NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3733
UNITED STATES OF AMERICA
v.
PHILLIP CHRISTOPHER CLAYTON,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Criminal No. 08-cr-0006-001
(Honorable Kim R. Gibson)
Submitted Under Third Circuit LAR 34.1(a)
February 23, 2010
Before: SCIRICA, Chief Judge, and CHAGARES, Circuit Judges,
and RODRIGUEZ,* District Judge
(Opinion filed: March 30, 2010)
OPINION OF THE COURT
*
The Honorable Joseph H. Rodriguez, Senior United States District Judge for the
District of New Jersey, sitting by designation
RODRIGUEZ, Senior District Judge
This is an appeal from the denial of Phillip Christopher Clayton’s motion to
dismiss his indictment. The District Court had subject matter jurisdiction over the case
pursuant to 18 U.S.C. § 3231 and we have jurisdiction to hear this appeal under 28 U.S.C.
§ 1291.
Phillip Christopher Clayton was indicted on February 20, 2008 for failing to
register as a sex offender in violation of the Sex Offender Registration and Notification
Act (“SORNA”), 18 U.S.C. § 2250(a). He pleaded not guilty and asked the district court
to dismiss the indictment, arguing that SORNA was illegal and unconstitutional. The
district court denied the motion. United States v. Clayton, Criminal No. 08-06J, 2009
WL 1033664 (W.D. Pa. Apr. 16, 2009). Clayton then pled guilty to the one-count
indictment, reserving the right to appeal, and was sentenced to 36 months in prison to be
followed by 10 years of supervised release. This timely appeal followed.
By way of background, in 1992, Clayton was convicted in California of the felony
sex offense of Oral Copulation of an Unconscious Victim, and was required to register as
a sex offender for life. Thereafter, Clayton relocated to Pennsylvania, but failed to
register as a sex offender there. The indictment charged Clayton with failure to register
or update his sex offender registration between October 1, 2007 and December 31, 2007
in violation of SORNA.
Clayton argues that the District Court erred in failing to dismiss his indictment
because, as applied to him, SORNA, enacted on July 27, 2006, (1) is not applicable
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because Pennsylvania has not yet implemented the law, and (2) violates the ex post facto
clause. We exercise plenary review of a district court’s determination of the
constitutionality of a criminal statute. United States v. Walker, 473 F.3d 71, 75 (3d Cir.
2007).
This case mirrors United States v. Shenandoah, 595 F.3d 151 (3d Cir. 2010).
Invoking the recent discussion of these issues set forth in Shenandoah, we summarily
affirm. As discussed in Shenandoah, Clayton’s first argument is without merit because
SORNA “applies to sex offenders -- not to states.” Shenandoah, 595 F.3d at 157.
Clayton was a registered sex offender in California when SORNA was enacted. Thus,
“SORNA required only that he keep his registration current on and after July 27, 2006.”
Id. The allegations in the indictment pertain to Clayton’s failure to keep his registration
current, and therefore are contemplated by the subsections of SORNA which provide that
sex offenders keep their registration current in each jurisdiction in which they reside, 42
U.S.C. § 16913 (a) & (c), by informing the jurisdiction of all changes in information
required in the sex offender registry. “Inasmuch as . . . Pennsylvania had [a] sex offender
registr[y] in place after SORNA’s enactment, SORNA demanded that [Clayton] update
his registration by registering in Pennsylvania.” Id.
Similarly, the ex post facto clause argument fails because Clayton committed a
“new” crime, violating SORNA, when he failed to register or update his sex offender
registration between October 1, 2007 and December 31, 2007, after the enactment of the
statute. “SORNA is not being applied retroactively. Instead, SORNA’s focus is
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prospective. It creates a new punishment for a new offense, this new offense being
traveling in interstate commerce and failing to register as a sex offender under SORNA
after July 27, 2006.” Id. at 158 (citation omitted).
For these reasons, we find no reversible error, and affirm.
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