United States v. George

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 08-30339

Plaintiff-Appellee, D.C. No.

v. CV-07-2119-WFN

PHILLIP WILLIAM GEORGE,  ORDER

Defendant-Appellant. AMENDING

OPINION AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Wm. Fremming Nielson, District Judge, Presiding

Argued and Submitted

June 2, 2009—Seattle, Washington

Filed September 29, 2010

Amended November 2, 2010

Before: William C. Canby, Jr., David R. Thompson, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Thompson

18051

18054 UNITED STATES v. GEORGE

COUNSEL

Rebecca Louise Pennell, Assistant Federal Public Defender,

Yakima, Washington, for the defendant-appellant.

Alexander C. Ekstrom, Assistant United States Attorney,

Yakima, Washington, for the plaintiff-appellee.

ORDER

The opinion filed September 29, 2010 is amended by delet-

ing 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 Febru-

ary 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 registra-

tion requirements apply to pre-SORNA sex offend-

ers 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 (not-

ing, without expressing an opinion, that there is a

“conflict among the Courts of Appeals as to when

SORNA’s registration requirements became applica-

ble to persons convicted of sex offences prior to the

UNITED STATES v. GEORGE 18055

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 regis-

ter.

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.

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, pur-

suant to a conditional guilty plea, and now appeals that con-

viction. 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.

18056 UNITED STATES v. GEORGE

I

Washington’s Failure to Implement SORNA

[1] 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 Attor-

1

SORNA’s registration requirements are set forth in 42 U.S.C. § 16913,

and provide:

a. In general

A sex offender shall register, and keep the registration current, in

each jurisdiction where the offender resides, where the offender

is an employee, and where the offender is a student. For initial

registration purposes only, a sex offender shall also register in the

jurisdiction in which convicted if such jurisdiction is different

from the jurisdiction of residence.

b. Initial registration

The sex offender shall initially register —

(1) before completing a sentence of imprisonment with respect

to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that

offense, if the sex offender is not sentenced to a term of impris-

onment.

c. Keeping the registration current

A sex offender shall, not later than 3 business days after each

change of name, residence, employment, or student status, appear

in person in at least 1 jurisdiction involved pursuant to subsection

(a) of this section and inform that jurisdiction of all changes in

the information required for that offender in the sex offender reg-

istry. That jurisdiction shall immediately provide that information

to all other jurisdictions in which the offender is required to reg-

ister.

d. Initial registration of sex offenders unable to comply with

subsection (b) of this section

The Attorney General shall have the authority to specify the

applicability of the requirements of this subchapter to sex offend-

UNITED STATES v. GEORGE 18057

ney General issued an interim rule, clarifying that SORNA

applies to all sex offenders regardless of when they were con-

victed. 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 cur-

rently 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 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 Jus-

tice), 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

ers convicted before July 27, 2006 or its implementation in a par-

ticular jurisdiction, and to prescribe rules for the registration of

any such sex offenders and for other categories of sex offenders

who are unable to comply with subsection (b) of this section.

e. State penalty for failure to comply

Each jurisdiction, other than a Federally recognized Indian tribe,

shall provide a criminal penalty that includes a maximum term of

imprisonment that is greater than 1 year for the failure of a sex

offender to comply with the requirements of this subchapter.

18058 UNITED STATES v. GEORGE

(3) knowingly fails to register or update a registra-

tion 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.

[2] 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 regis-

tries 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 regis-

tration. 18 U.S.C. § 2250; 72 Fed. Reg. 8894, 8895.

[3] 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 (1991). Indeed, it is not so

UNITED STATES v. GEORGE 18059

dependent, as explained by the Eighth Circuit in United States

v. May, 535 F.3d 912, 916-19 (8th Cir. 2008), cert. denied,

129 S.Ct. 2431 (2009), adopted by the Tenth Circuit in United

States v. Hinkley, 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 regis-

tries regardless of state implementation of the specific addi-

tional 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” when a state’s registration system is not

“SORNA-compliant.”

