EFTA00726931.pdf

Page 1 LexisNexis® LEXSTAT 18 U.S.C. 2250 UNITED STATES CODE SERVICE Copyright ID 2010 Matthew Bender & Company, Inc. a member of the LexisNexis Group (TM) All rights reserved. ••• CURRENT THROUGH PL I 1 1-198, APPROVED 7/2/2010 ■•■ TITLE 18. CRIMES AND CRIMINAL PROCEDURE PART I. CRIMES CHAPTER 109B. SEX OFFENDER AND CRIMES AGAINST CHILDREN REGISTRY Go to the United States Code Service Archive Directory 18 USCS5 2250 § 2250. Failure to register (a) In general. Whoever-- (I) is required to register under the Sex Offender Registration and Notification Act; (2) (A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice [10 USCS 55 801 et seq.]), 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 the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. (b) Affirmative defense. In a prosecution for a violation under subsection (a), it is an affirmative defense that-- (1) uncontrollable circumstances prevented the individual from complying; (2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and (3) the individual complied as soon as such circumstances ceased to exist. (c) Crime of violence. (I) In general. An individual described in subsection (a) who commits a crime of violence under Federal law (including the Uniform Code of Military Justice [10 USCS 55 801 et seq.]), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States shall be imprisoned for not less than 5 years and not more than 30 years. (2) Additional punishment. The punishment provided in paragraph (I) shall be in addition and consecutive to the punishment provided for the violation described in subsection (a). HISTORY: (Added July 27, 2006, P.L. 109-248, Title I, Subtitle B, § 14 1(aX I ), 120 Stat. 602.) HISTORY; ANCILLARY LAWS AND DIRECTIVES EFTA00726931  Page 2 18 USCS § 2250 References in text: The "Sex Offender Registration and Notification Act", referred to in subset. (a), is Title I of Act July 27, 2006, P.L. 109-248. For fill classification of such Act, consult USCS Tables volumes. NOTES: Related Statutes & Rules: Sentencing Guidelines for the United States Courts, 18 USCS Appx §§ 243.5, 243.6. This section is referred to in 8 USCS § 1227; 18 USCS§§ 1001,3142; 42 USCS § 16991. Research Guide: Am Jur: 8A Am fur 2d, Bail and Recognizance § 57. Immigration: 1 Immigration Law and Procedure (rev. ed.), ch 2, The Development of the Immigration Laws § 2.04. Annotations: Validity, Construction, and Application of Federal Sex Offender Registration and Notification Act (SORNA), 42 US.CA. §§ 16901 et seq. [42 USCS§§ 16901 et seq.], its Enforcement Provision, 18 US.CA § 2250 [18 USCS§ 2250], and Associated Regulations. 30 ALR Fed 2d 213. Validity, Construction, and Application of State Statutes Imposing Criminal Penalties for Failure to Register as Required Under Sex Offender or Other Criminal Registration Statutes. 33 ALR6th 91. Law Review Articles: Logan. Parole and Probation: Sex Offender Registration and Community Notification: Past, Present, and Future. 34 NE Jon Crim & Civ Con 3, Winter 2008. Interpretive Notes and Decisions: .1. US Supreme Court Alert I. Generally 2. Constitutionality 3. Indictment 5. Miscellaneous .1. US Supreme Court Alert US Supreme Court Case Alert--On September 30, 2009, Court granted petition for writ of certiorari to Seventh Circuit on question of whether, under Sex Offender Registration and Notification Act (SORNA) provision (18 USCS§ 2250(a)), which imposed criminal penalties of up to 10 years of imprisonment on anyone who was required to register, traveled in interstate or foreign commerce, and knowingly failed to register or update registration--where U.S. Attorney General (through provision codified at 28 CFR § 72.3) assertedly had applied SORNA's registration requirements retroactively to persons who were convicted before date when then President had signed SORNA into law--(1) person whose underlying offense and travel in interstate commerce both allegedly predated SORNA's enactment could properly be criminally prosecuted under § 2250(a) for failure to register; and (2) Federal Constitution's Art. 1, 5 9, cL 3 EFTA00726932  Page 3 18 USCS § 2250 prohibition against ex post facto laws precluded prosecution under § 2250(a) of such person. United States v Dixon (2008, CA7 Ind) 551 F3d 578, cert gr (US) 174 L Ed 2d 631. 1. Generally In case in which defendant was convicted of violating 18 USCS § 2250 and there was no applicable U.S. Sentencing Guideline for that offense, district court committed plain error by not deferring to U.S. Sentencing Commission (Commission); evidence of Commission's policies and goals was publicly available to district court in form of proposed Guideline, now USSG § 2A3.5, and it was undisputed that defendant's sentencing range under § 2A3.5, would be significantly less than 60 month sentence imposed by district court. United States v Sanchez. (2008, CA5 La) 527 F3d 463. Because defendant's indictment under 18 USCS§ 2250 concerned his failure to register as sex offender during gap period between enactment of Sex Offender Registration and Notification Act and Attorney General's retroactivity determination under 42 USCS§ 16913(d), defendant could not be prosecuted for violating Act. United States v Madera (2008, Cl!! Fla) 528 F3d 852, 21 FLW Fed C 745. Defendant, who was convicted of sex offense before enactment of Sex Offender Registration and Notification Act (SORNA), 42 USCS §§ 16901-16991, was properly charged under 18 USCS § 2250(a) with failing to register as sex offender as required by SORNA; 42 USCS§ 16913(b) and (d) concerned only initial registration and did not apply to defendant, so it was not necessary for U.S. Attorney General to have designated SORNA's