FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 09-10249
v.
BRANDON DINESHU BEGAY, AKA D.C. No.
3:08-cr-01203-
Brandon Begay, AKA Brandon DGC-1
Dineshe Begay,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 09-10258
Plaintiff-Appellee, D.C. No.
v. 3:08-CR-01202-
OZZY CARL WATCHMAN, DGC-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted
June 15, 2010—San Francisco, California
Filed September 20, 2010
Before: Mary M. Schroeder and Jay S. Bybee, Circuit
Judges, and Irma E. Gonzalez, Chief District Judge.*
*The Honorable Irma E. Gonzalez, United States District Judge for the
Southern District of California, sitting by designation.
14423
14424 UNITED STATES v. BEGAY
Opinion by Judge Bybee
14426 UNITED STATES v. BEGAY
COUNSEL
Milagros A. Cisneros, Assistant Federal Public Defender,
Phoenix Arizona, for the defendants-appellants.
Joan G. Ruffennach, Assistant U.S. Attorney, Phoenix, Ari-
zona, for the plaintiff-appellee.
OPINION
BYBEE, Circuit Judge:
Defendants-Appellants Brandon Dineshu Begay and Ozzy
Carl Watchman (collectively, “Defendants”1) are convicted
sex offenders. They initially registered as sex offenders with
the State of Arizona pursuant to the Sex Offender Registration
and Notification Act (“SORNA”), but did not update their
registration information when they moved to a different Ari-
zona address within the territory of the Navajo Nation, a fed-
erally recognized Indian tribe. Defendants were indicted for
failing to update their registration, in violation of 18 U.S.C.
§ 2250(a) and 42 U.S.C. §§ 16911 and 16913, and they
moved to dismiss their indictments. The district court denied
their motions, and Defendants now appeal that decision.
1
We resolve these cases in a single opinion because they raise the same
legal issues and involve virtually identical fact patterns, district court opin-
ions, and briefs.
UNITED STATES v. BEGAY 14427
Defendants argue that SORNA did not require them to
update their registration with the State of Arizona while they
were residing in the Navajo Nation, and that they could not
update their registration with the Navajo Nation because it
had not yet established a sex offender registry. Based on these
premises, they invoke SORNA’s affirmative defense, which
applies when “uncontrollable circumstances prevent[ ] the
individual from complying” with SORNA. 18 U.S.C.
§ 2250(b)(1). Alternatively, they argue that if SORNA did
require them to update their registration with Arizona,
SORNA violates the Due Process Clause of the Fifth Amend-
ment and the Ex Post Facto Clause.
We hold that SORNA required Defendants to update their
registration with Arizona, and because nothing prevented
them from doing so, no “uncontrollable circumstances pre-
vented [them] from complying” with SORNA. Moreover, we
hold that this application of SORNA violates neither the Due
Process Clause nor the Ex Post Facto Clause. Thus, we affirm
the district court’s denial of Defendants’ motions to dismiss
their indictments.
I
We begin with the relevant background information:
SORNA’s history and framework, the Navajo Nation’s expe-
rience with SORNA, and the facts and proceedings in each of
the Defendants’ cases.
A
In 1994, Congress enacted the Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration
Program (“Wetterling Act”). 42 U.S.C. §§ 14071-73. Under
the Wetterling Act, states were given three years to establish
a sex offender registration program in compliance with the
Act or forfeit 10 percent of federal funding for a state and
local law enforcement assistance program. Id. § 14071(g).
14428 UNITED STATES v. BEGAY
The Wetterling Act required convicted sex offenders to regis-
ter their addresses with states, which would then relay this
information to the FBI, establishing a national database of sex
offender data. See id. § 14071(b)(2). The Wetterling Act also
required states, pursuant to a 1996 amendment known as
“Megan’s Law,” to “release relevant information that is nec-
essary to protect the public concerning a specific person
required to register under this section, . . . includ[ing] mainte-
nance of an Internet site containing such information that is
available to the public.” Id. § 14071(e)(2). As a result of the
Wetterling Act, by 2000, all fifty states and the District of
Columbia had both sex offender registration systems and
community notification programs. However, “Congress
neglected to address Indian tribes in any way in the Jacob
Wetterling Act or Megan’s Law.” Virginia Davis & Kevin
Washburn, Sex Offender Registration in Indian Country, 6
OHIO ST. J. CRIM. L. 3, 8 (2008).
On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act of 2006 (“Adam Walsh Act”). Pub.