[4] This argument is without merit because George was

required to register as a sex offender even before the enact-

ment of SORNA. As stated in the plea agreement he entered

in this case, he had signed a notice of conditions of registra-

tion 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.” More-

over, § 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

18060 UNITED STATES v. GEORGE

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 men-

tioned should be found in 42 U.S.C. § 16913, the section from

SORNA entitled ‘Registry requirements for sex offenders.’ ”

II

Commerce Clause

George contends that SORNA’s registration requirements

are outside of Congress’s commerce clause powers. We dis-

agree.

[5] Congress may regulate interstate commerce in three sit-

uations: (1) “the use of the channels of interstate commerce”;

(2) “the instrumentalities of interstate commerce, or persons

or things in interstate commerce, even though the threat may

come only from intrastate activities”; and (3) “those activities

having substantial relation to interstate commerce.” United

States v. Lopez, 514 U.S. 549, 558-59 (1995).2 Congress has

the ability to make all laws that are “necessary and proper”

for the accomplishment of its commerce clause power. U.S.

Const. art. I, § 8, cl. 18. Congress’s commerce clause power

can reach intrastate activity that has a substantial effect on

interstate commerce. See Wickard v. Filburn, 317 U.S. 111,

125 (1942).

2

George cites United States v. Waybright, 561 F.Supp.2d 1154

(D.Mont.2008) which found that § 16913 was not constitutional because

it (1) does not fit within the Lopez prongs, (2) is not economic in nature,

and (3) created a separate statutory scheme of national regulation of sex

offenders instead of facilitating implementation of a federal crime under

§ 2250. Id. at 1163-68. To the extent our reasoning in this opinion differs

from the district court’s decision in Waybright, we disapprove of that deci-

sion. See NASD Dispute Resolution, Inc. v. Judicial Council of State of

Ca., 488 F.3d 1065, 1069 (9th Cir. 2007).

UNITED STATES v. GEORGE 18061

[6] SORNA was enacted to keep track of sex offenders.

See Carr v. United States, ___ U.S. ___, 130 S.Ct. 2229, 2240

(2010) (“[SORNA was] enacted to address the deficiencies in

prior law that had enabled sex offenders to slip through the

cracks.”). Such offenders are required to “register, and keep

registration current, in each jurisdiction” where the offender

lives, works, or goes to school. 42 U.S.C. § 16913(a). As

stated by the Eighth Circuit, “[t]his language indicates Con-

gress wanted registration to track the movement of sex

offenders through different jurisdictions.” United States v.

Howell, 552 F.3d 709, 716 (8th Cir. 2009). “Under § 2250,

Congress limited the enforcement of the registration require-

ment to only those sex offenders who were either convicted

of a federal sex offense or who move in interstate commerce.”

Id. (citing 18 U.S.C. § 2250(a)(2)). The requirements of

§ 16913 are reasonably aimed at “regulating persons or things

in interstate commerce and the use of the channels of inter-

state commerce.” Id. at 717 (quoting May, 535 F.3d at 921)

(quotation marks omitted).

[7] Congress had the power under its broad commerce

clause authority to enact the SORNA. Accord United States

v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009); United States

v. Gould, 568 F.3d 459, 470-72 (4th Cir. 2009); United States

v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009); United

States v. Hinckley, 550 F.3d 926, 940 (10th Cir. 2008), cert.

denied, 129 S.Ct. 2383 (2009); May, 535 F.3d at 921.

[8] George alternatively argues that Congress does not

have the power to require registration based on his status as

a federal sex offender under 18 U.S.C. § 2250(a)(2)(A).

Again, we disagree. SORNA’s registration requirements in

that section are valid based on the federal government’s “di-

rect supervisory interest” over federal sex offenders. Carr,

130 S.Ct. at 2239. As the Court recently explained in Carr:

it is entirely reasonable for Congress to have

assigned to the federal government a special role in

18062 UNITED STATES v. GEORGE

ensuring compliance with SORNA’s registration

requirements by federal sex offenders — persons

who typically would have spent time under federal

criminal supervision.

Id. at 2238. Compare United States v. Comstock, 130 S. Ct.

