U.S. v. Lawrance

Decision Date08 December 2008
Docket NumberNo. 08-6034.,08-6034.
Citation548 F.3d 1329
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Keith Allen LAWRANCE, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Robert Gifford, Assistant United States Attorney (John C. Richter, United States Attorney, on the brief), Oklahoma City, OK, for Plaintiff-Appellee.

Paul Lacy, Assistant Federal Public Defender, Oklahoma City, OK, for Defendant-Appellant.

Before KELLY, SEYMOUR, and MURPHY, Circuit Judges.

PAUL KELLY, JR., Circuit Judge.

Defendant-Appellant Keith Allen Lawrance appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250, enacted July 27, 2006. Mr. Lawrance entered a conditional guilty plea to the indictment, reserving his right to appeal the district court's order denying his motion to dismiss. See United States v. Lawrance, No. CR-07-166-D, 2007 WL 5271934 (W.D.Okla. Sept.5, 2007). He was sentenced to fifteen months' imprisonment and five years' supervised released. 1 R. Doc. 36. On appeal, he argues that the application of SORNA and its failure to register provisions to his case is unconstitutional because the statute violates (1) the Ex Post Facto Clause, (2) the Commerce Clause, and (3) the Due Process Clause. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


On July 18, 2002, Mr. Lawrance was convicted in Arizona of sexual conduct with a minor under eighteen years old. 2 R. (PSR) 4. Upon receiving a five-year term of probation, Mr. Lawrance acknowledged in writing his duty to register as a sex offender, his duty if he moves to another state or county to inform the sheriff of the county from which he is moving within seventy-two hours, and his duty to comply with the sex offender registration requirements of any state in which he lives. 2. R. (PSR) 5. Mr. Lawrance's probation was subsequently revoked, and he received a sentence of eighteen months' imprisonment as a result of his failure to update his address. 2 R. (PSR) 8.

In July 2006, Mr. Lawrance moved from Arizona to Montrose, Colorado, and in November 2006, "just prior to Thanksgiving," Mr. Lawrance and his girlfriend moved to Stillwater, Oklahoma, where they lived with the girlfriend's cousin. 2 R. (PSR) 4. Before Christmas 2006, Mr. Lawrance and his girlfriend moved to Oklahoma City, where they lived at approximately five different addresses between December 2006 and June 2007. 2 R. (PSR) 4.

Mr. Lawrance concedes that he "is required to comply with the sex offender registration requirements of any state where he lived," and admits that he failed to update his registration in Arizona, never registered in Colorado, and "knowingly failed to register as a Sex Offender in the state of Oklahoma." 2 R. (PSR) 5. The resulting indictment charges Mr. Lawrance with "knowingly fail[ing] to register as a sex offender in the state [of] Oklahoma as required by the Sex Offender Registration and Notification Act, after leaving the state of Arizona where he failed to update his Sex Offender Registration and thereafter traveled in interstate commerce to the State of Oklahoma" during the period November 2006 through June 20, 2007. 1 R. Doc. 13.


In reviewing constitutional challenges to a statute, our review is de novo. United States v. Parker, 362 F.3d 1279, 1281 (10th Cir.2004) (Commerce Clause); see also United States v. Morris, 247 F.3d 1080, 1085 (10th Cir.2001) (same); Femedeer v. Haun, 227 F.3d 1244, 1248 (10th Cir.2000) (Ex Post Facto); Neely v. Newton, 149 F.3d 1074, 1079 (10th Cir.1998) (due process).

I. Ex Post Facto Clause

Mr. Lawrance first argues that his prosecution under SORNA's failure to register provisions violates the Ex Post Facto Clause. In Calder v. Bull, the Supreme Court held that any law that "inflicts a greater punishment[ ] than the law annexed to the crime" at the time of its commission or criminalizes any act "done before the passing of the law" violates the Ex Post Facto Clause. 3 U.S. 386, 390, 3 Dall. 386, 1 L.Ed. 648 (1798). To violate the Clause, a law "must be retrospective, that is, it must apply to events occurring before its enactment" and "must disadvantage the offender affected by it." Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Calder, 3 U.S. at 390). To be criminally liable under SORNA, a sex offender must travel in interstate commerce and "knowingly fail[ ] to register or update a registration as required by the [Act]." 18 U.S.C. § 2250(a).