L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006).
Title I of the Adam Walsh Act established SORNA, the
declared purpose of which was “to protect the public from sex
offenders and offenders against children . . . [by] establish[-
ing] a comprehensive national system for the registration of
those offenders.” 42 U.S.C. § 16901. SORNA was enacted to
succeed and enhance the registration requirements of the Wet-
terling Act by expanding the offenses for which registration
is required, requiring more information from registrants,
increasing the frequency and duration of reporting, and
imposing stricter penalties for failure to report. See id.
§ 16911 et seq.
The basic requirement under SORNA is that “[a] sex offend-
er[2] shall register, and keep the registration current, in each
2
“Sex offender” is defined as “an individual who was convicted of a sex
offense.” Id. § 16911(1). SORNA expanded the range of crimes covered
by that term and established three “tiers” of sex offenders based on the
seriousness of the sex offense of which they were convicted. See id.
§ 16911(2)-(8).
UNITED STATES v. BEGAY 14429
jurisdiction where the offender resides,[3] where the offender
is an employee, and where the offender is a student.” Id.
§ 16913(a). SORNA further specifies the process by which a
sex offender must “[k]eep[ ] 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 juris-
diction involved pursuant to [§ 16913(a)] and inform
that jurisdiction of all changes in the information
required for that offender in the sex offender regis-
try. That jurisdiction shall immediately provide that
information to all other jurisdictions in which the
offender is required to register.
Id. § 16913(c).
SORNA imposes criminal penalties on sex offenders who
fail to abide by its requirements, providing that “[w]hoever
. . . knowingly fails to register or update a registration as
required by [SORNA] shall be fined under this title or impris-
oned not more than 10 years, or both.” 18 U.S.C.
§ 2250(a)(3). However, SORNA provides an affirmative
defense for failure to register if “(1) uncontrollable circum-
stances prevented the individual from complying; (2) the indi-
vidual 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.” Id. § 2250(b).
SORNA also expanded the jurisdictions included in the
registration program, defining “jurisdiction” under § 16913(a)
to include all fifty states, the District of Columbia, Puerto
Rico, Guam, American Samoa, the Northern Mariana Islands,
3
“Resides” is defined, “with respect to an individual, [as] the location
of the individual’s home or other place where the individual habitually
lives.” Id. § 16911(13).
14430 UNITED STATES v. BEGAY
the Virgin Islands, and, “[t]o the extent provided and subject
to the requirements of section [16927] of this title, a federally
recognized Indian tribe.” 42 U.S.C. § 16911(10). Section
16927 of Title 42, in turn, permits federally recognized Indian
tribes to either “(A) elect to carry out [SORNA] as a jurisdic-
tion subject to its provisions; or (B) elect to delegate its func-
tions under [SORNA] to another jurisdiction or jurisdictions
within which the territory of the tribe is located.” Id.
§ 16927(a)(1).
Jurisdictions covered under SORNA were given three years
—until July 27, 2009—to comply with its requirements, id.
§ 16924(a)(1), or face a reduction of federal funding, id.
§ 16925(a)(4). However, the statute gave the Attorney Gen-
eral the authority to “authorize up to two 1-year extensions of
th[is] deadline.” Id. § 16924(b). On May 26, 2009, the Attor-
ney General authorized a one-year extension of the deadline
for jurisdictions to implement SORNA, until July 27, 2010.
See Att’y Gen. Order No. 3081-2009 (May 26, 2009).
Unlike the state’s obligation to implement SORNA,
SORNA’s registration requirements applied immediately and
retroactively to all sex offenders regardless of when they were
convicted. See 72 Fed. Reg. 8894, 8895 (Feb. 28, 2007) (“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. 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.” (emphasis added)); id. at 8896
(“SORNA requires all sex offenders who were convicted of
sex offenses in its registration categories to register in rele-
vant jurisdictions, with no exception for sex offenders whose
convictions predate the enactment of SORNA.”). Thus, a sex
offender’s obligations to register and update his registration
under SORNA are generally independent of a jurisdiction’s
implementation of SORNA’s requirements. See United States
UNITED STATES v. BEGAY 14431
v. George, 579 F.3d 962, 965 (9th Cir. 2009) (“While states
have until July 2009 to implement the administrative compo-
nents of [SORNA], the statute became effective July 27,
2006, and registration under it became a requirement of fed-
eral law at that time.”); United States v. Brown, 586 F.3d
1342, 1348, 1349 (11th Cir. 2009) (noting “the distinction
between a jurisdiction’s duty to implement SORNA”—on
which that jurisdiction’s federal funding is conditioned—“and
a sex offender’s duty to register,” and “agree[ing] with [its]
sister circuits that a sex offender is not exempt from
SORNA’s registration requirements merely because the juris-
diction in which he is required to register has not yet imple-
mented SORNA”).
