United States v. Shoulder

696 F.3d 922

2012 Daily Journal D.A.R. 13,843

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.^*

Filed Oct. 5, 2012.

Lisa J. Bazant, Billings, MT, for the appellant.

Marcia Hurd, Office of the United States Attorney, Billings, MT, for the 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.

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, Tit. I, 120 Stat. 590 (2006) (codified in scattered sections of the U.S.C.). 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

SORNA was enacted in response to “Congress' awareness that pre-[SORNA] registration law 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. 38045 (2008)). SORNA sought to improve the uniformity and effectiveness of those systems by, among other things, “creating federal criminal sanctions applicable to those who violate the Act's registration requirements.” Id. To effectuate this goal, SORNA's registration requirement, 42 U.S.C. § 16913, requires all state and federalsex offenders, as defined,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” as defined 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

These SORNA provisions provide the backdrop to the facts of this case. In 1991, Elk Shoulder was convicted in a federal district court in Montana of sexual abuse of a six-year-old child in violation of 18 U.S.C. § 2241(c). ⁴ Elk Shoulder was sentenced to 172 months in prison, followed by five years supervised release. When Elk Shoulder was released in December 2003, officials informed him 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 under state law, he was required 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 violated the terms of his supervised release and was sentenced to thirty months in prison, followed by thirty months of supervised release. Upon his release from prison a second time in April 2006, he again registered as a sex offender in Yellowstone County. SORNA was enacted three months later. In August 2006, Elk Shoulder again violated the terms of his supervised release and was sentenced to another twenty-four months in prison.

After his release from prison a third time in May 2008, 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.

In 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 of thirty months imprisonment, to be followed by five years supervised release.

On appeal, Elk Shoulder argues that the district court erred in rejecting his constitutional challenges to SORNA. We address each of his arguments in turn.

II

We first consider Elk Shoulder's argument that SORNA's statutory scheme for requiring sex offenders to register and criminalizing certain failures to register violates the Ex Post Facto Clause.

The Constitution provides: “No ... ex post facto Law shall be passed.” U.S. Const. art. I § 9, cl. 3. As the Supreme Court has succinctly explained, “[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37, 43, 110 S.Ct. 2715, 111 L.Ed.2d 30 (1990); see also United States v. Elkins, 683 F.3d 1039, 1044 (9th Cir.2012) (holding that the Ex Post Facto Clause “bars the enactment of any law that imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.”) (quoting Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir.1997) (internal quotation marks omitted)).

Elk Shoulder asserts that SORNA's registration requirement constitutes an additional punishment for his federal sex offense, which he committed in 1991. Because SORNA was not enacted until 2006, he argues that the Ex Post Facto Clause prohibited Congress from applying the registration requirement to him. ⁵

Elk Shoulder's argument is foreclosed by our recent decision in United States v. Elkins, 683 F.3d 1039. In Elkins, a defendant who had been convicted of a sex offense under Washington law in 1994 failed to register when he moved from Washington to California in 2010, and was indicted under § 2250. Id. at 1041–42. Elkins filed a motion to dismiss the indictment arguing, among other things, that the requirement to register violated the Ex Post Facto Clause in his case because it was punitive in nature and was based on a prior conviction that occurred before SORNA was enacted. Id. at 1043–44. We concluded that SORNA's registration requirementwas not punitive in nature, and therefore did not violate Elkins's constitutional rights. Id. at 1045. We based this conclusion on Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), in which the Supreme Court applied a five factor test,⁶ and concluded that Alaska's Sex Offender Registration Act, which is similar to SORNA in all material ways, was not punitive in nature. Id. at 105–06, 123 S.Ct. 1140. We thus rejected the ex post facto challenge to SORNA, and in doing so joined all of our sister circuits that have considered the issue. Elkins, 683 F.3d at 1045.⁷ Because Elk Shoulder also argues that SORNA's registration requirement cannot be applied to him because it is punitive in nature, Elkins 's reasoning is equally applicable to Elk Shoulder.

Despite this precedent, Elk Shoulder argues that the Court's analysis in Smith “no longer hold[s] true in today's society,” and the purpose and effect of SORNA's registration requirement is punitive in nature. Elk Shoulder focuses on the Supreme Court's holding that the Alaska registration statute does not resemble shaming punishments of the colonial period (the first factor of Doe 's five-factor test), and that there was “no evidence that [the registration requirement] has led to substantial occupational or housing disadvantages for former sex offenders that would not have otherwise occurred through the use of routine background checks by employers and landlords.” 538 U.S. at 100, 123 S.Ct. 1140 (the second factor). According to Elk Shoulder, today SORNA's registration requirement imposes significant hardships on offenders, who are “held to public ridicule by community members,” and face difficulty finding and maintaining both employment and housing. He notes that local newspapers frequently maintain interactive maps of the registered residences of sex offenders, and cites “reports of incidents of citizens standing on street corners bearing signs with the names and addresses of offenders blaz[o]ned across the front.”

This argument fails. Most important, we have recently reaffirmed the nonpunitive nature of SORNA in Elkins, which we are bound to follow. Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.2003) (en banc). Further, Smith v. Doe contemplated that information from the Alaska sex registration statute would be available on the internet, but determined that such internet notification was nonpunitive because its principal effect was to “inform the public for its own safety, not to humiliate.” 538 U.S. at 99, 123 S.Ct. 1140. The Court further noted that there was no evidence that the Alaska act had “led to substantial occupational or housing disadvantages that would not have otherwise occurred through the use of routine background checks by employers and landlords.” Id. at 100, 123 S.Ct. 1140. Because “only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty,” id. at 92, 123 S.Ct. 1140 (internal citation and quotation marks omitted...