Case: 14-31323       Document: 00513144087         Page: 1     Date Filed: 08/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                       FILED
                                                                                   August 6, 2015
                                     No. 14-31323
                                   Summary Calendar                                 Lyle W. Cayce
                                                                                         Clerk


UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MICHAEL THOMAS CUPP,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:14-CR-15-1


Before BARKSDALE, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Michael Thomas Cupp challenges his conviction and sentence following
his conditional guilty plea for failure to update his sex-offender registration
after traveling in interstate commerce (Louisiana to Texas), in violation of 18
U.S.C. § 2250(a). Cupp was sentenced above the advisory sentencing range
under the Sentencing Guidelines to, inter alia, 60 months’ imprisonment.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
    Case: 14-31323       Document: 00513144087    Page: 2    Date Filed: 08/06/2015


                                  No. 14-31323

      Cupp asserts the district court erred by denying his motion to dismiss
the indictment for lack of subject-matter jurisdiction. He contends federal
jurisdiction existed only if he was required to register as a sex offender in Texas
and failed to do so within three business days. Because he did not live, work,
or attend school in Texas, he maintains he was not required to register there.
He also asserts that, for federal jurisdiction to exist, he must have first traveled
in interstate commerce, then failed to register in the new jurisdiction. Cupp
contends, to the extent he failed to comply with Louisiana’s registration
requirements, only Louisiana law is implicated, and not 18 U.S.C. § 2250(a).
He does not challenge his status as a sex offender, or the requirement that he
register in Louisiana.
      “We review the sufficiency of an indictment de novo, taking the
indictment’s allegations as true.” United States v. Ratcliff, 

, 643
(5th Cir. 2007); see also United States v. Whaley, 

, 256-57 (5th Cir.
2009).   The Sex Offender Registration and Notification Act (SORNA) was
enacted in 2006 to prevent sex offenders from escaping registration through
interstate travel.   Whaley, 557 F.3d at 259-60 (citing 42 U.S.C. § 16901).
SORNA provides that a convicted sex offender who is required to register and
travels in interstate commerce must update his registration.             18 U.S.C.
§ 2250(a). Further, the sex offender must register, or update his registration,
in each jurisdiction where he resides within three business days after a change
of residence. 42 U.S.C. § 16913(a), (b)(2).
      After Cupp traveled to Texas in April 2009, he was subject to SORNA’s
registration requirement that he update his registration in Louisiana within
three business days of his travel because he was a sex offender. See Carr v.
United States, 

, 446-47 (2010).         Therefore, the district court




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    Case: 14-31323      Document: 00513144087     Page: 3   Date Filed: 08/06/2015


                                   No. 14-31323

properly denied Cupp’s motion to dismiss the indictment for lack of
jurisdiction.
         Cupp also asserts the court imposed a substantively unreasonable
sentence of, inter alia, 60 months’ imprisonment because it was above the
advisory sentencing range of 18-24 months.           Although post-Booker, the
Guidelines are advisory only, and a properly preserved objection to an ultimate
sentence is reviewed for reasonableness under an abuse-of-discretion
standard, the district court must still properly calculate the advisory
Guidelines-sentencing range for use in deciding on the sentence to impose.
Gall v. United States, 

, 51 (2007). In that respect, for issues
preserved in district court, its application of the Guidelines is reviewed de novo;
its factual findings, only for clear error.     E.g., United States v. Cisneros-
Gutierrez, 

, 764 (5th Cir. 2008). Cupp does not claim procedural
error.
         In claiming his sentence was substantively unreasonable, Cupp
contends: the court should not have considered the length of time he did not
register in Louisiana; it improperly considered the need to deter others; the
Guidelines account for special offense characteristics like his; and, to the
extent his conduct was more egregious than the conduct of other sex offenders,
a sentence near the high end of the sentencing range was more appropriate.
         We consider the substantive reasonableness of the sentence in the light
of the 18 U.S.C. § 3553(a) factors. Gall, 552 U.S. at 49–52. In imposing an
above-Guidelines sentence, the court permissibly considered the need to deter
Cupp and others like him, as well as the tactics Cupp used in committing the
instant offense. E.g., United States v. Fraga, 

, 440 (5th Cir. 2013);
United States v. McElwee, 

, 338 (5th Cir. 2011).
         AFFIRMED.



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