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U.S. vs. Ensminger, No. 08-30183 (6-3-09). Defendant plead guilty to a sex offender registration (SORNA) charge. As sentencing approached, a district court in the M.D. Fla held that SORNA was unconstitutional because it was outside of congressional commerce clause authority. The defendant sought to withdraw his guilty plea as this was a "fair and just" reason under Rule 11 and not a lark. "No" said the district court, sentencing him to 21 months, and scoffing at the other decision because it was out of district, out of circuit, and not convincing. The 9th (Tallman joined by W. Fletcher and Gould) found no abuse of discretion. The 9th discussed the standards for withdrawal. It recognized that a transformative decision, like from the Supremes, or circuit changes, present a fair and just reason. Here, though, the decision was non-precedential, non-binding, and from another court. The 9th noted that the constitutionality issue had been raised in other courts and circuits, and defense counsel was aware. The 9th only focused on whether the court abused its discretion to allow withdrawal, and explicitly did not decide the constitutionality of SORNA. That is left open for another appeal, and another panel.

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