocated to Florida. A New knew he had to register and failed to do so." Id. York State judge issued an arrest warrant for Hester Because the district court determined that "it is not based upon a petition that alleged probation violations. necessary for a defendant to know precisely which On July 12, 2007, Hester was arrested in Florida on a statute he is violating in order to be held liable under charge of making a false statement in connection with the law," it concluded that "it is irrelevant whether the purchase of a firearm. During questioning after his Hester knew specifically that he was in violation of arrest, Hester stated that he had moved to Florida SORNA." Id. approximately two to three months earlier and that he had not registered as a sex offender when he moved. Pursuant to a plea agreement, Hester pleaded guilty to two counts of violating 18 U.S.C. § 2250(a). At the Hester was indicted in the Northern District of New 43 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730636  Page 4 589 F.3d 86 (Cite as: 589 F.3d 86) same time, he also pleaded guilty to one count of to comply with its registration requirements. Section making a false statement in the acquisition of a 2250(a) states: firearm, in violation of 18 U.S.C. § 922(a)(6), the crime that led to his July 2007 arrest. As part of the Whoever- plea agreement, Hester expressly agreed to waive his right to appeal his conviction and sentence if he (1) is required to register under the Sex Offender received a sentence of 51 *90 months' imprisonment Registration and Notification Act; or less, but he reserved the right to appeal the district court's February 7, 2008 order denying his motion to dismiss the indictment.au On September 16, 2008, the (2) (A) is a sex offender as defined for the purposes district court sentenced Hester principally to 37 of the Sex Offender Registration and Notification months' imprisonment on each count, to run Act by reason of a conviction under Federal law concurrently. Hester filed a timely notice of appeal. (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the FN2. See supra, note I. United States; or DISCUSSION (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and W Hester makes three main arguments to this Court on appeal: (1) his prosecution for failure to register as (3) knowingly fails to register or update a a sex offender under 18 U.S.C. § 2250(a) violated his registration as required by the Sex Offender constitutional right to due process of law; (2) 18 Registration and Notification Act; U.S.C. 5 2250(a) and the registration requirements of SORNA 42 U.S.C. § 16913(4 violate the Commerce Clause to the Constitution; and (3) 18 U.S.C. § shall be fined under this title or imprisoned not more 2250(a) is unconstitutionally vague. Hester's due than 10 years, or both. process argument presents a question of first impression for this Court. We consider each argument 18 U.S.C. § 2250(a). SORNA also creates standards in turn, and we review questions of constitutional for the registration programs of all jurisdictions.m interpretation de novo. See United States v. Stein 541 See 42 U.S.C. 5 16912(a). Each jurisdiction was to F.3d 130. 146 (2d Cir.2008); United States v. King. implement the standards set forth in SORNA *91 by 276 F.3d 109. I 1 1 (2d Cir.2002). July 27, 2009. See 42 U.S.C. § 16924(a)(1). Although neither New York nor Florida had implemented the I. Statutory Overview specific requirements set forth in SORNA during the time period charged in the indictment, both states had sex offender registration programs that complied with On July 27, 2006, Congress enacted the Adam Walsh the federal Jacob Wetterling Act, 42 U.S.C. § 14071. Child Protection and Safety Act of 2006 ("the Walsh et seq., which was the statutory precursor to SORNA. Act"), Pub.L. No. 109-248. 120 Stat. 587. Title I of the Walsh Act codified SORNA, the declared purpose of which is to "protect the public from sex offenders and FN3. "Jurisdiction" is defined to include: a offenders against children ... [by] establish [ing] a state, the District of Columbia, the comprehensive national system for the registration of Commonwealth of Puerto Rico, Guam, America Samoa, the Northern Mariana those offenders." 42 U.S.C. § 16901. Pursuant to SORNA, individuals who have been convicted of a Islands, the United States Virgin Islands, and sex offense must register "in each jurisdiction where federally recognized Indian tribes that elect to function as "registration jurisdictions."See the offender resides, where the offender is an employee, and where the offender is a student," and 42 U.S.C. §§ 16911(10); 16927. must keep his or her registration current by updating the relevant jurisdiction after each change of name, II. Defendant's Due Process Claim residence, employment, or student status. 