U.S. v. George

• Decision Date: 25 August 2009
• Docket Number: No. 08-30339.,08-30339.
• Citation: 579 F.3d 962
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Phillip William GEORGE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

579 F.3d 962

UNITED STATES of America, Plaintiff-Appellee, v. Phillip William GEORGE, Defendant-Appellant.

No. 08-30339.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2009.

August 25, 2009.

Rebecca Louise Pennell, Assistant Federal Public Defender, Yakima, WA, for the defendant-appellant.

Alexander C. Ekstrom, Assistant United States Attorney, Yakima, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington, Wm. Fremming Nielson, District Judge, Presiding. D.C. No. CV-07-2119-WFN.

Before: WILLIAM C. CANBY, JR., DAVID R. THOMPSON, and CONSUELO M. CALLAHAN, Circuit Judges.

THOMPSON, Senior Circuit Judge:

Defendant-Appellant Phillip William George ("George") was convicted of the federal crime of sexual abuse of a minor on an Indian reservation in violation of 18 U.S.C. §§ 2243(a) and 1153. He served his sentence for that offense, but then he failed to register as a sex offender in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. He was convicted of that offense in 2008, pursuant to a conditional guilty plea, and now appeals that conviction. He contends his conviction is invalid because the state where he was required to register, Washington, had not implemented SORNA. He also argues SORNA's registration requirement is an invalid exercise of congressional power and violates the Ex Post Facto Clause of the Constitution.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm George's conviction.

I Washington's Failure to Implement SORNA

On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 became law. Public Law 109-248, Secs. 1-155, 120 Stat. 587, 590-611 (2006). Section 141 of the Act includes SORNA.¹ On February 28, 2007, the Attorney General issued an interim rule, clarifying that SORNA applies to all sex offenders regardless of when they were convicted. 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). "SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration." Id. at 8895.

If a sex offender fails to register as required under § 16913, he or she can be prosecuted under 18 U.S.C. § 2250. Section 2250 states:

(a) In general.—Whoever—

(1) is required to register under [SORNA];

(2)(A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law (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 United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by [SORNA]; shall be fined under this title or imprisoned not more than 10 years, or both.

George argues that he may not be indicted for a failure to register under SORNA because SORNA's registration requirements become effective only after they have been implemented by an applicable state.

Whether an applicable state's failure to implement SORNA precludes a federal prosecution for failure to register as a sex offender in that state is a matter of first impression within our circuit. George is correct that SORNA includes a provision requiring implementation by each state. 42 U.S.C. § 16924(a). George, however, misconstrues the scope and effect of SORNA's implementation provision. Though states have until July 2009 to implement the administrative portions of SORNA, the statute itself became effective on July 27, 2006. "[A]bsent clear direction by Congress to the contrary, a law takes effect on the date of its enactment." Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (citation omitted). As the Attorney General noted, "[i]n contrast to SORNA's provision of a three-year grace period for jurisdictions to implement its requirements, SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness." 72 Fed.Reg. at 8895.

SORNA requires states to implement sex offender regis tries which comply with SORNA requirements by July 2009 or lose part of their federal funding. 42 U.S.C. §§ 16924(a); 16925(a); 72 Fed.Reg. 30210, 30211. With regard to the requirements that individuals register, SORNA establishes a criminal offense for the failure to register or to update a registration. 18 U.S.C. § 2250; 72 Fed.Reg. 8894, 8895.

There is no clear direction from Congress instructing that an individual's obligation to register is dependent on a state's implementation of SORNA. See Gozlon-Peretz, 498 U.S. at 404, 111 S.Ct. 840. Indeed, it is not so dependent, as explained by the Eighth Circuit in United States v. May, 535 F.3d 912, 916-19 (8th Cir.2008), adopted by the Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 930 (10th Cir.2008). While states have until July 2009 to implement administrative components of the statute, the statute became effective July 27, 2006, and registration under it became a requirement of federal law at that time. Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required. We hold that George violated SORNA by failing to register as a sex offender after traveling in interstate commerce.

George argues that an interpretation determining 18 U.S.C. § 2250 to be applicable pre-implementation by an applicable state renders the statute impermissibly vague. In support of this argument, he contends that such an interpretation leaves it unclear what it means to register as a sex offender "as required by SORNA" when a state's registration system is not "SORNA-compliant."

This argument is without merit because George was required to register as a sex offender even before the enactment of SORNA. As stated in the plea agreement he entered in this case, he had signed a notice of conditions of registration in connection with his 2003 sexual abuse conviction in the United States District Court for the District of Idaho "which included a requirement to provide notice of any change of address, and if [he] should move to another state, to register in the state and notify Idaho of the move." Moreover, § 2250 plainly requires a sex offender to register and update any registration according to SORNA's requirements. 18 U.S.C. § 2250(a). Under 42 U.S.C. § 16913, which sets out "Registry requirements for sex offenders," a sex offender must register, registration must be kept current, and for initial registrations, a sex offender must register in the jurisdiction of conviction if different from the jurisdiction of residence. These requirements are clear and easy to understand. The government is correct in that "[i]t is a reasonable construction of 18 U.S.C. § 2250 that the registration requirements mentioned should be found in 42 U.S.C. § 16913, the section from SORNA entitled `Registry requirements for sex offenders.'"

II Commerce Clause

George contends that SORNA's registration requirements are outside of Congress's commerce clause powers. We disagree.

Congress may regulate interstate commerce in three situations: (1) "the use of the channels of interstate commerce"; (2) "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities"; and (3)"those activities having substantial relation to interstate commerce." United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).² Congress has the ability to make all laws that are "necessary and proper" for the accomplishment of its commerce clause power. U.S. Const. art. I, § 8, cl. 18. Congress's commerce clause power can reach intrastate activity that has a substantial effect on interstate commerce. See Wickard v. Filburn, 317 U.S. 111, 125, 63 S.Ct. 82, 87 L.Ed. 122 (1942).

SORNA was enacted to keep track of sex offenders through interstate movement. Such offenders are required to "register, and keep registration current, in each jurisdiction" where the offender lives, works, or goes to school. 42 U.S.C. § 16913(a). As stated by the Eighth Circuit, "[t]his language indicates Congress wanted registration to track the movement of sex offenders through different jurisdictions." United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009). "Under § 2250, Congress limited the enforcement of the registration requirement to only those sex offenders who were either convicted of a federal sex offense or who move in interstate commerce." Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of § 16913 are reasonably aimed at "regulating persons or things in interstate commerce and the use of the channels of interstate commerce." Id. at 717 (quoting United States v. May, 535 F.3d 912, 921 (8th Cir.2008)) (quotation marks omitted). Congress had the power under its broad commerce clause authority to enact the SORNA.

George argues he pleaded guilty only to a violation of 18 U.S.C. § 2250(a)(2)(A), which pertains to persons who are required to register as sex offenders because of a federal conviction. He contends he did not plead guilty to a violation of 18 U.S.C. § 2250(a)(2)(B), which pertains to sexual offenders who are required to register because of travel in interstate commerce.

Arguing against the validity of 18 U.S.C. § 2250(a)(2)(A), George contends Congress had no power to enact a new law requiring registration by someone who had satisfied all aspects of the punishment imposed for a prior federal conviction. We understand George's argument, but we do not find it well-taken in this appeal.

George pleaded guilty to Count 1 of his indictment. That count read:

That on or about September 27, 2007, in Yakima County, in...