applicability to past offenders in order for defendant to be subject to 18 USCS§ 2250(a). United States v May (2008, CA8 Iowa) 535 F3d 912. Defendant was improperly convicted pursuant to 18 USCS § 2250(a)(2)(B), part of Sex Offender Registration and Notification Act (SORNA), for failure to register after traveling in interstate commerce because his interstate travel-an unreported move from Oklahoma to Missouri-was completed prior to July 27, 2007, SORNA's effective date, and statute's plain language made it clear that it operated prospectively only; U.S. Congress's use of present tense form of verb "to travel" indicated, pursuant to 1 USCS§ 1, that SORNA's coverage was limited to those individuals who travelled in interstate commerce after SORNA's effective date. United States v Hosted (2008, CAI0 Okla) 545 F3d 1240. Based on Sex Offender Registration and Notification Act's plain language, 18 USCS§ 2250(a)(2)(B) does not apply to individual whose interstate travel was completed before July 27, 2006. United States v Hunted (2008, CA10 Okla) 545 F3d 1240. Defendant's 18 USCS § 2250 conviction for failing to register pursuant to Sex Offender Registration and Notification Act was proper because, after interpreting 42 USCS § 16913(d), court determined that sex offenders who failed to register during "gap period" between Act's enactment and U.S. Attorney General's Interim Rule violated registration requirements of § 16913(a). United States v Hinckley (2008, CA10 Okla) 550 F3d 926. 18 USCS§ 2250 does not require that defendant's travel in interstate commerce postdate Act, any more than it requires that conviction of sex offense that triggers registration requirement postdate it; language of § 2250(a)(2XB) is designed to establish constitutional predicate for statute rather than to create temporal requirement. United States v Dixon (2008, CA7 Ind) 551 F3d 578. 18 USCS§ 2250(a) unambiguously applied to defendant, who had obligation to register as sex offender beginning on February 28, 2007--date that United States Attorney General enacted 28 CFR § 72.3 and therein determined that Sex Offender Registration and Notification Act's registration requirements applied to all offenders, like defendant, who were convicted before July 27, 2006--and travelled in interstate commerce, from Florida to California and back, on July 9-11, 2007, which was well after effective date of statute. United States v Ambert (2009, CA11 Fla) 561 F3d 1202, 21 FLW Fed C 1596. District court properly denied defendant's motion to dismiss indictment charging him under 18 USCS§ 2250 for failing to register as sex offender under Sex Offender Registration and Notification Act (SORNA), 42 USCS§ 16913, because defendant had received notice of state law registration requirements under Cal. Penal Code § 290(b) (2009); defendant cited no authority for his argument that lack of 42 USCS§ 16917 notice was defense to prosecution under 18 USCS§ 2250(a); and there was no reason to believe that SORNA notice provision was intended to dilute effect of state notice requirements, given stated congressional intent in 42 USCS § 16901 to protect public by establishing comprehensive national system for registration of sex offenders. United States v Baccam (2009, CA8 Ark) 562 F3d EFTA00726933  Page 4 18 USCS § 2250 1197. District court did not abuse its discretion in concluding that non-binding decision from another court did not constitute fair and just reason under Fed. R. Crim. P. 11(d)(2)(B) for defendant to withdraw his guilty plea to single count of failure to register as sexual offender in violation of 18 USCS § 2250(a), enforcement provision of Sex Offender Registration and Notification Act; decision was not intervening circumstance of sufficient weight to constitute fair and just reason entitling defendant to withdraw his plea. United States v Ensminger (2009, CA9 Mont) 567 F3d 587. Because Maryland had pre-Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901 et seq., and 18 USCS § 2250, program under which defendant could register and indeed was required to register, defendant could not claim that there was no place to register simply because Maryland had not implemented enhanced standards of SORNA; thus, under plain reading of SORNA, defendant's failure to register in Maryland was federal crime under 18 USCS§ 2250(a), subject to federal punishment--result consistent with SORNA's purpose of strengthening and increasing effectiveness of sex offender registration laws. United States v Gould (2009, CA4 Md) 568 F3d 459. Having been charged with being federally convicted sexual offender who had engaged in interstate travel, and having pleaded guilty to that offense, defendant could not later delete interstate travel facts from his case; those facts were part of his conduct as charged in indictment for his violation of 18 USCS§ 2250 to which he pleaded guilty. United States v George (2009, CA9 Wash) 579 F3d 962. Violation of sex offender registration requirement of 42 USCS§ 16913 as prohibited in 18 USCS § 2250, is continuing offense. United States v George (2009, CA9 Wash) 579 F3d 962. Because Sexual Offenders Registration and Notification Act (SORNA), explicitly required Attorney General (A.G.) to specify applicability of Act to persons convicted prior to effective date of SORNA, and because A. G. did not promulgate regulation making that determination in compliance with Administrative Procedure Act, defendant was not subject to SORNA's requirements during period indicated in indictment and his motion to dismiss indictment should have been granted. United States v Cain (2009, CA6 Ohio) 583 F3d 408, 2009 FED App 361P. Because Sex Offender Registration and Notification Act was applied retroactively to sex offenders, and it was undisputed that Alabama maintained sex offender registry during relevant time period which required sex offenders to register and provide updated information upon changing residences, defendant's failure to register caused his conviction to be affirmed. United States v Brown (2009, CAll Ala) 586 F3d 1342, 22 FLW Fed C 264. Defendant admitted that he knew he was required to register in Alabama upon moving but did not register, which was sufficient to violate 18 USCS§ 2250(a); defendant cited no authority for proposition that lack of notice by federal government ofhis Sex Offender Registration and Notification Act, 42 USCS§§ 16901 et seq., obligations was element of, or defense to, prosecution under 18 USCS§ 2250(a). United States v Gnffey (2009, C411 Ala) 589 F3d 1363, 22 FLW Fed C 328. When Sex Offender Registration and Notification Act was enacted, every State had registration requirements for sex offenders; these circumstances do not permit court to conclude that defendant's due process rights, based on lack of notice, were violated when he is charged with failing to register under 18 USCS§ 2250(a). United States v Shenandoah (2010, CA3 Pa) 595 F3d 151. Defendant's above-range sentence of 48 months incarceration with 30-year term of supervised release for failing to register as sex offender in violation of 18 USCS§ 2250 was reasonable where his lengthy criminal history, his offenses, and his repeated failure to register made him danger to society who posed high risk ofrecidivism; he was sentenced him in accordance with Tier III sex-offender provision of USSG § 2A3.5(a)(1) as he met criteria of Tier III sex-offender laid out in 42 USES§ 16911(4). United States v Lowry (2010, CA8 Ark) 595 F3d 861 Because court interpreted Sex Offender Registration and Notification Act, as requiring sex offender to appear in person to update his registration information within three days of vacating his fixed residential address with no intention ofreturning, it concluded that defendant violated 18 USCS§ 2250(a). United States v Van Buren (2010, CA2 NY) 599 F3d 170. Charges that defendants had violated 18 USCS§ 2250 by failing to update their sex-offender registrations had to be dismissed because defendants were under no obligation to register, pursuant to 42 USCS§ 16913, part of Sex Offender Registration and Notification Act (SORNA), at time of their indictments in November and December of 2006; § 16913(d) requires U.S. Attorney General to animate SORNA's provisions to previously convicted offenders, and Attorney General did not issue rule stating that SORNA applied retrospectively until after defendants were indicted. EFTA00726934  Page 5 18 USCS § 2250 United States v Kapp (2007, MD Pa) 487 F Supp 2d 536 (criticized in United States v Beasley (2007, ND Ga) 2007 US Dist LEXIS 85793). Plain reading of general venue statute suggests that failing to register under Sex Offender Registration and Notification Act, Pub. L. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006), is continuing offense since it involves element of interstate or foreign travel; accordingly, it would be proper to prosecute violation of 18 USCS§ 2250 in any district through which defendant has moved. United States v Hinen (2007, WD Va) 487 F Stipp 2d 747 (criticized in United States v Barnes (2007, SD NY) 2007 US Dist LEXIS 53245) and (criticized in United States v Muzio (2007, ED Mo) 2007 US Dist LEXIS 54330) and (criticized in United States v Cole (2007, SD Ill) 2007 US Dist LEXIS 68522) and (criticized in United States v Deese (2007, WD Okla) 2007 US Dist LEXIS 70677) and (criticized in United States v Gill (2007, DC Utah) 520 FSupp 2d 1341) and (criticized in United States v Howell (2007, ND Iowa) 2007 US Dist LEXIS 83224) and (criticized in United States v Mantia (2007, WD La) 2007 US Dist LEXIS 96018) and (criticized in United States v Gould (2007, DC Md) 526 F Supp 2d 538) and (criticized in United States v Howell (2008, ND Iowa) 2008 US Dist LEXIS 7810). Registry system was intended as nationwide public safety system, 42 USCS § 16901, and previous offenders may be convicted for failing to register under Sex Offender Registration and Notification Act (SORNA), 42 USCS §§ 16901 et seq., does not increase punishment for their prior offenses--indeed, only upon offender's failure to register under SORNA, new offense, do enhanced penalties apply, 18 USCS § 2250(a); accordingly, SORNA does not violate Ex Post Facto Clause. United States v Gould (2007, DC Md) 526 FSupp 2d 538 (criticized in United States v Howell (2008, ND Iowa) 2008 US Dist LEXIS 7810). Defendant's indictment for violating Sex Offender Registration and Notification Act (SORNA), filed on November 24, 2006, was dismissed because SORNA did not apply to him. Congress assigned retroactivity question of SORNA to Attorney General, and Attorney General did not promulgate any regulations regarding retroactivity until February 2007. United States v Smith (2007, SD W Va) 528 F Supp 2d 615 (criticized in United States v Marcantonio (2007, WD Ark) 2007 US Dist LEXIS 55645) and (criticized in United States v Beasley (2007, ND Ga) 2007 US Dist LEXIS 85793). State's failure to implement Sex Offender Registration and Notification Act (SORNA) had no bearing on defendant's free-standing duty under 42 USCS§ 16913(a) and 18 USCS§ 2250 to register, and keep registration current in each jurisdiction where he resided United States v Crum (2008, WD Wash) 2008 US Dist LEXIS 83563 (criticized in United States v Myers (2008, SD Fla) 591 F Supp 2d 1312, 21 FLW Fed D 473). Defendant, as convicted sex offender, was well aware of his duty to update his registration in New York for 10 years; thus, when he moved to Kentucky and failed to register or update his registration, his prior knowledge of duty to register under state law qualified as effective notice under Sex Offender Registration and Notification Act (SORNA); his notice of his registration requirements under New York law was sufficient to support charge that he knowingly violated SORNA, specifically 18 USCS§ 2250(a). United States v Samuels (2008, ED Ky) 543 FSupp 2d 669 (criticized in United States v Howell (2008, ND Iowa) 2008 US Dist LEXIS 7810). Sex Offender Registration and Notification Act (SORNA) clearly defines what conduct is proscribed by 18 USCS§ 2250(a), and Attorney General's interim rule, 28 CFR § 72 (2007), determining its retroactivity to certain offenders convicted before SORNA's enactment, is not unlawful delegation of Congressional authority. United States v Samuels (2008, ED Ky) 543 F Supp 2d 669 (criticized in United States v Howell (2008, ND Iowa) 2008 US Dist LEXIS 7810). Under plain wording of 18 USCS § 2250, in order for violation to occur, both travel and failing to register have to occur after effective date of statute. United States v Gillette (2008, DC Vi) 553 F Supp 2d 524. In case in which defendant was arrested for violating 18 USCS§ 2250(a), Sex Offender Registration and Notification Act, but there was no evidence that he moved through present federal district after leaving Mexico but before ultimately residing in Florida, venue was not proper in present federal district. United States v Natividad-Garcia (2008, WD Ter) 560 FSupp 2d 561. Indictment charging defendant with violating 18 USCS § 2250 by failing to register and update his registration as sex offender under Sex Offender Registration and Notification Act, 42 USCS§§ 16901 et seq., was sufficient under Fed. R. Crim. P. 7, as each element of crime was sufficiently pled and defendant was apprised of essential facts necessary to enable him to prepare his defense against offense charged. United States v Torres (2008, WD Ter) 573 F Sapp 2d 925. 18 USCS§ 2250(a) applied to any person who was required to register under Sex Offender Registration and EFTA00726935  Page 6 18 USCS § 2250 Notification Act (SORNA) and SORNA applied to person who was "sex offender," which is defined as individual who was convicted of sex offense; by virtue of his conviction of second degree sexual assault, defendant fit within statutory definition of sex offender, and straightforward reading of language of 42 USCS§ I6913(a) suggested that, since he was required to register in Rhode Island and Maine, jurisdictions where he was residing, he was also required by SORNA to do so; therefore, by failing to so register, indictment properly alleged that defendant violated SORNA; thus, court rejected defendant's allegation that indictment was defective since it failed to allege that either state of Maine or state of Rhode Island implemented SORNA. United States v Stevens (2008, DC Me) 578 FSupp 2d 172. 42 USCS§ 16913 and 18 USCS§ 2250 should be treated as interrelated components of larger whole of Sex Offender Registration and Notification Act (SORNA) sufficient to overcome any deficiencies when viewing 42 USCS § 16913 in isolation; when considering SORNA as whole, it is abundantly clear that SORNA does not punish sex offenders for intrastate failure to register; person who has never traveled outside his birth state can never be federal felon under SORNA; federal government gains criminal jurisdiction only when person required to register under SORNA travels in interstate commerce. United States v Pena (2008, WD Tex) 582 FSupp 2d 851 (criticized in United States v Myers (2008, SD FM) 21 FLW Fed D 473). As set forth in 18 USCS§ 2250(a), term "knowingly" means knowledge that one must register as sex offender and knowledge that one did not register as such, but not knowledge that one must register under Sex Offender Registration and Notification Act. United States v Torres (2008, WD Tex) 599 F Supp 2d 767. Defendant "knowingly" failed to register or update his registration under Sex Offender Registration and Notification Act (SORNA) because he signed form acknowledging that he knew that he must register and update his registration and then failed to do so; actus reus consisted of failing to register and update, and defendant did so knowing that he was required to register and update; knowledge of SORNA's requirements was not act, and nothing else on face of statute—such as use of term "willingly"--indicated that Congress intended to depart from requirements of general intent crime. United States v Torres (2008, WD Tex) 599 F Supp 2d 767. To degree that Sex Offender Registration and Notification Act (SORNA) merely confers federal jurisdiction on otherwise illegal conduct, SORNA does not require that defendant know that conduct is illegal under SORNA. United States v Torres (2008, WD Ter) 599 F Supp 2d 767. Defendant, who was convicted of sex offense under Uniform Code of Military Justice, was sex offender who was required to register under 42 USCS§ 16511(5) in all jurisdictions where he lived or was employee, and was required to keep his registration current under 42 USCS§ 16913(b)-(d); because defendant signed form acknowledging that he knew that he must register and update his registration and did not do so, he knowingly failed to register or update his registration; thus, defendant was guilty of violating SORNA's criminal provision, 18 USCS§ 2250, beyond reasonable doubt. United States v Torres (2008, WD Ter) 599 F Supp 2d 767. Defendant's argument that Sex Offender Registration and Notification Act (SORNA) did not apply in particular state until that state