USA v. GEORGE, No. 08-30339.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation625 F.3d 1124
Decision Date02 November 2010
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Phillip William GEORGE, Defendant-Appellant.
Docket NumberNo. 08-30339.

625 F.3d 1124

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.
Filed Sept. 29, 2010.

Amended Nov. 2, 2010.


625 F.3d 1125

COPYRIGHT MATERIAL OMITTED.

625 F.3d 1126

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 Nielsen, District Judge, Presiding. D.C. No. CV-07-2119-WFN.

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

ORDER

The opinion filed September 29, 2010 is amended by deleting footnote 3 and inserting the following footnote 3 in its place:

3 The registration requirements became applicable to pre-SORNA sex offenders no later than the February 28, 2007 issuance of the Attorney General's interim order. 72 Fed. Reg. 8894. Because George's failure to register occurred several months after the interim order issued, the parties do not address-and we need not resolve-whether SORNA's registration requirements apply to pre-SORNA sex offenders upon the statute's July 27, 2006 enactment or upon the later February 28, 2007 issuance of the interim order. See Carr, 130 S.Ct. at 2234 n. 2 (noting, without expressing an opinion, that there is a “conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offences prior to the statute's enactment”). Either way, SORNA applied to George at the time of his arrest in Washington in September 2007. And, as we concluded above, Washington's failure to implement SORNA does not bar federal prosecution for George's failure to register.

The amended opinion is filed with this order.

The appellant's petition for rehearing en banc filed October 13, 2010 is pending before the court. No further petitions for rehearing or for rehearing en banc may be filed.

625 F.3d 1127

OPINION

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

625 F.3d 1128

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.

[1] 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. That the states have until July 2009 to implement the administrative portions of SORNA, does not preclude federal prosecution for George's failure to register under SORNA. 72 Fed. Reg. at 8895 (“In 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.”).

SORNA requires states to implement sex offender registries 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 v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991). 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), cert. denied, --- U.S. ----, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009), adopted by the Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 930 (10th Cir.2008). Other circuits have reached the same result. See United States v. Guzman, 591 F.3d 83, 93 (2nd Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. Brown, 586 F.3d 1342, 1347-49 (11th Cir.2009); United States v. Gould, 568 F.3d 459, 463-66 (4th Cir.2009). 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.

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”

625 F.3d 1129

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...

To continue reading

Request your trial
57 practice notes
  • United States. v. Kebodeaux, No. 08-51185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 12, 2011
    ...on the merits. See, e.g., United States v. Waybright, 561 F. Supp. 2d 1154, 1168 (D. Mont. 2008), overruled by United States v. George, 625 F.3d 1124, 1129 n.2 (9th Cir. 2010); United States v. Powers, 544 F. Supp. 2d 1331, 1336 (M.D. Fla. 2008), rev'd, 562 F.3d 1342, 1344 (11th Cir. 2009) ......
  • United States v. Cabrera-Gutierrez, No. 12–30233.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 17, 2014
    ...to require him to register as a sex offender. The district court denied the motion, noting that although United States v. George, 625 F.3d 1124 (9th Cir.2010), had been vacated, 672 F.3d 1126 (9th Cir.2012), “the Court finds the reasoning in George persuasive and notes that the opinion was ......
  • Ctr. for Sierra Nev. Conservation v. U.S. Forest Serv., No. CIV. S–09–2523 LKK/JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 26, 2011
    ...on lands managed by BLM. BLM “did not consider any alternative that would have closed more than 0.77% of the planning area to [OHVs].” 625 F.3d at 1124. The Ninth Circuit rejected the EIS, holding that BLM “must consider closures of significant portions of the land it manages.” Id.Block con......
  • U.S. v. Kebodeaux, No. 08–51185.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 15, 2011
    ...to all other jurisdictions in which the offender is required to register.” 2. Whaley, 577 F.3d at 258; accord United States v. George, 625 F.3d 1124, 2010 WL 4291497, at *4 (9th Cir.2010); United States v. Guzman, 591 F.3d 83, 90 (2d Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3487, 177 L......
  • Request a trial to view additional results
57 cases
  • United States. v. Kebodeaux, No. 08-51185
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 12, 2011
    ...on the merits. See, e.g., United States v. Waybright, 561 F. Supp. 2d 1154, 1168 (D. Mont. 2008), overruled by United States v. George, 625 F.3d 1124, 1129 n.2 (9th Cir. 2010); United States v. Powers, 544 F. Supp. 2d 1331, 1336 (M.D. Fla. 2008), rev'd, 562 F.3d 1342, 1344 (11th Cir. 2009) ......
  • United States v. Cabrera-Gutierrez, No. 12–30233.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 17, 2014
    ...to require him to register as a sex offender. The district court denied the motion, noting that although United States v. George, 625 F.3d 1124 (9th Cir.2010), had been vacated, 672 F.3d 1126 (9th Cir.2012), “the Court finds the reasoning in George persuasive and notes that the opinion was ......
  • Ctr. for Sierra Nev. Conservation v. U.S. Forest Serv., No. CIV. S–09–2523 LKK/JFM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • May 26, 2011
    ...on lands managed by BLM. BLM “did not consider any alternative that would have closed more than 0.77% of the planning area to [OHVs].” 625 F.3d at 1124. The Ninth Circuit rejected the EIS, holding that BLM “must consider closures of significant portions of the land it manages.” Id.Block con......
  • U.S. v. Kebodeaux, No. 08–51185.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 15, 2011
    ...to all other jurisdictions in which the offender is required to register.” 2. Whaley, 577 F.3d at 258; accord United States v. George, 625 F.3d 1124, 2010 WL 4291497, at *4 (9th Cir.2010); United States v. Guzman, 591 F.3d 83, 90 (2d Cir.), cert. denied, ––– U.S. ––––, 130 S.Ct. 3487, 177 L......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT