FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30330
Plaintiff-Appellee,
D.C. No.
v. 4:09-cr-00064-
JUVENILE MALE, SEH-1
Defendant-Appellant.
District of Montana
UNITED STATES OF AMERICA, No. 09-30273
Plaintiff-Appellee,
D.C. No.
v. 1:09-cr-00034-
JUVENILE MALE, RFC-1
Defendant-Appellant.
District of Montana
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
UNITED STATES OF AMERICA, No. 09-30365
Plaintiff-Appellee, D.C. No.
v.
4:09-cr-00071-
SEH-1
JUVENILE MALE,
Defendant-Appellant. District of Montana
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
689
690 UNITED STATES v. JUVENILE MALE
Argued and Submitted
September 21, 2011—San Francisco, California
Filed January 25, 2012
Before: Kim McLane Wardlaw, Ronald M. Gould, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wardlaw
UNITED STATES v. JUVENILE MALE 693
COUNSEL
Anthony R. Gallagher, Federal Defender, Mark Werner, Dep-
uty Federal Defender, Michael Donahoe and Robert Henry
Branom, Jr., Assistant Federal Public Defenders, The Federal
Defenders of Montana, for defendants-appellants Juvenile
Males.
Michael W. Cotter, United States Attorney, Leif M. Johnson
and Marcia Kay Hurd, Assistant United States Attorneys, for
plaintiff-appellee United States of America.
OPINION
WARDLAW, Circuit Judge:
Three juvenile defendants, each of whom is a member of
an Indian Tribe and who pleaded true to a charge of aggra-
vated sexual abuse with children, appeal their conditions of
probation or supervision requiring registration under the Sex
Offender Registration and Notification Act (SORNA), 42
U.S.C. § 16901 et seq. Defendants argue that SORNA’s regis-
tration requirement contravenes the confidentiality provisions
of the Federal Juvenile Delinquency Act (FJDA), 18 U.S.C.
§ 5031 et seq., and also challenge its constitutionality. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742. Because we conclude that Congress, in enacting
SORNA, intentionally carved out a class of juveniles from the
FJDA’s confidentiality provisions, and that SORNA’s regis-
694 UNITED STATES v. JUVENILE MALE
tration requirement is constitutionally sound, we affirm the
district courts’ imposition of the sex offender registration con-
ditions.
I. Background
These consolidated appeals — United States v. Juvenile
Male (I.M.T.D.), United States v. Juvenile Male (L.S.), and
United States v. Juvenile Male (M.M.R.) — involve juvenile
proceedings against three Native Americans who pleaded true
to committing aggravated sexual abuse with children. As a
condition of probation or supervision, each was required to
register as a sex offender pursuant to SORNA.
A. Juvenile Defendants
1. I.M.T.D.
I.M.T.D., an enrolled member of the Fort Peck Tribes, was
charged with committing an act of juvenile delinquency pur-
suant to 18 U.S.C. § 5031 et seq. for offenses committed in
July 2008. I.M.T.D. was born on June 21, 1991 and thus was
seventeen years old at the time of the offense and is twenty
years old at present. If I.M.T.D. had been an adult at the time
of the offense, the charge against him would have constituted
aggravated sexual abuse with children in violation of 18
U.S.C. §§ 1153(a) and 2241(c).
On August 5, 2009, I.M.T.D. pleaded true to the informa-
tion without entering into a plea agreement. On August 25,
2009, the district court entered a disposition sentencing
I.M.T.D. to a three-year term of probation, subject to several
conditions. As special conditions, the district court ordered
I.M.T.D. to “comply with the requirements of the Sex
Offender Registration and Notification Act;” “comply with
Sexual Offender Registration requirements for convicted
offenders in any state in which [I.M.T.D.] resides;” and “reg-
ister in person as a sex offender with local/tribal/county law
UNITED STATES v. JUVENILE MALE 695
enforcement in the jurisdiction in which [I.M.T.D.] resides, is
employed, and is a student.”
2. L.L.S.
L.L.S., an enrolled member of the Northern Cheyenne
Tribe, was charged with committing an act of juvenile delin-
quency pursuant to 18 U.S.C. § 5031 et seq. for offenses com-
mitted in approximately January or February 2005 and
September 2007. L.L.S. was born on January 19, 1991 and
thus was between thirteen and sixteen years old at the time of
the offenses and is twenty years old at present. Like I.M.T.D.,
if L.L.S. had been an adult at the time of the offenses, the
charge against him would have constituted aggravated sexual
abuse with children in violation of 18 U.S.C. §§ 1153(a) and
2241(c).