had passed implementing legislation was rejected; court also rejected defendant's argument that he could not be prosecuted for violating 18 USCS§ 2250(a) because he was not obligated to register until informed of obligation by Attorney General United States v Hernandez (2009, ED Mich) 615 F Supp 2d 601. Sex Offender Registration and Notification Act does not violate non-delegation doctrine. United States v Barner (2009, ND NY) 635 FSupp 2d 138. In case in which defendant had been indicted on one count of failure to register or update his registration as sex offender as required by Sex Offender Registration and Notification Act (SORNA), in violation of 18 USCS§ 2250(a), he unsuccessfully moved to dismiss indictment by arguing that government was required to provide him with actual notice of SORNA's registration requirement before prosecuting him for knowingly failing to register; defendant's due process rights had not been violated because he had signed sex offender notifications in both Mississippi and Iowa, and his signatures on those registration notifications were sufficient evidence that he was made aware ofhis legal duty to register. United States v Johnson (2009, SD Miss) 652 FSupp 2d 720. Unpublished Opinions Unpublished: Defendant was not subject to Sex Offender Registration and Notification Act's (SORNA) criminal sanctions during period alleged in indictment because (I) SORNA did not apply to defendant unless United States Attorney General promulgated valid regulation that subjected defendant to SORNA's registration requirements during period covered by his indictment; (2) defendant's indictment charged failure to register from October 26, 2006, through EFTA00726936  Page 7 18 USCS § 2250 March 20, 2007; and (3) in prior action, court held that Attorney General's regulation was not effective against defendant because his indictment covered period ending on March 28, 2007, less than thirty days after promulgation of regulation, and month before close of comment period. United States v Doshak (2009, CA6 Ohio) 2009 FED App 835N. Unpublished: Defendant's 15-month sentence for violating 18 USCS § 2250(a) was reasonable; had U.S. Sentencing Guidelines Manual § 2A3.5 retroactivity issue been decided in defendant's favor and § 2A3.5 not been applied, district court would have had to look to 18 USCS§ 3553(a) factors, but district court's 15-month sentence, well below 10-year statutory maximum, was not unreasonable. United States v Shim (2008, CA11 Fla) 2008 US App LEXIS 14920. Unpublished: Defendant committed violation of 18 USCS§ 2250 because he was convicted of sex offense prior to Sex Offender Registration and Notification Act (SORNA), traveled interstate in gap period between SORNA's enactment on July 27, 2006, and United States Attorney General's retroactivity determination on February 28, 2007, and failed to register as of his arrest on May 9, 2007, which was more than three business days after his obligation to register in accordance with 42 USCS 16913(c), which arose following attorney general's ruling. United States v Cardenas (2009, CA11 Fla) 2009 US App LEXIS 8389. Unpublished: Because a presentence report (PSR) stated an investigation was ongoing as to defendant's prior arrest for "corporeal injury to child" where defendant denied bruising his infant son's rear end, but he apologized and asked for forgiveness during questioning, the statements in the PSR were sufficiently reliable for the district court to have imposed, as condition of supervised release upon his conviction for failure to register as a sex offender, the requirement that defendant obtain his probation officer's permission for unsupervised contact with minors. United States v Christian (2009, CA5 Ter) 2009 US App LEXIS 19911 Unpublished: Wyoming's failure to implement Sex Offender Registration and Notification Act's requirements may have resulted in reduction of federal justice assistance funding, but it was not excuse for defendant's failure to register. United States v Kueker (2009, CA10) 2009 US App LEXIS 24100. Unpublished: In case in which defendant pled guilty to failing to register as sex offender under Sex Offender Registration and Notification Act, he argued unsuccessfully that district court plainly erred in failing to advise him of consequences of his guilty plea by incorrectly stating minimum and maximum terms of supervised release; that claim was subject to plain error review, and defendant own conduct in failing to object at sentencing to presentence investigation report, which correctly set forth minimum and maximum terms of supervised release, indicated that his substantial rights were not affected. United States v Votta (2010, CAll Fla) 2010 US App LEXIS 3238. Unpublished: In case in which defendant pled guilty to failing to register as sex offender under Sex Offender Registration and Notification Act, he argued unsuccessfully that 10-year term of supervised release imposed was unreasonable because it was greater than necessary; he failed to consider that district court sentenced him to only 6 months' imprisonment, well below U.S. Sentencing Guidelines range of 15 to 21 months, and he failed to show that his within-range sentence of 10 years' supervised release, to follow period of six months' imprisonment, was outside range ofreasonable sentences under facts of case. United States v Votta (2010, CA11 Fla) 2010 US App LEXIS 3238. 