United States v. Shoulder

• Decision Date: 23 September 2013
• Docket Number: No. 10–30072.,10–30072.
• Citation: 738 F.3d 948
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Mark Steven Elk SHOULDER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

738 F.3d 948

UNITED STATES of America, Plaintiff–Appellee,

v.Mark Steven Elk SHOULDER, Defendant–Appellant.

No. 10–30072.

United States Court of Appeals, Ninth Circuit.

Submitted June 1, 2012.^*

Opinion Filed Oct. 4, 2012.

Opinion withdrawn and new Opinion Filed Sept. 23, 2013.

Lisa J. Bazant, Billings, MT, for Appellant.

Michael W. Cotter, United States Attorney, J. Bishop Grewell and Marcia Hurd, Assistant United States Attorneys, Billings, MT, for Appellee.

Appeal from the United States District Court for the District of Montana, Jack D. Shanstrom, Senior District Judge, Presiding. D.C. No. 1:09–cr–00023–JDS–1.

Before: A. WALLACE TASHIMA, CARLOS T. BEA, and SANDRA S. IKUTA, Circuit Judges.

ORDER

The opinion filed on October 5, 2012, and appearing at 696 F.3d 922 is withdrawn. The superseding opinion will be filed concurrently with this order. The parties may file an additional petition for rehearing or rehearing en banc.

OPINION

IKUTA, Circuit Judge:

This appeal challenges the constitutionality of certain key provisions of the Sex Offender Registration and Notification Act (SORNA). Pub.L. 109–248, §§ 101–55, 120 Stat. 587, 590–611 (codified in scattered sections of U.S.C. (2006)). Defendant Mark Steven Elk Shoulder was prosecuted under 18 U.S.C. § 2250(a) for failing to comply with the sex offender registration requirements set forth in 42 U.S.C. § 16913. He now argues that his conviction was invalid, because SORNA violates the Ex Post Facto Clause and the Due Process Clause, and because Congress lacked the constitutional authority to enact SORNA. We reject these constitutional challenges and affirm the judgment of the district court.

I

The history of Congress's activities in ensuring the registration of sex offenders provides the backdrop to the facts of this case.

A

In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act (“Wetterling Act”), Pub.L. No. 103–322, §§ 170101–170303, 108 Stat. 1796, 2038–45 (1994), the first federal act addressing sex offender registration. The Wetterling Act served at least two functions. First, it “used the federal spending power to encourage States to adopt sex offender registration laws.” United States v. Kebodeaux, ––– U.S. ––––, 133 S.Ct. 2496, 2501, 186 L.Ed.2d 540 (2013) (citing 42 U.S.C. § 14071(i) (2000 ed.)). Specifically, 42 U.S.C. § 14071(a) required the Attorney General to “establish guidelines for State programs” requiring people “convicted of a criminal offense against a [minor] victim,” or “a sexually violent offense,” to register a current address for a specified time period. Although the Act did not require states accepting funds to impose this registration requirement retroactively on individuals previously convicted of sex offenses, the Act did “not preclude states from imposing any new registration requirements on offenders convicted prior to the establishment of the registration system.” Final Guidelines for Megan's Law and the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 62 Fed.Reg. 39,009, 39,013 (July 21, 1997).

Second, the Wetterling Act “imposed federal penalties upon federal sex offenders who failed to register in the States in which they lived, worked, and studied.” Kebodeaux, 133 S.Ct. at 2501 (citing 42 U.S.C §§ 14072(i)(3)-(4)). Relevant here, § 14702(i)(2) provided that a person who is “required to register under a sexual offender registration program in the person's State of residence and knowingly fails to register in any other State in which the person is employed, carries on a vocation, or is a student,” is subject to specified penalties. Similarly, § 14702(i)(3) imposed a penalty on a person who is “described in section 4042(c)(4) of title 18 [specifying various sex offenses], and knowingly fails to register in any State in which the person resides, is employed, carries on a vocation, or is a student following release from prison or sentencing to probation.”

“[B]y 2000, all fifty states and the District of Columbia had both sex offender registration systems and community notification programs.” United States v. Crowder, 656 F.3d 870, 872 (9th Cir.2011) (alteration in original) (internal quotation marks omitted). Montana, the state where Elk Shoulder resided, first enacted a Sexual Offender Registration Act in 1989, even before the Wetterling Act was passed. State v. Villanueva, 328 Mont. 135, 118 P.3d 179, 181 (2005) (explaining that Montana's sex offender registry applied to “sexual offenders who are sentenced by a state or federal court in any state on or after July 1, 1989, or who as a result of a sentence are under the supervision of a county, state, or federal agency in any state on or after July 1, 1989” (internal quotation marks omitted)). Though Montana's act has been amended several times, Elk Shoulder does not dispute its continued applicability to him.

