U.S. v. Young

• Decision Date: 07 October 2009
• Docket Number: No. 08-51047.,08-51047.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Norman Lamar YOUNG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

585 F.3d 199

UNITED STATES of America, Plaintiff-Appellee, v. Norman Lamar YOUNG, Defendant-Appellant.

No. 08-51047.

United States Court of Appeals, Fifth Circuit.

October 7, 2009.

Joseph H. Gay, Jr. and Mark Randolph Stelmach, Asst. U.S. Attys., San Antonio, TX, for U.S.

Evers Jason Leach (Court-Appointed), Law Offices of E. Jason Leach, Odessa, TX, for Young.

Appeal from the United States District Court for the Western District of Texas.

Before HIGGINBOTHAM, STEWART and OWEN, Circuit Judges.

PER CURIAM:

Norman Lamar Young — a sex offender — appeals his conviction under 18 U.S.C. § 2250(a) for traveling in interstate commerce and then knowingly failing to update his registration information as required by the Sex Offender Registration and Notification Act (SORNA). Young contends that, as applied to him, SORNA violates his constitutional right to be free from ex post facto punishment. It does not, so we affirm.

I. BACKGROUND

A. SORNA Statutory Framework

On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006.¹ Title I of the Act includes SORNA, which "establishes a comprehensive national system for the registration of [sex] offenders."² "[I]n response to the vicious attacks by violent predators," Congress sought through SORNA "to protect the public from sex offenders and offenders against children. . . ."³

SORNA requires sex offenders to register in each jurisdiction in which they reside or work.⁴ And sex offenders must update their registration information within three business days of any change in residence or employment.⁵ Failure to abide by these requirements can subject the sex offender to prosecution. Indeed, a sex offender who "travels in interstate or foreign commerce" and then "knowingly fails to register or update a registration . . . shall be fined . . . or imprisoned not more than 10 years, or both."⁶

Congress left it to the Attorney General's discretion whether SORNA would apply to sex offenders convicted before the Act's passage: "The Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before the enactment of this Act. . . ."⁷ Pursuant to this authority, Attorney General Alberto Gonzales issued an interim rule that became effective on February 28, 2007: "The requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act."⁸ This rule became final on April 30, 2007.⁹

B. Facts

Norman Lamar Young is a sex offender. Indeed, on November 29, 2001, he pleaded guilty in Texas state court to one count of Indecency with a Child by Contact. After his release from prison in 2004, Young made his way to Florida.

Some three years later — in March of 2007 — Young provided registration information to officials in Jacksonville in order to comply with SORNA. But, on August 7, 2007, Young boarded a Greyhound bus and traveled to Texas. Law enforcement officers later arrested Young in Midland — on August 22, 2007; on December 27, 2007; and again on January 29, 2008. Young claims to have been working at a Cheddar's restaurant during his time back in Texas. At no point after traveling from Florida to Texas did Young update his SORNA information.

The United States Government charged Young in a superseding indictment under 18 U.S.C. § 2250(a) for violating the SORNA requirements. Young filed a motion to dismiss, based in part on his idea that SORNA provides for ex post facto punishment. The Magistrate Judge recommended denying Young's motion to dismiss, and the district court adopted the Magistrate Judge's recommendation. As a result, Young entered a conditional guilty plea, reserving the right to appeal the ex post facto ruling.

II. ANALYSIS

The only issue on appeal is whether SORNA violates Young's right to be free from ex post facto punishment. This is a matter of first impression in this court.