42 U.S.C. 16913. SORNA provides criminal penalties for failing Under the Fifth Amendment to the U.S. Constitution, O 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730637  Page 5 589 F.3d 86 (Cite as: 589 F.3d 86) no person shall be "deprived of life, liberty, or Brown. 586 F.3d 1342 (1I th Cir. 20091. The Court of property, without due process of law." Hester argues Appeals concluded that "notice of a duty to register that his prosecution for failure to register as a sex under state law is sufficient to satisfy the Due Process offender under 18 U.S.C. § 2250(a) violated his right Clause." Id. at 1351. That court thus rejected Brown's to due process for two principal reasons. First, he lack of notice argument because "[Brown] had actual argues that he "cannot be required to register is [sic] knowledge that he had a duty to register in Alabama." he had no actual knowledge of the requirement that he Id. Moreover, the Eleventh Circuit expressly rejected register." Second, Hester argues that his prosecution the same argument that Hester asserts here-that a violated his due process right because neither New conviction under 18 U.S.C. § 2250(a) can be York nor Florida had implemented SORNA's challenged as a violation of due process under registration program requirements during the relevant Lambert. Id. at 1351 ("In addition to actual notice, period, and thus, compliance with SORNA was there were sufficient circumstances to prompt Brown "impossible for him." to have inquired upon his duty to register."). Accordingly, the Eleventh Circuit reached *92 the It is well-established that ignorance of the law is not a same conclusion as each of the other circuits to have valid defense to a criminal prosecution. See, e.g., considered this issue-that a due process challenge to a Cheek v. United States. 498 U.S. 192. 199. III S.Ct. conviction under 18 U.S.C. § 2250(a) based upon a 604, 112 L.Ed.2d 617 (1991) ("The general rule that lack of notice is without merit. See United States v. ignorance of the law or a mistake of law is no defense Whaley. 577 F.3d 254. 262 (5th Cir.2009)- United to criminal prosecution is deeply rooted in the States v. Gould. 568 F.3d 459. 468-69 (4th Cir.2009), American legal system."). In Lambert v. California petition for cert. filed (U.S. Sept. 25, 2009) (No. 355 U.S. 225. 78 S.Ct. 240.2 L.Ed.2d 228 (1957), the 09-6742)- United States v. Dixon. 551 F.3d 578. 584 Supreme Court carved a narrow exception to this rule, (7th Cir.2008) cert. granted, Carr v. United States. — holding that a municipal ordinance that made it a U.S. 130 S.Ct. 47, 174 L.Ed.2d 631, 2009 WL crime for a convicted felon to remain in Los Angeles 1095868 (U.S. Sept. 30. 2009) (No. 08.1301); United for five days without registering with the Chief of States v. Hinckley. 550 F.3d 926.938 (10th Cir.2008), Police violated defendant's due process right. Id. at cert. denied, --- U.S. ----. 129 S.Ct. 2383. 173 L.Ed.2d 229. 78 S.Ct. 240. The Court highlighted the 1301 (2009); United States v. May, 535 F.3d 912, 921 importance ofnotice in registration statutes that do not (8th Cir.2008), cert. denied, -- U.S. 129 S.Ct. have a requisite mens rea, stating: "[e]ngrained in ow 2431. 174 L.Ed.2d 229 (2009). concept of due process is the requirement of notice. Notice is sometimes essential so that the citizen has a The Courts of Appeals for the Eleventh, Fourth, chance to defend charges." M. at 228.78 S.Ct. 240. A Seventh and Tenth Circuits have also addressed defendant, therefore, may be able to defend against Hester's second argument (Le., the "impossibility" criminal charges on the basis that he was ignorant of argument). In Brown the Eleventh Circuit rejected the law if the circumstances surrounding the Brown's argument that SORNA did not apply to him prosecution meet the limited exception carved out in because Alabama had not yet implemented it, noting Lambert. Our Court has not previously had an that the argument "fails to appreciate the distinction opportunity to consider whether 18 U.S.C. & 2250(a) between a jurisdiction's duty to implement SORNA violates the Due Process Clause, although we note that and a sex offender's duty to register." 586 F.3d 1342 several of our sister circuits have considered and (citing Gould. 