In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1786
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ONALD L EACH,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-CR-00070—Robert L. Miller, Jr., Judge.
A RGUED O CTOBER 18, 2010—D ECIDED M AY 3, 2011
Before P OSNER and W OOD , Circuit Judges, and A DELMAN,
District Judge.
W OOD , Circuit Judge. Donald Leach moved from
Indiana to South Carolina in late 2008 without promptly
notifying government officials in either state. This would
be unremarkable if Leach had not been convicted of a
The Hon. Lynn S. Adelman, United States District Court
for the Eastern District of Wisconsin, sitting by designation.
2 No. 10-1786
sex offense in 1990, but he had. That conviction triggered
a requirement pursuant to the Sex Offender Registration
and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), to
register with Indiana and South Carolina authorities
when he moved across state lines. Unbeknownst to
Leach, an anonymous caller reported to Indiana officials
that Leach had moved out of state shortly after his depar-
ture. In February 2009, Leach tardily passed the same
information along to the Indiana child support enforce-
ment office. At no time did he register with the
authorities in South Carolina. The following week, a
deputy United States Marshal and a local officer
arrested Leach, who was then returned to Indiana, where
he was indicted for knowingly failing to register as a
sex offender after traveling in interstate commerce in
violation of SORNA. Leach moved to dismiss his indict-
ment, arguing that SORNA violates the Ex Post Facto
Clause of the United States and Indiana Constitutions. The
district court denied Leach’s motion to dismiss, and
Leach entered a conditional guilty plea while preserving
his right to appeal that sole issue. We find no
ex post facto violation and affirm the judgment of the
district court.
I
The material facts in this case are not disputed. Donald
Leach was convicted of child molestation, a Class C felony
under Indiana law, on April 11, 1990. Just before his
release from prison in 1994, Indiana’s first sex offender
registration statute went into effect. Although the state
No. 10-1786 3
law obliged Leach to register upon his release from
prison, he failed to register at that time. In 2004, Leach
was again released from an Indiana prison on an
unrelated theft conviction. At that time, Leach signed
State Form 46656, “Notification of Requirement to
Register with Law Enforcement as Sex/Violent Of-
fender.” He registered that year with the Wabash
County Sheriff’s Department. In 2007, he signed a
similar form reiterating Indiana’s registration require-
ments and specifying that if he changed his residence
he would be required to register in his new county of
residence within three working days. On September 9,
2008, Leach registered again with the Wabash County
Sheriff’s sex offender registration office. When he moved
to South Carolina later that year, however, Leach failed
to update his registration with Indiana authorities or
register in South Carolina.
On July 27, 2006, Congress passed SORNA “to protect
the public from sex offenders” by establishing a “compre-
hensive national system for the registration of those
offenders” as part of the Adam Walsh Child Protection
and Safety Act of 2006. See 42 U.S.C. § 16901. SORNA
imposes a federal obligation on all sex offenders to
register in each jurisdiction where he resides, works,
and goes to school. § 16913(a). (We understand this to
require registration in each of these places, if they are
different; it would make no sense to think that registra-
tion is necessary only if all three happen to be in the
same jurisdiction.) The statute makes it a federal crime
for any person who is required to register and travels
in interstate commerce knowingly to fail to register or
4 No. 10-1786
update a registration. 18 U.S.C. § 2250(a). The govern-
ment charged Leach for a knowing failure to register
and update his registration after traveling in interstate
commerce from January 6, 2009, to February 20, 2009.
Leach conditionally pleaded guilty to the single-count
indictment and the district court imposed a 27-month
term of imprisonment and three years of supervised
release. This appeal followed.
II
A
As a preliminary matter, the district court correctly
concluded that venue was proper in the Northern
District of Indiana even though Leach was arrested in
South Carolina. Some may find this surprising, since the
Sixth Amendment provides that “[i]n all criminal pros-
ecutions, the accused shall enjoy the right to a speedy
and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed. . . .”
U.S. C ONST. amend. VI. For purposes of SORNA, how-
ever, a sex offender violates the statute only when he
travels across state lines and fails to register. See Carr v.
United States, 130 S. Ct. 2229, 2240 (2010) (observing that
the “act of travel” is more than a “jurisdictional predi-
cate” for § 2250, it is “the very conduct at which
Congress took aim”). Federal law says that any offense
“begun in one district and completed in another, or
committed in more than one district,” may be prosecuted
“in any district in which such offense was begun, con-
tinued, or completed.” 18 U.S.C. § 3237(a). SORNA re-
No. 10-1786 5
quired Leach to update his registration with Indiana
authorities when he left the state, see § 16913(c), and
register with South Carolina authorities when he estab-
lished a residence there, see § 16913(a). Venue was
proper in Indiana, as it would have been in South
Carolina if the government had opted to prosecute
there. See United States v. Howell, 552 F.3d 709, 718 (8th
Cir. 2009).
B
Leach spends considerable effort arguing that SORNA
violates the Ex Post Facto Clause of the Indiana Con-
stitution. In support, he relies on the Indiana Supreme
Court’s recent opinion invalidating portions of the
Indiana sex offender registration statute on state con-
stitutional grounds. See Wallace v. State, 905 N.E.2d 371
(Ind. 2009). But the question before us is not whether
Indiana has adopted a compliant registration system (an
issue relating only to its entitlement to certain federal
funds, see Carr, 130 S. Ct. at 2232), nor is it whether
SORNA—a federal statute—“complies” with the law of
any particular state. The Supremacy Clause establishes
that state constitutional provisions cannot override
federal statutes. See U.S. C ONST. art. VI, cl. 2; see also
United States v. Baer, 235 F.3d 561, 562 (10th Cir. 2000).
