D.C. No. No. 09-30135 Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding
Submitted March 7, 2011*fn1 Portland, Oregon
Before: Sidney R. Thomas, Susan P. Graber, and Richard C. Tallman, Circuit Judges.
Defendant Jeffrey Dean Fernandes pleaded guilty to one count of abusive sexual contact, a violation of 18 U.S.C. § 2244(b). While working as a privately employed security guard at Crater Lake National Park, Defendant went into a dorm room where an intoxicated co-worker lay on the bed. Without her permission, Defendant unbuttoned her blouse. He fondled and kissed her breasts. He also touched the woman's vagina over her pants. Defendant stopped the abuse when two of his co-workers walked in and caught him in the act.
The district court sentenced Defendant to a term of probation. The government asked the court to require Defendant to register as a sex offender, but the court refused. The court observed that Defendant had no prior convictions for sex offenses and found Defendant unlikely to repeat such an offense. In those circumstances, the court did not see a need to force Defendant to register as a sex offender and refused to order Defendant to do so. The government timely appeals that decision.
 We review de novo the legality of a sentence. United States v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991).
Title 18 U.S.C. § 3563(a) provides in relevant part:
The court shall provide, as an explicit condition of a sentence of probation- . . . .
(8) for a person required to register under the Sex Offender Registration and Notification Act [42 U.S.C. §§ 16911-16929], that the person comply with the requirements of that Act[.]
A person must register if the person's conviction renders the person a "sex offender." 42 U.S.C. § 16913(a). A "sex offender" is "an individual who was convicted of a sex offense." Id. § 16911(1). A "sex offense" is "a criminal offense that has an element involving a sexual act or sexual contact with another." Id. § 16911(5)(A)(I). A violation of § 2244(b) thus unquestionably suffices to trigger § 3563(a)(8).
Defendant does not dispute that his conviction makes him a sex offender, rendering § 3563(a)(8)'s registration requirement applicable to him. Yet, for three reasons, Defendant argues that the district court did not err by refusing to require his registration. None of those reasons persuades us.
 First, relying principally on United States v. Booker, 543 U.S. 220 (2005), and Kimbrough v. United States, 552 U.S. 85 (2007), Defendant asks us to read the registration requirement in § 3563(a)(8) as discretionary, despite § 3563(a)(8)'s clear directive that the district court shall require persons such as Defendant to register as sex offenders as a condition of probation. Although the Supreme Court held in Booker and reaffirmed in Kimbrough that the federal Sentencing Commission may not compel the judiciary to pass a particular sentence for a specified crime, the Court has held that Congress may. See Mistretta v. United States, 488 U.S. 361, 364 (1989) ("Congress, of course, has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect to a sentence is subject to congressional control." ...