Although most states complied with the Wetterling Act's encouragement to enact sex-offender registration, pre-SORNA registration laws consisted of a “patchwork of federal and 50 individual state registration systems.” Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012) (citing 73 Fed.Reg. 38,045 (2008)). To address this problem, in 2006, Congress enacted SORNA “to succeed and enhance the registration requirements of the Wetterling Act.” United States v. Begay, 622 F.3d 1187, 1190 (9th Cir.2010).

SORNA is designed to improve the uniformity and effectiveness of sex-offender registration systems by, among other things, “creating federal criminal sanctions applicable to those who violate the Act's registration requirements.” Reynolds, 132 S.Ct. at 978. SORNA's registration requirement, codified at 42 U.S.C. § 16913, requires all state and federal sex offenders,¹ to “register, and keep the registration current, in each jurisdiction where the offender” resides, works, or goes to school. ² A person who fails to register as required by § 16913 may be criminally prosecuted under 18 U.S.C. § 2250(a). This provision requires the government to prove that the defendant: (1) is required to register under SORNA, (2) is a “sex offender” due to a conviction under federal law (or the law of certain other listed jurisdictions) or a person who “travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country” and, (3) knowingly failed to register or update a registration as required by SORNA.³

Although SORNA imposed various requirements on sex offenders, it did not provide that its registration requirements would apply retroactively to sex offenders convicted before July 27, 2006, SORNA's effective date. United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir.2010). Instead, it gave the Attorney General the authority to enact regulations specifying the applicability of SORNA's registration requirements to pre-Act offenders. Id. (citing 42 U.S.C. § 16913(d)). In Valverde, we held that the Attorney General did not complete the steps necessary to make SORNA retroactive until August 1, 2008. Id. at 1169. Therefore, the requirements of SORNA became applicable to pre-Act offenders on that date. Id. The Wetterling Act, however, remained in effect until repealed by SORNA, effective on the later of July 27, 2009, or one year after the software required by SORNA became available. Pub.L. 109–248, §§ 129(b), 124, 120 Stat. at 600–01, 598.

B

In 1992, before Congress passed the Wetterling Act but after Montana had enacted its registration requirements, Elk Shoulder was convicted in a federal district court in Montana of sexual abuse of a six-year-old child in violation of section 2241(c) of Title 18 of the United States Code.⁴ In 1992, the court sentenced Elk Shoulder to 172 months in prison, followed by five years supervised release. Upon his release in December 2003, officials informed Elk Shoulder that he was required to register as a sex offender under Montana law. He registered in Yellowstone County, Montana, where he signed and initialed the state's “Sexual and Violent Offender Registration Form.” By doing so, Elk Shoulder acknowledged that state law required him to maintain a current and updated registration, and that his duty to register would continue for the rest of his life, even after the expiration of probation or parole.

Weeks later, in February 2004, Elk Shoulder was sentenced to thirty months in prison, to be followed by thirty months of supervised release, for violating the terms of his supervised release. Upon Elk Shoulder's second release from prison, in April 2006, he again registered as a sex offender in Yellowstone County. Congress enacted SORNA on July 26, 2006, but because Elk Shoulder was a pre-Act offender, SORNA did not yet apply retroactively to him. See Valverde, 628 F.3d at 1169. In August 2006, Elk Shoulder again violated the terms of his supervised release and was sentenced to another twenty-four months in prison.

Elk Shoulder was released a third time in May 2008. Two months later, on August 1, 2008, SORNA became applicable to pre-Act offenders, including Elk Shoulder. See id. After his third release, Elk Shoulder moved around Montana, living at various times in the Northern Cheyenne Indian Reservation, Bozeman, Lame Deer, Billings, and Wolf Point. He did not register as a sex offender in any of these locales.

On February 23, 2009, Elk Shoulder was indicted under 18 U.S.C. § 2250(a) for violating the SORNA registration requirements in 42 U.S.C. § 16913. Before trial, Elk Shoulder brought two motions to dismiss the indictment. In the first, he asserted that SORNA's registration provision exceeded Congress's authority under the Commerce Clause. In the second, he claimed that the retroactive application of these provisions violated the Ex Post Facto Clause. The district court denied both motions. After a bench trial, the court found Elk Shoulder guilty beyond a reasonable doubt. He was sentenced to a term...