2. Constitutionality Application to defendant of 18 USCS§ 2250(a), which penalized defendant for failing to register as required under Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, did not violate Ex Post Facto Clause; although defendant became sex offender before SORNA was enacted, being sex offender merely identified to whom 18 USCS § 2250(a) applied and was not triggering event; statute was not retrospective, as it did not punish defendant for previously being convicted of sex crime. United States v May (2008, CA8 Iowa) 535 F3d 912. Application to defendant of 18 USCS§ 2250(a), which penalized defendant for failing to register as required under Sex Offender Registration and Notification Act, 42 USCS§§ 16901-16991, did not violate defendant's due process rights, as there was no basis for applying exception to general rule that "ignorance of law is no excuse"; defendant admitted knowing of obligation to register as sex offender under state law. United States v May (2008, CA8 Iowa) 535 F3d 912. Application to defendant of 18 USCS§ 2250(a), which penalized defendant for failing to register as required under Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901-16991, did not violate Commerce Clause, as SORNA arose from Congress's authority to regulate persons or things in interstate commerce and use of channels of interstate commerce; 18 USCS§ 2250(a)(2)(B) includes express and clear jurisdictional element for EFTA00726937  Page 8 18 USCS § 2250 individuals not convicted pursuant to federal jurisdiction. United States v May (2008, CA8 Iowa) 535 F3d 912. Defendant's prosecution under Sex Offender Registration and Notification Act (SORNA), 18 USCS § 2250, did not violate Ex Post Facto Clause by retroactively increasing punishment for past offenses; SORNA was both civil in its stated intent and nonpunitive in its purpose and therefore it did not violate Ex Post Facto Clause; in enacting SORNA, U.S. Congress expressly, pursuant to 42 USCS§ 16901, declared its intent to create comprehensive national system, for registration of sex offenders in order to protect public from sex offender and offenders against children, and in response to vicious attacks by violent predators; neither that placement of SORNA's failure to register provisions appeared in federal criminal code nor that enforcement of SORNA was vested in U.S. Attorney General was enough to overcome that clearly stated Congressional intent. United States v Lawrance (2008, CA10 Okla) 548 F3d 1329. Defendant's argument that Sex Offender Registration Notification Act (SORNA) and its failure to register provisions, 18 USCS§ 2250, violated Commerce Clause because they exceeded authority granted to U.S. Congress to regulate interstate commerce, failed; specifically, he claimed that his conduct was purely intrastate because it concerned only his failure to register, which had no effect on interstate commerce; however, sex offenders were, pursuant to 42 USCS§ 16913(a), required to register, and to keep registration current, in each jurisdiction where offender resided, where offender was employee, and there offender was student, and whether such activity had substantial effect on interstate commerce was irrelevant because U.S. Congress had authority to regulate this type of activity; Congress could regulate interstate commerce to extent of forbidding and punishing use of such commerce as agency to promote immorality, dishonesty, or spread of any evil or harm to people of other states from state of origin, and SORNA clearly intended to regulate evasion of sex offender registration requirements by sex offenders who had crossed jurisdictional lines. United States v Lawrance (2008, CA10 Okla) 548 F3d 1329. Though defendant argued that application of Sex Offender Registration Notification Act (SORNA), 18 USCS§ 2250, to his conduct constituted due process violation, specifically because he contended that SORNA did not apply to him until promulgation of U.S. Attorney General's Interim Rule and that he was afforded no statutory notification of SORNA's registration requirements, defendant knew of his obligation to register under state law and Jacob Wetterling Act, 42 USCS§ 14071, and that he was required to keep his registration current; moreover, 42 USCS§ 16913(d) merely clarified SORNA's applicability to offenders in defendant's position-with or without rule, SORNA was applicable to such offenders from its enactment date onward; furthermore, notice of defendant's obligations under state law was sufficient to satisfy Due Process Clause's requirements; because defendant was arrested post-SORNA, and even post-Interim Rule, it was presumed that he was familiar with law. United States v Lowrance (2008, CA10 Okla) 548 F3d 1329. Sex Offender Registration and Notification Act, 18 USCS§ 2250(a)(2)(B), did not, as it was applied to defendant's case, violate Ex Post Facto Clause, by penalizing his pre-enactment interstate travel; because defendant's interstate travel took place both before and after enactment date, issue was irrelevant; moreover, 42 USCS§ 16913(d) applied only to those offenders who were unable to initially register, and not to all offenders who were convicted prior to enactment date; because defendant was convicted of sexual offense prior to enactment date and was informed of his duty to register as sex offender and did so, § 16913(d) did not apply to him. United States v Lawrance (2008, CA10 Okla) 548 F3d 1329. Neither Sex Offender Registration and Notification Act's registration requirements nor criminal penalties attached to noncompliance in 18 USCS§ 2250 violate Er Past Facto Clause. United States v Hinckley (2008, CA10 Okla) 550 F3d 926. Defendant's indictment for failure to register under 18 USCS§ 2250 due to acts committed prior to Sex Offender Registration and Notification Act's effective date did not violate Ex Post Facto Clause because failure to register was continuing offense. United States v Hinckley (2008, CA10 Okla) 550 F3d 