And even if Indiana’s system were flawed (a point on
which we express no opinion), Leach was also required
to register in South Carolina and did not. We are thus
left only with Leach’s argument that SORNA violates
the Ex Post Facto Clause of the United States Constitution.
We review a challenge to the constitutional validity of
6 No. 10-1786
a federal statute de novo. United States v. Sidwell, 440
F.3d 865, 870 (7th Cir. 2006).
The Ex Post Facto Clause, U.S. C ONST. art. I, § 9, cl. 3,
prohibits retroactive punishment. The Supreme Court
has held that “the constitutional prohibition on ex post
facto laws applies only to penal statutes which disad-
vantage the offender affected by them.” Collins v.
Youngblood, 497 U.S. 37, 41 (1990); see also O’Grady v.
Village of Libertyville, 304 F.3d 719, 723 (7th Cir. 2002). The
Court has emphasized the restriction of the Clause to
penal statutes, see Kansas v. Hendricks, 521 U.S. 346, 370
(1997), and thus a civil regulatory regime “will implicate
ex post facto concerns only if it can be fairly characterized
as punishment.” See Bae v. Shalala, 44 F.3d 489, 492 (7th
Cir. 1995). Logically there are only two conceivable ways
in which one might argue that an ex post facto violation
arises under SORNA: either Leach could contend that
the criminal penalties under 18 U.S.C. § 2250(a) are retro-
active, or he could assert that the registration require-
ments under 42 U.S.C. § 16913 constitute punishment.
Leach has not clearly distinguished between the two
approaches, and so we will consider each possibility in
turn.
Section 2250(a) imposes up to ten years’ imprisonment
for failure to comply with SORNA’s registration require-
ments. This is certainly a penal statute, and so the only
question is whether it is retrospective. A sex offender
violates the statute when, at any time after SORNA was
enacted, he travels in interstate commerce and then fails
to register. See Carr, 130 S. Ct. at 2232-33. Because the law
No. 10-1786 7
targets only the conduct undertaken by convicted sex
offenders after its enactment, it does not violate the
Ex Post Facto Clause. See Weaver v. Graham, 450 U.S. 24, 29
(1981) (observing that a law “must apply to events
before its enactment” to be ex post facto).
In fact, as we came to understand at oral argument,
Leach is not actually arguing that § 2250(a) retrospec-
tively targets conduct that was lawful before the
statute was enacted. The crux of his point seems instead
to be that obliging him to comply with the registration
requirements imposed by 42 U.S.C. § 16913 effectively
increases the punishment for his 1990 conviction. We
recognize that SORNA imposes significant burdens on
sex offenders who, like Leach, may have committed
their crimes and completed their prison terms long
before the statute went into effect. Leach must register
in every jurisdiction where he lives, works, or goes to
school; he must notify government officials within
three business days of changing his residence; he must
furnish the government with fingerprints, a photograph,
a physical description of himself, vehicle identification
information, and any other materials required by the
Attorney General. 42 U.S.C. § 16913-14. All of these re-
quirements are triggered without respect to the date of
the convictions: federal guidelines say that an offender
who was convicted before SORNA was enacted must
comply with them. 28 C.F.R. § 72.3. But that does not
make them retrospective: SORNA merely creates new,
prospective legal obligations based on the person’s prior
history.
8 No. 10-1786
To violate the Ex Post Facto Clause, moreover, a law
must be both retrospective and penal. But whether a
comprehensive registration regime targeting only sex
offenders is penal, as Leach concedes, is not an open
question. In Smith v. Doe, 538 U.S. 84 (2003), the
Supreme Court held that an Alaska sex offender registra-
tion and notification statute posed no ex post facto
violation because it was a civil, rather than penal, statute.
Citing Smith, we observed in Dixon v. United States, a
case that did not squarely present the issue, that a de-
fendant could not challenge SORNA’s registration re-
quirements on ex post facto grounds because the statute
is, in fact, regulatory. 551 F.3d 578 (7th Cir. 2008), rev’d on
other grounds sub nom. Carr v. United States, 130 S. Ct.
2229 (2010). Leach has not identified any aspects of
SORNA’s registration provisions that distinguish this
case from Smith. This is unsurprising, since we too are
unable to find any meaningful distinctions. Therefore,
we join our sister circuits in concluding that SORNA is
not an ex post facto law. See United States v. DiTomasso,
621 F.3d 17, 25 (1st Cir. 2010); United States v. Guzman, 591
F.3d 83, 94 (2d Cir. 2010); United States v. Shenandoah,
595 F.3d 151, 158-59 (3d Cir. 2010); United States v. Gould,
568 F.3d 459, 466 (4th Cir. 2009); United States v. Young, 585
F.3d 199, 203-06 (5th Cir. 2009); United States v. May,
535 F.3d 912, 919-20 (8th Cir. 2008); United States v. George,
625 F.3d 1124, 1131 (9th Cir. 2010); United States v.
Hinckley, 550 F.3d 926, 936 (10th Cir. 2008); United States
v. Ambert, 561 F.3d 1202, 1207 (11th Cir. 2009).
The judgment of the district court is A FFIRMED.
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