Mr. Lawrance makes two arguments: (1) that SORNA's retroactive application punishes him for a sexual offense committed prior to the Act's effective date of July 27, 2006, and (2) that SORNA punishes him for interstate travel occurring prior to July 27, 2006. The district court rejected these arguments. The district court determined that SORNA is a "civil regulatory scheme with neither a punitive purpose nor effect," rather than a means to inflict retroactive punishment on past offenders. Lawrance, 2007 WL 5271934, at *4. It does not punish Mr. Lawrance for his "pre-SORNA conduct; instead, it penalizes him for his post-SORNA failure to register." Id. at *5. We recently confronted this issue in United States v. Hinckley, No. 07-7107, slip. op. at 19-25, ___ F.3d ___, 2008 WL 5146353 (10th Cir.2008), and consistent with that decision, reject these arguments.

Just as in Hinckley, Mr. Lawrance argues that SORNA violates the Ex Post Facto Clause by retroactively increasing punishment for past offenses. While Mr. Lawrance is actually being punished for his failure to register after traveling in interstate commerce, and not for his prior sexual offense, we address his argument in light of SORNA's retroactive registration scheme as a whole. Under Smith v. Doe, we engage in a two-part analysis to determine whether the retroactive application of a statute violates the Ex Post Facto Clause in this fashion. 538 U.S. 84, 92, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003). First, we "`ascertain whether the legislature meant the statute to establish "civil" proceedings.'" Id. at 92, 123 S.Ct. 1140 (quoting Kansas v. Hendricks, 521 U.S. 346, 361, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997)). If Congress indeed intended via the statute to "enact a regulatory scheme that is civil and nonpunitive, we must further examine whether the statutory scheme is `so punitive either in purpose or effect as to negate [Congress's] intention' to deem it `civil.'" Id. (quoting United States v. Ward, 448 U.S. 242, 248-49, 100 S.Ct. 2636, 65 L.Ed.2d 742 (1980)). The court normally defers to Congress's stated intent, and therefore "`only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.'" Id. (quoting Hudson v. United States, 522 U.S. 93, 100, 118 S.Ct. 488, 139 L.Ed.2d 450 (1997)).

SORNA is both civil in its stated intent and nonpunitive in its purpose, similar to the scheme in Smith, and therefore does not violate the Ex Post Facto Clause. Mr. Lawrance attempts to distinguish the statutory scheme in Smith, but it is unavailing. In enacting SORNA, Congress expressly declared its intent to create a "comprehensive national system for the registration" of sex offenders, "[i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators." 42 U.S.C. 16901. To overcome this clearly stated congressional intent, Mr. Lawrance draws two distinctions between SORNA and the Smith scheme, arguing that, unlike Smith, (1) the placement of SORNA's failure to register provisions appear in the federal criminal code, and (2) the enforcement of SORNA is vested in the United States Attorney General.

We are not persuaded. First, the registration provisions in Smith were actually codified in Alaska's criminal procedure code. See Alaska Stat. § 12.63.010 (2000) (amended 2008); Smith, 538 U.S. at 94, 123 S.Ct. 1140. Moreover, the Supreme Court rejected the argument that "[t]he partial codification of the Act in the State's criminal procedure code" supported "a conclusion that the legislative intent was punitive." Smith, 538 U.S. at 95, 123 S.Ct. 1140. Second, while the Smith scheme vested enforcement authority in the Alaska Department of Public Safety, "an agency charged with enforcement of both criminal and civil regulatory laws," id. at 96, 123 S.Ct. 1140, the Smith Court held that such a factor is merely "probative of the legislature's intent," rather than dispositive, id. at 94, 123 S.Ct. 1140. Finally, Mr. Lawrance cites an example offered by the Attorney General in his Interim Rule to illustrate the statute's punitive purpose; however, the example simply states that an offender may be held criminally liable for his failure to register after traveling in interstate commerce. See 28 C.F.R. § 72.3 (Feb. 28, 2007). It does not, as he alleges, increase the penalty for his original sex offense. Therefore, under the Smith analysis, SORNA's civil retroactive registration requirements do not violate the Ex Post Facto Clause. See Hinckley, No. 07-7107, slip. op. at 22-25, ___ F.3d at ___-___ (discussing SORNA under a Smith analysis).

Mr. Lawrance further argues that SORNA as applied to his case violates the Ex Post Facto Clause because it penalizes his pre-enactment interstate travel. Essentially, he argues that his travel in interstate commerce occurred prior to SORNA's effective date, which he asserts did not become applicable until February 28, 2007, the date of the Attorney General's promulgation of the Interim Rule.1 In support, he cites several cases that focus on the timing of defendants' travel and the dates of their indictments, most of which are easily distinguishable.2 Aplt. Br. 13-15. Regardless, we do not find their reasoning persuasive in light of our...

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