926. Application of 18 USCS § 2250 violated Ex Post Facto Clause, U.S. Const. art. I, § 9, as to one defendant who was convicted of sex offense before passage of Act and who was not given reasonable time to register after Act became applicable to defendant pursuant to 28 CFR § 72.3; defendant was charged with failing to register within about five weeks after § 72.3 was issued; however, there was no ex post facto violation as to second defendant who had still failed to register nearly five months after § 72.3 was issued. United States v Dixon (2008, CA7 Ind) 551 F3d 578. Application of 18 USCS § 2250 to defendant did not violate due process based on lack of notice to defendant of Act's enactment, as circumstances existed that might have moved defendant to inquire as to necessity of registration; defendant registered as sex offender in South Carolina and would have known that registration in Indiana was necessary EFTA00726938  Page 9 18 USCS § 2250 when defendant moved there. United States v Dixon (2008, CA7 Ind) 551F3d 578. Because defendants' indictments were based on conduct that pre-dated Attorney General's interim rule specifying that Sex Offender Registration and Notification Act's (SORNA) registration requirements applied to pre-SORNA offenders, defendants' convictions were reversed, and sentences imposed in connection with those convictions were vacated; defendants' indictments were based on conduct occurring prior to Attorney General's issuance of interim rule, at time when SORNA's registration requirements did not yet apply to them, and defendants could not be prosecuted for conduct that was not criminal at time it was committed. United States v Hatcher (2008, CA4 Va) 560 F3d 222. Defendant was properly convicted of failing to register as sex offender under 18 USCS§ 2250 because his obligation to register arose on date of retroactivity determination by Attorney General under 42 USCS§ 16913, defendant had three days to fulfill his duty, and he failed to do so after traveling in interstate commerce; fact that defendant's travel occurred prior to retroactivity determination did not preclude prosecution and did not violate EX Post Facto Clause. United States v Dumont (2009, CA I I Fla) 21FLWFed C 1401. Defendants were properly convicted under 18 USCS § 2250 for failing to comply with sex offender registration requirements under 42 USCS § 16913; 18 USCS § 2250 is constitutional under Commerce Clause, and 42 USCS § 16913 is constitutionally authorized under Commerce Clause and Necessary and Proper Clause, U.S. Const. art. 1, § 8, cl. 18; covering registration of wholly intrastate sex offenders is merely incidental to Congress's tracking of sex offenders in interstate commerce. United States v Howell (2009, CA8 Iowa) 552 F3d 709. Iowa district court was proper venue to prosecute defendant under 18 USCS§ 2250 for failing to register as sex offender after traveling in interstate commerce where defendant was charged with failing to notify Iowa of change in residency to Texas and failing to register in Texas; prosecution in Iowa did not violate U.S. Const. art. III, § 2, or Sixth Amendment; defendant's violation commenced in Iowa, so prosecution in Iowa was authorized under 18 USCS § 3237, and failure to inform Iowa of move was material part of violation. United States v Howell (2009, CA8 Iowa) 552 F3d 709. Court of appeals rejected defendant's argument that Sex Offender Registration and Notification Act (SORNA) violated Ex Post Facto Clause, U.S. Const. art. I, § 9, a 3, on grounds that statute allegedly imposed on him retroactive duty to register as sex offender and enhanced punishment for his 1974 California conviction for crimes against children, because superseding indictment charged not only that defendant failed to register as sex offender after effective date of United States Attorney General's retroactivity determination (that SORNA's registration requirements applied to all offenders, like defendant, who were convicted before July 27, 2006), but also that defendant performed every action necessary for prosecution—i.e., failing to register as required and traveling in interstate travel--after effective date of Attorney General's retroactivity determination. United States v Ambert (2009, CA11Fla) 561F3d 1202, 21FLW Fed C 1596. Sex Offender Registration and Notification Act (SORNA) did not violate defendant's procedural due process rights by causing his name to be placed on sex offender registry without first providing him with hearing to assess risk of recidivism and current dangerousness; fact that defendant sought to prove that he was neither dangerous nor likely to be repeat offender was of no moment under SORNA, because reporting requirements turned on his conviction alone--fact that defendant had procedurally safeguarded opportunity to contest; accordingly, his procedural due process challenge to statute was rejected on appeal. United States v Amber! (2009, CA11 Fla) 561 F3d 1202, 21FLW Fed C 1596. Sex Offender Registration and Notification Act (SORNA) did not compromise defendant's substantive due process rights by causing his name to be placed on sex offender registry without first providing him with opportunity to challenge his prior conviction; putative right of defendant, as sexual offender, to refuse to register under (SORNA) and to prevent publication was contested right at issue, and restrictions contained in SORNA were rationally related to Congress' legitimate goal in protecting public from recidivist sex offenders; moreover, state's publication of truthful information that was already available to public did not infringe fundamental constitutional rights of liberty and privacy; therefore, defendant's