B
In proceedings before the district court, Defendants submit-
ted an affidavit prepared by Kathleen Bowman, the Public
Defender for the Navajo Nation. This declaration states that,
before the enactment of the Adam Walsh Act, the Navajo
Nation Council (“Council”) passed a resolution enacting the
Navajo Nation Sex Offenders Registration Act of 2005, which
does not comply with SORNA’s requirements. Following the
enactment of Adam Walsh Act, on July 19, 2007, the Council
passed a resolution electing to implement the requirements of
the Adam Walsh Act within the period of implementation by
local jurisdictions, pursuant to 42 U.S.C. § 16927(a)(1)(A).4
The Navajo Nation has created a task force to implement a
sex offender registry in compliance with the requirements of
4
This resolution stated:
The Navajo Nation hereby expressly reaffirms its intent to fully
implement all of the applicable requirements of the Adam Walsh
Act and wholly rejects the idea that any state may be authorized,
without proper consultation, and contrary to the Navajo Nation
government-to-government relationship with the United States
Government, to exercise this type of jurisdiction within the Nav-
ajo Nation.
14432 UNITED STATES v. BEGAY
the Adam Walsh Act. However, as of the time this appeal was
briefed, the Navajo Nation has not yet created a sex offender
registry.
C
1
On June 5, 2006, Defendant-Appellant Brandon Dineshu
Begay pleaded guilty in the District of Arizona to sexual
abuse of a minor, in violation of 18 U.S.C. § 2243(a), a Tier
II offense under SORNA. He was sentenced to twenty-four
months’ imprisonment and three years’ supervised release.
As a term of his plea and supervised release, Begay was
required to register as a sex offender with all state and tribal
sex offender agencies in any state where he resided, was
employed, carried on a vocation, or was a student, as directed
by the probation officer. He was further required to notify his
probation officer within seventy-two hours of changing his
residence and to update his sex offender registration with his
new address within the same time frame. See ARIZ. REV. STAT.
§§ 13-3821, 13-3822.
Begay initially registered with the State of Arizona as
required on December 10, 2007. On July 9, 2008, Begay
updated his registration, listing his new address as 2445 N.
Oracle Road, Tucson, Arizona. This was the address of a resi-
dential treatment center named “New Beginnings,” where
Begay was required to reside as part of his supervised release.
On July 13, 2008, Begay left New Beginnings without per-
mission. On July 31, 2008, he was arrested at his grandmoth-
er’s house in Tuba City, Arizona, which is within the confines
of the Navajo Reservation. Begay did not register his change
of address after he left New Beginnings, so his most recent
registration is the New Beginnings address.
Begay was indicted on a single count of failure to update
his registration as a convicted sex offender, in violation of 18
UNITED STATES v. BEGAY 14433
U.S.C. § 2250(a) and 42 U.S.C. §§ 16911 and 16913. He sub-
sequently filed a motion to dismiss the indictment on ten sep-
arate grounds, three of which are relevant to this appeal. The
district court heard oral argument on the motion, and denied
it in a written order on February 24, 2009.
Begay entered a conditional plea of guilty to the indict-
ment, expressly reserving the right to appeal the district
court’s denial of his motion to dismiss. The district court sen-
tenced Begay to twenty-four months’ imprisonment, followed
by five years’ supervised release. Begay timely appealed.
2
On July 21, 2006, Defendant-Appellant Ozzy Carl Watch-
man pleaded guilty in the District of Arizona to sexual abuse
of a minor, in violation of 18 U.S.C. § 2243(a). He was sen-
tenced to eighteen months’ imprisonment followed by three
years’ supervised release. As a term of his plea and super-
vised release, he was required to register as a sex offender and
update his registration pursuant to the same requirements as
Begay.
On November 28, 2006, Watchman registered with the
State of Arizona. He updated his registration with the New
Beginnings address on January 24, 2008. On June 25, 2008,
Watchman left New Beginnings without permission. He was
arrested on August 14, 2008, in Fort Defiance, Arizona,
within the Navajo Nation, where he had been living with his
mother since leaving New Beginnings. Watchman did not
register his change of address after he left New Beginnings,
so the New Beginnings address is his most recent registration.