568 F.3d at 4641. That court explained rejected these arguments. that "a jurisdiction's failure to implement SORNA results in a loss of federal funds, 'not in an excuse for With respect to Hester's first argument (Le., he was an offender who has failed to register.' " M (quoting ignorant of the law), several of our sister circuits have Hinckley. 550 F.3d at 939). Accordingly, the Eleventh recently addressed similar claims. Most recently, the Circuit held that "a sex offender is not exempt from Eleventh Circuit considered a due process challenge to SORNA's registration requirements merely because a conviction under IS U.S.C. § 2250(a) on the basis of the jurisdiction in which he is required to register has a lack ofnotice asserted by a sex offender who moved not yet implemented SORNA." Id. at 1349: see Gould from North Carolina to Alabama, but failed to register 568 F.3d at 463-66 (SORNA applies to defendant in Alabama after his move. See United States v. even though Maryland had not yet implemented it); Dixon, 551 F.3d at 582 (defendant required by 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730638  Page 6 589 F.3d 86 (Cite as: 589 F.3d 86) SORNA to register with Indiana despite Indiana's state, you must register as a sex offender within 10 failure "to establish any procedures or protocols for days of establishing residence." Moreover, Hester the collection, maintenance, and dissemination of the complied with these requirements on four separate detailed information required by the Act")- Hinckley. occasions by filing a New York State Sex Offender 550 F.3d at 939 (defendant required to register under Change of Address Form. Accordingly, Hester's SORNA even though Oklahoma had not statutorily reliance on Lambert is misplaced. The fact that Hester implemented SORNA). The Brown Court concluded did not receive notice of SORNA is not sufficient to that "[a]n individual may ... comply with SORNA's render his prosecution for failure to register as a sex registration requirements by registering through the offender under 18 U.S.C. § 2250(a) a violation of his state's sex offender registry, even if that jurisdiction due process rights. has not implemented SORNA's administrative procedures." Brown. 586 F.3d 1342, 1349. Indeed, the L3_1 With respect to Hester's argument that registering court noted that "SORNA was not enacted in a under SORNA was impossible to accomplish, we also vacuum. To the contrary, every state and the District agree with our sister circuits and hold that compliance of Columbia had a sex offender registration law prior with SORNA is not "impossible" in light of the fact to 2006." Id. (citing Gould. 568 F.3d at 464). that the states at issue had a registration program. See Brown. 586 F.3d 1342- Gould. 568 F.3d at 464:Dixon al We are persuaded by and adopt the reasoning of 551 F.3d at 582- Hinckley 550 F.3d at 939. SORNA our sister circuits. That Hester had no actual notice of only obligates a sex offender to "register, and keep the SORNA is not sufficient to render his prosecution registration current, in each jurisdiction where the pursuant to that statute a violation of his due process offender resides, where the offender is an employee, rights. See, e.g. Cheek. 498 U.S. at 199. III S.Ct. and where the offender is a student." 42 U.S.C. 604. To the extent that the Supreme Court carved out a 16913(a). Here, Hester could have updated his limited exception to the rule that ignorance of the law registration information in New York and registered in is not a valid defense to its violation, see Lambert. 355 Florida, as both states had registration programs in U.S. 225. 78 S.Ct. 240.2 L.Ed.2d 228 Hestees failure effect during the relevant time period. That SORNA to comply with SORNA's registration requirements is also requires jurisdictions to update and improve their beyond that exception. In Lambert, the Supreme Court registration programs, and that New York and Florida stated: had not yet met those administrative requirements, does not excuse Hester's failure to meet the Registration laws are common and their range is registration requirements that SORNA imposes on wide.... But the present ordinance is entirely individual sex offenders and to register with the different. Violation of its provisions is programs that did exist. unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, For the foregoing reasons, we conclude that Hester's circumstances which might move one to inquire as prosecution for failure to register as a sex offender to the necessity of registration are completely under 18 U.S.C. § 2250(a) did not violate his due lacking. process rights. *93 Id. at 229. 