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United States v. Shoulder

United States Court of Appeals, Ninth Circuit

September 23, 2013

United States of America, Plaintiff-Appellee,
v.
Mark Steven Elk Shoulder, Defendant-Appellant.

Submitted June 1, 2012 [*] Portland, Oregon.

Opinion filed: October 4, 2012.

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

COUNSEL

Lisa J. Bazant, Billings, Montana, for Appellant.

Michael W. Cotter, United States Attorney, J. Bishop Grewell and Marcia Hurd, Assistant United States Attorneys, Billings, Montana, for Appellee.

Before: A. Wallace Tashima, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

SUMMARY [**]

Criminal Law

The panel withdrew an opinion filed October 5, 2012, and filed a superseding opinion affirming a judgment in a case in which the defendant was convicted of failing to comply with the registration requirements set forth in the Sex Offender Registration and Notification Act.

The panel rejected, as foreclosed by United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012), the defendant's argument that application of the SORNA registration requirements to him on the basis of his earlier conviction violates the Ex Post Facto Clause.

The panel rejected as foreclosed by Elkins the defendant's due-process argument that because Montana had not yet conformed its sex offense registration to SORNA's requirements, it was impossible for him to register "as required by" SORNA. The panel also held that because the defendant received notice of his obligation to register under Montana law, he received all the notice the Due Process Clause requires.

Under the reasoning of United States v. Kebodeaux, 133 S.Ct. 2496 (2013), the panel rejected the defendant's argument that Congress lacked the authority under the Property Clause and Necessary and Proper Clause to apply SORNA to him. In so holding, the panel reasoned: (1) the defendant was subject to the Wetterling Act's registration requirements upon his release from prison in May 2008 through August 1, 2008, when SORNA became applicable to him, and his release from federal custody was therefore not unconditional; and (2) because 42 U.S.C. § 14072(i)(2) applied to pre-Act offenders such as the defendant prospectively, not retrospectively, the Wetterling Act's imposition of criminal penalties on individuals who violate the applicable registration requirements does not violate the Ex Post Facto Clause.

The order stated that the parties may file an additional petition for rehearing or rehearing en banc.

ORDER

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.

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, §§ 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 ...


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