Watchman was indicted on a single count of failure to
update his registration as a convicted sex offender, in viola-
tion of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911 and
16913. He subsequently filed a motion to dismiss the indict-
ment on the same ten grounds as Begay. The district court
14434 UNITED STATES v. BEGAY
denied this motion in a nearly identical written order issued
on the same day.
After Watchman entered a conditional plea of guilty in
which he reserved the right to appeal the district court’s deci-
sion, the district court sentenced Watchman to fifteen months’
imprisonment, followed by five years’ supervised release.
Watchman timely appealed.
II
Defendants argue that the district court erred in denying
their motions to dismiss their indictments. They make three
arguments on appeal, one regarding the proper construction of
SORNA and two regarding its constitutionality. We review
issues pertaining to statutory interpretation and constitutional
law de novo. See United States v. Norbury, 492 F.3d 1012,
1014 (9th Cir. 2007); United States v. Bynum, 327 F.3d 986,
990 (9th Cir. 2003).
A
The Defendants’ statutory argument is based on two prem-
ises. First, they argue that SORNA did not require them to
update their registration with the State of Arizona while they
were residing in the Navajo Nation. They reason that, because
the Navajo Nation had elected to become a SORNA jurisdic-
tion, the relevant “jurisdiction” with which they were required
to register while residing within the Navajo Nation was only
the tribe itself, not the state within which the tribe is located.
Second, they correctly point out that they could not update
their registration with the Navajo Nation because it had not
yet established a sex offender registry. Based on these two
premises, they conclude that “uncontrollable circumstances
prevented [them] from complying” with SORNA. 18 U.S.C.
§ 2250(b)(1).
Our reading of SORNA leads us to disagree with the
Defendants’ first premise and therefore their conclusion.
UNITED STATES v. BEGAY 14435
Because Defendants were required to update their registration
with Arizona even while living in the Navajo Nation, no “un-
controllable circumstances” prevented their compliance with
SORNA.
1
[1] SORNA provides: “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.” 42 U.S.C. § 16913(a)
(emphasis added). There are two separate obligations — an
obligation to register and an obligation to keep the registration
current. In both cases, the sex offender must register in each
jurisdiction in which he resides, works, or attends school.
However, SORNA provides some flexibility to the sex
offender who must keep his registration current. “[A]fter each
change of name, residence, employment, or student status,”
the sex offender must keep his registration current by “app-
ear[ing] in person in at least 1 jurisdiction” and “inform[ing]
that jurisdiction of all changes.” In turn, that jurisdiction will
provide the updated “information to all other jurisdictions in
which the offender is required to register.” 42 U.S.C.
§ 16913(c).
At the time of their arrest, Defendants had previously regis-
tered as sex offenders in the State of Arizona, but “resided”
in both the Navajo Nation and the State of Arizona, both of
which qualify as “jurisdictions” under SORNA. See id.
§ 16911(10)(A), (H) (defining “jurisdiction” to include “[a]
State” and “a federally recognized Indian tribe” that has
elected to become a SORNA jurisdiction pursuant to
§ 16927); id. § 16911(13) (defining “resides” as “the location
of the individual’s home or other place where the individual
habitually lives”). Thus, Defendants had an obligation under
SORNA to “keep the registration current” in Arizona. Id.
§ 16913(a). Because the Navajo Nation did not have a registry
at the time of the Defendants’ arrests, and the Defendants had
14436 UNITED STATES v. BEGAY
not registered with the Navajo Nation, the Defendants were
required to fulfill their obligation to “keep the registration
current[ ] in each jurisdiction where” they were residing, id.,
by appearing in person in Arizona and updating their registra-
tion there, see id. § 16913(c). By doing so, they would have
“appear[ed] in person in at least 1 jurisdiction involved pursu-
ant to [§ 16913(a)].” Id. And because nothing prevented the
Defendants from updating their registration with Arizona, no
“uncontrollable circumstances” prevented them from comply-
ing with SORNA. 18 U.S.C. § 2250(b)(1).
[2] We acknowledge that there is another plausible reading
of the term “each jurisdiction.” Defendants argue that this
term “means simply three possibilities: the SORNA jurisdic-
tion where one lives, the SORNA jurisdiction where one
works, and the SORNA jurisdiction where one goes to
school.” They assert that “the word ‘each’ is important
because the offender could reside in one jurisdiction, work in
a second jurisdiction, and attend school in a third jurisdiction.