inability to challenge his conviction before publication did not violate substantive due process. United States v Ambert (2009, CAII Fla) 561F3d 1202, 21FLW Fed C 1596. Congress did not exceed its authority under Commerce Clause, U.S. Const. art. 1, § 8, cl. 3, when it passed 18 USCS§ 2250(a) because when sex offender traveled from one state to another, he was instrumentality of interstate commerce; by regulating such persons in SORNA, Congress acted under its Commerce Clause power to regulate instrumentality. United States v Ambert (2009, CA11Fla) 561F3d 1202, 21FLWFed C 1596. Defendant was not entitled to dismissal of indictment under 18 USCS § 2250 for failing to register as sex offender EFTA00726939  Page 10 18 USCS § 2250 as required under Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, based on claim that SORNA violated Commerce Clause, because § 2250 and 42 USCS§ 16913 were valid exercises of congressional authority under Commerce Clause. United States v Hacker (2009, CA8 Neb) 565 F3d 522. Defendant lacked standing to bring Tenth Amendment challenge to Sex Offender Registration and Notification Act, 42 USCS§§ 16901.16991, and its criminal enforcement provision, 18 USCS§ 2250(a), because private party could not assert such claim absent involvement of state or its instrumentalities. United States v Hacker (2009, CA8 Neb) 565 F3d 522. Because defendant, who pleaded guilty under 18 USCS§ 2250(a) to failing to register as sex offender, was not unable to comply with initial registration requirements under 42 USCS§ 16913(h) of Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, defendant lacked standing to claim that delegation of authority to U.S. Attorney General to determine SORNA's retroactive effect was impermissible under U.S. Const art. 1, § 1; defendant also lacked standing to claim that Attorney General's interim order regarding application of SORNA violated notice and comment requirements under 5 USCS§ 553(d) of Administrative Procedure Act. United States v Hacker (2009, CA8 Neb) 565 F3d 522. Defendant was not entitled to dismissal of indictment under 18 USCS § 2250 for failing to register as sex offender as required under Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, based on claim that SORNA violated Commerce Clause, because § 2250 and 42 USCS§ 16913 were valid exercises of congressional authority under Commerce Clause. United States v Hacker (2009, CA8 Neb) 565 F3d 522. 18 USCS§ 2250(a) does not violate Commerce Clause; Congress has authority to regulate persons in interstate commerce, especially persons who move from State of conviction to another State and there fail to register, as they use instrumentalities of interstate commerce; Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901 et seq., and 18 USCS§ 2250, clearly intends to regulate interstate activity, i.e., evasion of sex offender registration requirements by sex offenders who have crossed jurisdictional lines. United States v Gould (2009, CA4 Md) 568 F3d 459. Defendant was punished for failing to register during period after Sex Offender Registration and Notification Act (SORNA), 42 USCS §§ 16901 et seq., and 18 USCS§ 2250, was enacted, beginning at least as early as February 28, 2007, when Attorney General issued his Interim Regulations clarifying that SORNA applied to pre-SORNA sex offenders; because defendant was punished for his conduct after enactment of SORNA provision criminalizing conduct, his punishment did not violate Et Post Facto Clause. United States v Gould (2009, CA4 Md) 568 F3d 459. Requiring defendant to register as a sex offender before and after interstate travel--which clearly facilitated monitoring with a minimal practical impact was reasonably adapted to ensure that sex offenders registered and updated previous registrations when moving, thus, defendant's conviction under 18 USCS § 2250(a) did not violate the Commerce Clause. United States v Whaley (2009, CA5 Ter) 577 F3d 254. In a case in which defendant challenged the constitutionality of the federal Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, and its corresponding criminal offense statute, 18 USCS§ 2250, he unsuccessfully argued that SORNA violated the violated the Commerce Clause because it did not establish a nexus to interstate commerce; SORNA derived its authority from each prong of the Lopez test--and most specifically, the ability to regulate persons or things in interstate commerce and the use of the channels of interstate commerce; therefore, SORNA provided a sufficient nexus to interstate commerce. United States v Zuniga (2009, CA8 Neb) 579 F3d 845. In a case in which defendant challenged the constitutionality of the federal Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, and its corresponding criminal offense statute, 18 USCS§ 2250, he argued that SORNA violated the non-delegation doctrine because Congress improperly delegated authority to legislate the scope of SORNA to the Attorney General; because defendant was able to register pursuant to SORNA but failed to do so, 42 USCS§ 16913(d) did not apply to him and he lacked standing to bring a challenge to that section. United States v Zuniga (2009, CA8 Neb) 579 F3d 845. In a case in which defendant challenged the constitutionality of the federal Sex Offender Registration and Notification Act (SORNA), 42 USCS§§ 16901.16991, and its corresponding criminal offense statute, /8 USCS§ 2250, he lacked standing to argue that SORNA violated the Tenth Amendment; private party did not have standing to assert that the federal government was encroaching on state sovereignty in violation of the Tenth Amendment absent the involvement of a state or its instrumentalities, a