A. Standard of Review

The parties agree that Young did not object to the Magistrate Judge's report, so we would normally follow our rule from Douglass v. United Services Automobile Ass'n and review any claim on appeal for plain error.¹⁰ However — as the Government responsibly points out — the Magistrate Judge did not warn Young of the consequences of failing to object. Young therefore did not have notice of the result of not objecting.¹¹ We thus proceed to review de novo Young's constitutional claim.¹²

B. Ex Post Facto Punishment

The so-called Ex Post Facto Clause of the United States Constitution actually refers to two prohibitions — one against the Congress¹³ and one against the states¹⁴ — that forbid the government from enacting any law "which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . . ."¹⁵ Justice Chase, in the watershed case Calder v. Bull, described specifically the types of laws that violate the ex post facto prohibitions:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. . . .¹⁶

The Supreme Court has uniformly reaffirmed Justice Chase's definition as authoritative.¹⁷

Young's ex post facto argument is a bit unclear, but he seems to challenge SORNA in two ways: first, by suggesting that its sanctioning provision (18 U.S.C. § 2250) in some way punishes him retroactively; and, second, by suggesting that SORNA's registration provision increases the punishment for his 2001 sex crime.¹⁸ That is, Young contends that either his incarceration under SORNA or the mere burden of having to register under SORNA violates the ex post facto prohibition of the Constitution.

i. Sanctioning Provision under Title 18

The consequences under 18 U.S.C. § 2250 do not immediately jump out as after-the-fact types of punishment. Indeed, for a penal law to be considered ex post facto, it "must apply to events occurring before its enactment."¹⁹ Although SORNA does relate to old conduct that was criminal when done, the question is whether SORNA punishes this old conduct. On its face, SORNA does not purport to punish sex offenders for their old crimes; instead, the government can only punish sex offenders for currently failing to register. Specifically, SORNA's sanctioning provision contains two definitional requirements, a scienter, and one triggering act — punishing only: "sex offenders" (definition); who have "traveled in interstate . . . commerce" (definition); and "knowingly" (scienter); subsequently fail to update their SORNA registry information (the act). Especially as applied to Young — who both traveled in interstate commerce and knowingly failed to update his registry only after the Attorney General had made SORNA's requirements applicable to all sex offenders — the forbidden act is not one which was legal at the time he committed it. His incarceration itself thus does not violate the Constitution's ex post facto prohibitions.²⁰

ii. Registration Requirements under Title 42

Because SORNA permits prosecution only of current acts, Young is left to argue that SORNA as a regulatory whole is an ex post facto punishment for his 2001 sex crime. That is, Young must contend that SORNA and its attendant registration burdens — isolated from the fact of his incarceration under SORNA — increase his punishment for his 2001 sex crime. Viewed in this way, the inconvenience and embarrassment of registering as a sex offender are punishments appended after the fact onto his 2001 prison sentence. Young's theory would be: If SORNA's registration requirements under Title 42 are unconstitutional, then the Government cannot punish him under Title 18 for failing to abide by them — and Young will go free.

The Supreme Court has provided us with the framework for determining whether "a sex offender registration law constitutes retroactive punishment forbidden by the Ex Post Facto Clause."²¹ First, we must "ascertain whether the legislature meant the statute to establish `civil' proceedings."²² If the legislature intended with the registration requirements to impose punishment, then the law is automatically unconstitutional.²³ On the other hand, if the legislature's "intention was to enact a regulatory scheme that is civil and nonpunitive," then the court must ask "whether the statutory scheme is so punitive either in purpose or effect as to negate [the government's] intention to deem it civil."²⁴ The court must defer to the legislature's stated intent — as "only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty."²⁵

Turning to the statute at hand, we now hold — in line with all of our sister Circuits to have considered the issue²⁶ — that SORNA is a civil regulation and, thus, does not run afoul of the Constitution's ex post facto prohibitions. With SORNA, Congress expressly sought to "establish[] a comprehensive national system for the registration of [sex] offenders"²⁷ in order "to protect the public from sex offenders and offenders against children."²⁸ This express language indicates that Congress sought to create a civil remedy.²⁹ Therefore, Young must present the "clearest proof" that either the purpose or the effect of the regulation is in fact so punitive as to negate its civil intent. This he cannot do.

a. Punitive Purpose

In an attempt to show implicit punitive purpose, Young lists a half-dozen ways in which SORNA is supposedly different from the Alaska Sex Offender Registration Act (ASORA) upheld in Smith v. Doe.³⁰ However, Young is analytically...