In such a case, the word ‘each’ indicates that he is expected
to register in all three jurisdictions.” On the other hand, they
argue, “SORNA does not require sex offenders who live in a
tribal SORNA jurisdiction to also register in another, standa-
lone SORNA jurisdiction.” In other words, Defendants
believe that the term “each jurisdiction” means that sex
offenders are required to register in a maximum of three juris-
dictions: a jurisdiction of residence, a jurisdiction of employ-
ment, and a jurisdiction of schooling.
[3] Although this interpretation is not unreasonable, we do
not consider it to be the best reading of SORNA. Rather than
reading “each jurisdiction” as a cap on registration, we think
it makes more sense to read it as expanding the obligation to
register. Thus, SORNA should be read to mean that a sex
offender “shall register, and keep the register current, in each
jurisdiction where the offender resides, [in each jurisdiction]
where the offender is an employer, and [in each jurisdiction]
where the offender is a student.” 42 U.S.C. § 16913(a). Our
UNITED STATES v. BEGAY 14437
reading is consistent with the purposes of SORNA. SORNA
was “an effort to make the[ ] state [registration and notifica-
tion] schemes more comprehensive, uniform, and effective.”
Carr v. United States, 130 S. Ct. 2229, 2232 (2010). The
declared purpose of SORNA is to create “a comprehensive
national system for the registration of [sex] offenders.” 42
U.S.C. § 16901 (emphasis added). By “comprehensive,” Con-
gress meant a system that would track all sex offenders in all
parts of the United States and would prevent even the tempo-
rary loss of sex offenders from the registration roles, in con-
trast with the “patchwork of individual systems administered
and maintained by each State,” which often allowed sex
offenders to “slip through the cracks.” 152 Cong. Rec. H5730
(July 25, 2006) (statement of Rep. Van Hollen). A report by
the House Committee on the Judiciary emphasizes “the tran-
sient nature of sex offenders and the inability of the States to
track those offenders.” H.R. Rep. No. 109-218, pt. 1, at 30
(2005). It further states that “[t]he most significant enforce-
ment issue in the sex offender program is that over 100,000
sex offenders, or nearly one-fifth in the Nation are ‘missing,’
which “typically occurs when the sex offender moves from
one State to another.” Id. at 32. The report predicts that, under
SORNA, “[t]he combination of incentives for the sex offender
to comply . . . w[ould] reduce the overwhelming number of
non-complying or ‘lost’ sex offenders in our communities.”
Id.; see also 152 Cong. Rec. S8014 (2006) (statement of Sen.
Biden) (“[T]here are over 550,000 offenders nationwide, and
more than 20 percent of them are unaccounted for.”); 152
Cong. Rec. H5722-30 (2006) (statement of Sen. Sensenbren-
ner) (“There are over a half million sex offenders in the
United States and up to 100,000 offenders are unregistered
and their locations unknown to the public and law enforce-
ment. [SORNA] contains strict national offender registration
and data sharing requirements to ensure that law enforcement
agencies and America’s communities know where sex offend-
ers live and work.”).
[4] We have given the term “each jurisdiction” the reading
that best ensures that sex offenders do not go “missing” from
14438 UNITED STATES v. BEGAY
the registration rolls. Reading SORNA as Defendants read it
would mean that sex offenders who move to tribal lands that
have elected to implement SORNA but has not yet created a
registry would have no obligation to update their registration,
allowing them to “slip through the cracks.” Indeed, Defen-
dants read the word “each” in the statute to require registra-
tion with only, at a maximum, one jurisdiction of residence,
one jurisdiction of employment, and one jurisdiction of
schooling. Under this reading, a sex offender who is
employed in two states would be required to register in only
one state, even if the vast majority of his time was spent in
the other state. This could not have been what Congress
intended. Rather, the most reasonable reading of the word
“each” is that a sex offender must register with, and keep his
registration current with, every jurisdiction in which he
resides, works, or goes to school.