78 S.Ct. 240. Like our sister circuits, III. Defendant's Commerce Clause and we find this last statement-regarding "circumstances Void-for-Vagueness Claims which might move one to inquire as to the necessity of registration"-to be critical. Here, as distinguished from Le Hester argues that his conviction is Lamben Hester knew he had to update his registration unconstitutional for two additional reasons: (1) 18 in New York and that he had to register as a sex U.S.C. 6 2250(a), and the registration requirements of offender in a new state if he moved. Indeed, he SORNA, 42 U.S.C. 6 16913(a), violate the Commerce initialed the specific requirements of the New York Clause; and (2) I8 U.S.C. § 2250(a) is Sex Offender Registration Form which stated: "You void-for-vagueness. Because we conclude that Hester must notify [the Division of Criminal Justice Services] waived his right to raise new constitutional challenges in writing of any change ofhome address no later than to the indictment, we do not reach these arguments. 10 days after you move.... If you move to another 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730639  Page 7 589 F.3d 86 (Cite as: 589 F.3d 86) As noted, Hester expressly agreed to waive his right to F.3d 110. 119 (2d Cir.2004) (permitting an appeal appeal his conviction and sentence if he received a from a defendant " `who has secured the benefits of sentence of 51 months' imprisonment or less, a plea agreement and knowingly and voluntarily reserving only his right to appeal the district court's waived the right to appeal' " would " 'render the February 7, 2008 order that denied his motion to plea bargaining process and the resulting agreement dismiss the indictment.F-1-9 Specifically, the plea meaningless.' ") (quoting United States v. agreement that he signed on March 21, 2008 states, in Salcido-Contreras. 990 F.2d 51. 53 (2d relevant part: Cir.19931).E141 FN4. See supra, note I. FNS. While we do not reach the issue, we note that the courts that have considered the Waiver of Appeal and Collateral Attack Commerce Clause argument have not been persuaded. See Whaley. 577 F.3d at 258 & n. The [d]efendant acknowledges that, after 1 (cases collected therein). consultation with defense counsel, he fully understands the extent of his rights to appeal, and/or CONCLUSION to collaterally attack •94 the convictions and sentences in this case.... The defendant reserves the For the foregoing reasons, we conclude that Hester's right to appeal so much of the Court's Decision and prosecution for failure to register as a sex offender Order of February 7, 2008, as denied his motion to under 18 U.S.C. § 2250(a) did not violate his dismiss the indictment.... Otherwise, the [d]efendant constitutional right to due process. We deem Hester's waives any and all rights, including those conferred remaining arguments waived pursuant to his plea by 18 U.S.C. & 3742 and/or 28 U.S.C. & 2255 to agreement. appeal or collaterally attack his convictions and any sentence of imprisonment of 51 months or less.... The judgment of the district court is affirmed. Because Hester received a sentence of less than 51 C.A.2 (N.Y.),2009. months' imprisonment, the requirements underlying U.S. v. Hester Hester's appeal waiver obtained. He does not attack 589 F.3d 86 the agreement nor suggest that his decision to sign it was anything other than knowing and voluntary. END OF DOCUMENT Hester, therefore, is left with only the right he reserved to challenge the district court's denial of his motion to dismiss the indictment. In that December 13, 2007 Motion to Dismiss the Indictment, Hester did not raise his Commerce Clause and void-for-vagueness arguments. Nor, since the motion was denied, has Hester made the arguments to the district court that he now seeks to advance here. Because he has not presented these arguments to the district court in the first instance and because the appeal waiver narrowly circumscribes what he may appeal, to wit, only "so much of the Court's Decision ... as denied his motion to dismiss the indictment," we deem these latter arguments waived. See Joseph v. Leavitt, 465 F.3d 87, 93.94 (2d Cir.2006) (citing Singleton v. Wulf. 428 U.S. 106. 120.96 S.Ct. 2868.49 L.Ed.2d 826 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.")); see also United States v. Mono n. 359 O 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. EFTA00730640