1949 (2010) (upholding under the Necessary and Proper

Clause a statute that provided for the civil commitment of

sexually dangerous federal prisoners beyond the date they

would otherwise be released). We therefore affirm George’s

conviction based on his status as a federally convicted sex

offender under § 2250(a)(2)(A).3

III

Ex Post Facto Clause

[9] George argues that he may not be indicted for a viola-

tion of SORNA because the registration requirement of

SORNA as applied to him in this case violates the Ex Post

Facto Clause. Article I, Section 9 of the Constitution prohibits

an ex post facto law where the law (1) imposes a greater pun-

ishment on a defendant than when he was convicted of the

underlying offense; (2) makes a punishment for a crime

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 Sep-

tember 2007. And, as we concluded above, Washington’s failure to imple-

ment SORNA does not bar federal prosecution for George’s failure to

register.

UNITED STATES v. GEORGE 18063

greater than it was when it was committed; or (3) deprives a

defendant of a defense available at the time the act was com-

mitted. Collins v. Youngblood, 497 U.S. 37, 45-46 (1990). For

a criminal penal law to be ex post facto, it must be retrospec-

tive and disadvantage the offender affected by it. Weaver v.

Graham, 450 U.S. 24, 29 (1981). “A law is retrospective if it

changes the legal consequences of acts completed before its

effective date.” Miller v. Florida, 482 U.S. 423, 430 (1987)

(internal quotation omitted).

[10] George’s argument fails because he was under a con-

tinuing obligation to register. His violation of SORNA was

his failure to register as a sex offender after he moved to

Washington. The indictment charged George with failing to

register on or about September 27, 2007. That failure

occurred after the statute had been enacted.

To avoid this result, George argues that the failure to regis-

ter is a one-time crime, rather than a continuing offense. He

moved to Washington before SORNA was enacted, and he

contends his offense, to the extent it was any offense at all,

occurred when he moved there and the offense was complete

when he failed to register within the required time. He cites

Toussie v. United States, 397 U.S. 112, 115-122 (1970) for

the proposition that the crime of failing to register as a sex

offender is a one-time offense. The alleged behavior in Tous-

sie, however, was the failure to register for the draft, not the

failure to register as a sex offender and, more importantly,

included recognition by the Court that the question of whether

a crime is deemed continuing should include consideration of

the “nature of the crime involved.” Toussie, 397 U.S. at 115.

Other circuits that have considered this issue have held that

the crime of failing to register as a sex offender is a continu-

ing offense. United States v. Dixon, 551 F.3d 578, 582 (7th

Cir. 2008) (“[SORNA] creates a continuing offense in the

sense of an offense that can be committed over a length of

time. If the convicted sex offender does not register by the

18064 UNITED STATES v. GEORGE

end of the third day after he changes his residence, he has vio-

lated [SORNA], and the violation continues until he does reg-

ister, just as a prisoner given a two-week furlough is guilty of

escape if he does not appear by the end of the two weeks, and

thus can be prosecuted immediately but his violation contin-

ues as long as he remains at large.”); United States v. Hinck-

ley, 550 F. 3d 926, 936 (10th Cir. 2008) (“An interpretation

of the sex offender registration requirement that defines it in

any way other than as a continuing offense would result in

absurdity. As the Western District of Virginia points out, ‘It

would be illogical for members of Congress to express con-

cern that thousands of sex offenders who were required to

register under state law were evading those registration

requirements and then exempt those same offenders from

SORNA.’ ” (citation omitted)).

[11] We interpret the violation of the sex offender registra-

tion requirement as a continuing offense. George violated

SORNA after it was enacted, and after any question of its

application to him had been removed by the Attorney Gener-

al’s ruling, 72 Fed. Reg. 8894, 8896, thus charging him with

a violation was not a violation of the ex post facto clause.

IV

Conclusion

The district court correctly denied George’s motion to dis-

miss the indictment. The registration requirement under

SORNA required him to register as a sex offender in the State

of Washington, even though Washington had not imple-

mented the statute. SORNA’s registration requirements are a

valid exercise of congressional power, and do not violate the

ex post facto clause of the Constitution.

AFFIRMED.