2
Defendants have four responses to our reading of the text
and legislative intent of SORNA.
a
Defendants argue that our reading conflicts with Carr. In
Carr, the Supreme Court held that 18 U.S.C. § 2250(a), which
establishes a criminal offense for any person required to regis-
ter under SORNA who “travels in interstate or foreign com-
merce” and “knowingly fails to register or update a
registration,” does not apply to sex offenders whose interstate
travel occurred prior to SORNA’s effective date. 130 S. Ct.
at 2232-33. The government justified its contrary reading of
SORNA by “invok[ing] one of SORNA’s underlying pur-
poses: to locate sex offenders who had failed to abide by their
registration obligations” and to address the problem of
“ ‘missing’ sex offenders.” Id. at 2240. The Court rejected
this argument, stressing that SORNA must be given the inter-
pretation that best “accords with the statutory text,” id. at
UNITED STATES v. BEGAY 14439
2235, rather than giving the statute a “strained reading,” id. at
2238, based simply on the notion that it better accorded with
“a general goal of SORNA,” id. at 2240.
Defendants argue that, similarly, “this Court may not strain
the statute’s language to fit the government’s notion of what
would allegedly best serve the statute’s broad purpose of
accounting for ‘missing sex offenders.’ ” We reject Defen-
dants’ argument for two main reasons.
[5] First, we believe that our interpretation of SORNA is
not a “strained reading” but rather the best reading of the stat-
ute’s text. In requiring sex offenders to “keep the registration
current[ ] in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is
a student,” 42 U.S.C. § 16913(a), SORNA clearly contem-
plates that certain sex offenders might have to register and
keep their registration current in multiple jurisdictions. And
nothing in the text of the statute limits its application to only
one jurisdiction in each of the three categories mentioned in
§ 16913(a); rather, the most logical reading of the statute is
that it applies to every jurisdiction falling within one of the
three categories.
Second, there is nothing novel about reading a statute in
light of its legislative purpose; indeed, we have stated that
“[t]he language of a statute must be interpreted in its context
to effectuate legislative intent.” Sink v. Aden Enters., Inc., 352
F.3d 1197, 1200 (9th Cir. 2003) (emphasis added). What Carr
found to be problematic in the government’s reasoning was
the government’s “confus[ion of] a general goal of SORNA
with the specific purpose of § 2250.” 130 S. Ct. at 2240
(emphasis added). The Court specifically pointed to the provi-
sions in 42 U.S.C. § 16901 et seq., including § 16913(a), as
“stand[ing] at the center of Congress’ effort to account for
missing sex offenders,” whereas § 2250 was based on differ-
ent policy choices. Id. at 2241 (“By facilitating the collection
of sex-offender information and its dissemination among
14440 UNITED STATES v. BEGAY
jurisdictions, these provisions, [including § 16913(a),] not
§ 2250, stand at the center of Congress’ effort to account for
missing sex offenders.”). Thus, this case, unlike Carr,
requires us to construe a provision central to Congress’s legis-
lative purpose in enacting SORNA, and so we must take this
purpose into account in resolving whatever ambiguity exists
in the term “each jurisdiction.”
b
Defendants also argue that interpreting SORNA to require
them to update their registration with Arizona conflicts with
Congress’s intent to give Indian tribes that elect to implement
SORNA “a stature equal to states” as “separate jurisdictions”
under SORNA, contrary to the scheme under the Wetterling
Act. They contend that our interpretation “divest[s] the Nav-
ajo Nation of its SORNA responsibilities,” and that none “of
the detailed provisions allowing for tribes to become SORNA
jurisdictions . . . would have been necessary if Congress
intended for tribes and states to have concurrent SORNA
jurisdiction over tribal territories.”
We disagree. We have not determined today that the Nav-
ajo Nation is not a separate SORNA jurisdiction. Rather, we
have concluded, based on SORNA’s text, that both the Nav-
ajo Nation and the State of Arizona are SORNA jurisdictions.
And we have determined that, until the Navajo Nation estab-
lishes a registry, and the Defendants register there, Defen-
dants and other sex offenders living within the Navajo
Nation’s confines must fulfill their obligation to keep their
registration current in “each jurisdiction” in which they reside
by updating their registration with Arizona, thus preventing
them from “slipping through the cracks” by absconding to a
tribal jurisdiction that has not yet implemented a registry.
