Submitted June 1, 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Opinion withdrawn and new Opinion Filed Sept. 23, 2013.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.
The opinion filed on October 5, 2012, and appearing at 696 F.3d 922 is withdrawn.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.
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.
The history of Congress's activities in ensuring the registration of sex offenders provides the backdrop to the facts of this case.
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, to " register, and keep the registration current, in each jurisdiction where the offender" resides, works, or goes to school.  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 ...