[6] As we have discussed, once the Navajo Nation does
implement a registry, sex offenders living within its confines
will be able to fulfill their obligation to “keep the registration
UNITED STATES v. BEGAY 14441
current[ ] in each jurisdiction where [they] reside[ ],” 42
U.S.C. § 16913(a), by updating their information with the
Navajo Nation’s registry, see id. § 16913(c) (in order to
“[k]eep[ ] the registration current,” “[a] sex offender shall . . .
appear in person in at least 1 jurisdiction involved pursuant
to subsection (a) of this section” (emphasis added)). In other
words, once the Navajo Nation fully implements SORNA, it
becomes a jurisdiction equal in stature to the State of Arizona
as the monitor of sex offenders within its boundaries, pre-
cisely as Congress intended.5
c
Third, Defendants argue that our interpretation leads to
absurd and unfair results. Defendants point out that if Puerto
Rico, which is a SORNA jurisdiction, “had no sex offender
registry, a sex offender who lived, worked and went to school
in Puerto Rico . . . would have no obligation to register in any
other SORNA jurisdiction.” Defendants argue:
The fact that an island territory is physically
removed from other SORNA jurisdictions should not
mean that SORNA imposes fewer registration obli-
gations on the sex offenders who live, work, or go to
school on that island territory than it does on the sex
offenders who live, work, or go to school in any
other SORNA jurisdiction. . . . Yet, the district
court’s interpretation would impose a greater burden
on the sex offender living on the Navajo Reservation
than on the sex offender living in Puerto Rico. This
is unfair, unwarranted, and illustrates the absurdity
of the district court’s interpretation.
5
For the same reasons, we disagree with Defendants’ argument that the
district court’s decision “offends the notion of tribal sovereignty” by com-
promising “the traditional right of the Navajo Nation to police its own
members.” Requiring Defendants to update their registration with Arizona
simply supplements registration with the Navajo Nation until the tribe
actually establishes a registry.
14442 UNITED STATES v. BEGAY
“It is true that interpretations of a statute which would pro-
duce absurd results are to be avoided if alternative interpreta-
tions consistent with the legislative purpose are available.”
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982). However, we believe that the differential treatment
identified by the Defendants is far from an “absurd result.”
Again, the legislative purpose of SORNA was to track the
location of sex offenders in all jurisdictions in which they
live, work, and go to school. An interpretation of SORNA
requiring the updating of registration with the state in which
an Indian tribe is located if the Indian tribe has not yet estab-
lished a registry is most “consistent with th[at] legislative pur-
pose.” Id. The most that can be said about Defendants’
comparison to Puerto Rico is that SORNA’s failure to cover
jurisdictions that are physically removed from states and that
have not established a registry is a gap in SORNA that makes
the statute somewhat less effective than it could have been in
carrying out Congress’s intent. The fact that Puerto Rico
might, theoretically, present a gap in coverage does not render
our interpretation unfair6 or absurd.7
6
It is also worth noting that, as the district court pointed out, Defendants
“certainly understood [their] obligation to register with Arizona,” given
that they had both registered with Arizona previously and had updated
their registration when they moved to New Beginnings.
7
We admit that our reading of SORNA produces a bit of an oddity. A
sex offender living, working, or going to school on an Indian reservation
that has established a registry may fulfill his obligation to “[k]eep[ ] the
registration current” simply by appearing in person at the Indian tribe’s
registry to update his registration. 42 U.S.C. § 16913(c). However, under
our reading of the term “each jurisdiction,” a sex offender living, working,
or going to school within an Indian reservation at the time of his initial
registration must initially register in both the Indian tribe and the state
within which the Indian tribe is located if both jurisdictions have their own
registry. See id. § 16913(a) (“A sex offender shall register . . . in each
jurisdiction where the offender resides, where the offender is an employee,
and where the offender is a student.”). Because the area within an Indian
reservation is the only area that can simultaneously fall within two
SORNA jurisdictions—the Indian tribal area and the state—an Indian res-
ervation is the only place in which a person must initially register in two
jurisdictions for a single place of residence, work, or schooling. This is a
consequence of the tribes having sovereign status, yet residing entirely
within a state or states.
UNITED STATES v. BEGAY 14443
d
[7] The Defendants’ final statutory argument is that,
“[e]ven if the Court . . . finds the term [‘each jurisdiction’]
ambiguous, the rule of lenity requires that the term ‘each
jurisdiction’ be given the more lenient construction.” How-
ever, the Supreme Court has held that “[t]he simple existence
of some statutory ambiguity . . . is not sufficient to warrant
application of [the rule of lenity].” Muscarello v. United
States, 524 U.S. 125, 138 (1998). Rather, “[t]o invoke the
rule, we must conclude that there is a grievous ambiguity or
uncertainty in the statute,” to the point that, “after seizing
everything from which aid can be derived, . . . we can make
no more than a guess as to what Congress intended.” Id. at
138-39 (emphases added) (quotation marks omitted) (ellipsis
in original). In light of the most natural interpretation of the
term “each jurisdiction” and the legislative intent of the stat-
ute, we believe that SORNA does not suffer from “grievous
ambiguity.”
*****
[8] In sum, Defendants were required to comply with
SORNA by reporting their change of address to Arizona. And
because nothing prevented them from doing so, no “uncon-
trollable circumstances” prevented their compliance with
SORNA.
B
Alternatively, Defendants argue that if SORNA required
them to update their registration with Arizona while they were
residing on the Navajo Reservation, SORNA is unconstitu-
tional under the Due Process Clause of the Fifth Amendment
and the Ex Post Facto Clause. We address each of these
clauses in turn.8
8
Our discussion of these constitutional arguments also implicitly
addresses Defendants’ contention that we should construe SORNA in such
14444 UNITED STATES v. BEGAY
1
The Fifth Amendment’s Due Process Clause guarantees
that persons shall not “be deprived of life, liberty, or property
without due process of law.” U.S. CONST. amend. V. Defen-
dants argue that, “[b]ecause no mechanism yet exists for
[Defendants] to comply with SORNA, it [wa]s impossible for
[them] to be in compliance with the statute,” and that
“[c]riminalizing the failure to do something that is impossible
to do violates the Due Process Clause guarantee of fundamen-
tal fairness.”
[9] Defendants’ argument with respect to the Due Process
Clause is essentially a restatement of their argument that “un-
controllable circumstances” prevented them from complying
with SORNA. As discussed above, SORNA obligated Defen-
dants to register with Arizona and it was possible for them to
do so. Thus, there was no violation of Defendants’ due pro-
cess rights. Cf. Brown, 586 F.3d at 1349-50 (rejecting the
defendant’s due process argument “that it was impossible for
him to comply with SORNA because Alabama had not imple-
mented it,” and reasoning that “SORNA applied to [defen-
dant], and he could have registered through Alabama’s sex
offender registry”).
2
Article 1, Section 9 of the Constitution provides that “[n]o
. . . ex post facto Law shall be passed.” Defendants argue that
the punishment of Defendants “for failing to update their reg-
a way as to avoid addressing serious constitutional issues pertaining to the
Due Process Clause and the Ex Post Facto Clause. See United States v. La
Franca, 282 U.S. 568, 574 (1931) (“A statute must be construed, if fairly
possible, so as to avoid not only the conclusion that it is unconstitutional,
but also grave doubts upon that score.” (quotation marks omitted)).
Because we do not believe that SORNA raises “grave doubts” about its
constitutionality, the constitutional avoidance canon is not implicated.
UNITED STATES v. BEGAY 14445
istration when [they could not] do so because the Navajo
Nation has not implemented SORNA or any other sex
offender registration scheme” violates the Ex Post Facto
Clause.
[10] But the Ex Post Facto Clause “forbids the Congress
and the States to enact any law which imposes a punishment
for an act which was not punishable at the time it was commit-
ted; or imposes additional punishment to that then pre-
scribed.” Weaver v. Graham, 450 U.S. 24, 28 (1981)
(emphasis added) (internal quotation marks and citations
omitted); see also Miller v. Florida, 482 U.S. 423, 430 (1987)
(“[T]o fall within the ex post facto prohibition, . . . the law
must be retrospective, that is, it must apply to events occur-
ring before its enactment (second italics added) (internal quo-
tation marks omitted)). In this case, Defendants failed to
update their registration in 2008, well after SORNA was
enacted in 2006, and well after the Attorney General clarified,
in 2007, that SORNA’s obligations for sex offenders applied
immediately regardless of a state’s implementation of
SORNA’s requirements. See 72 Fed. Reg. at 8896. Under
SORNA, as discussed above, Defendants had an obligation to
update their registration with Arizona upon changing
addresses in 2008. Thus, the Defendants were punished for
conduct that was “punishable at the time it was committed,”
and there is no Ex Post Facto problem. Weaver, 450 U.S. at
28; cf. also George, 579 F.3d at 968-69 (rejecting the defen-
dant’s Ex Post Facto challenge because he “violated SORNA
after it was enacted, and after any question of its application
to him had been removed by the Attorney’s General’s rul-
ing”).
III
We hold that SORNA required Defendants to update their
registration with the State of Arizona, and that this application
of SORNA violates neither the Due Process Clause of the
Fifth Amendment nor the Ex Post Facto Clause. Thus, we
14446 UNITED STATES v. BEGAY
affirm the district court’s denial of Defendants’ motions to
dismiss their indictments.
AFFIRMED.