On April 30, 2009, L.L.S. pleaded true to the information
pursuant to a plea agreement. The plea agreement states that
“by pleading true pursuant to this agreement [L.L.S.] is waiv-
ing all the rights set forth in . . . paragraph [nine],” however,
paragraph nine does not mention sex offender registration or
any condition of supervision. Separately, the plea agreement
states that L.L.S. “has been advised and understands, that
under the Sex Offender Registration and Notification Act, a
federal law, the defendant must register and keep the registra-
tion current.”
At the June 19, 2009 sentencing hearing, L.L.S.’s counsel
noted that the question of “whether or not a juvenile should
be required to register underneath . . . SORNA” was unre-
solved and pending before the Ninth Circuit. The district
judge stated that “the issue that’s before [the Ninth Circuit] is
whether you can require a juvenile to register under SORNA
at all . . . . And that issue, as far as I’m concerned, is pre-
served by you.”
On June 22, 2009, the district court sentenced L.L.S. to
official detention for three years, recommending that L.L.S.
696 UNITED STATES v. JUVENILE MALE
be placed in a therapeutic environment for youthful offenders,
and ordered two years of juvenile delinquent supervision fol-
lowing his release from detention, subject to a number of spe-
cial conditions. As special conditions, the district court
ordered L.L.S. to “comply with the requirements of the Sex
Offender Registration and Notification Act” and “register in
person as a sex offender with local/tribal/county law enforce-
ment in the jurisdiction in which [L.L.S.] resides, is
employed, and is a student.”
3. M.M.R.
M.M.R., a member of an Indian Tribe, was charged with
committing acts of juvenile delinquency pursuant to 18
U.S.C. § 5031 et seq. for offenses committed on November
13, 2008 on the Rocky Boy’s Indian Reservation. M.M.R.
was born on September 17, 1994 and thus was fourteen years
old at the time of the offense and is seventeen years old at
present. As with I.M.T.D. and L.L.S., if M.M.R. had been an
adult at the time of the offenses, the charge against him would
have constituted aggravated sexual abuse with children in vio-
lation of 18 U.S.C. §§ 1153(a) and 2241(c).
On August 27, 2009, M.M.R. pleaded true to the informa-
tion without entering into a plea agreement. At the September
18, 2009 sentencing hearing, M.M.R.’s counsel objected to
the imposition of SORNA’s registration requirements on
M.M.R. The district court agreed to withhold entry of a final
order pending its review of supplemental briefing on the
SORNA issue. Both the government and M.M.R. filed supple-
mentary memoranda in which M.M.R. argued “that he should
not have to register under SORNA’s sex offender registration
requirements because M.M.R. is a juvenile and his registra-
tion would be anathema to the fundamental purpose of the
FJDA.”
On September 28, 2009, the district court entered a disposi-
tion sentencing M.M.R. to two years of official detention, rec-
UNITED STATES v. JUVENILE MALE 697
ommending that M.M.R. be placed in a therapeutic
environment for youthful offenders. The district court ordered
M.M.R. to enter juvenile delinquent supervision following his
release from detention until September 17, 2012, his eigh-
teenth birthday, subject to a number of special conditions. As
special conditions, the district court ordered M.M.R. to “com-
ply with Sexual Offender Registration requirements for con-
victed offenders in any state in which [M.M.R.] resides” and
“register in person as a sex offender with local/tribal/county
law enforcement in the jurisdiction in which [M.M.R.]
resides, is employed, and is a student.”
B. The Federal Juvenile Delinquency Act (“FJDA”)
The FJDA, 18 U.S.C. § 5031 et seq., “governs the detention
and disposition of juveniles charged with delinquency.”
United States v. Three Juveniles, 61 F.3d 86, 87 (1st Cir.
1995). First enacted in 1938, the FJDA was intended “ ‘to
provide for the care and treatment of juvenile delinquents,’ ”
id. at 88 (quoting H.R. Rep. No. 75-2617, at 1 (1938)), in rec-
ognition of significant differences between juvenile delin-
quents and adult offenders. As Congress later noted in a
committee report on proposed amendments to the FJDA,
“[o]ur objective must be . . . to minimize the youngster’s pen-
etration into all negative labeling, institutional processes . . . .
[a]t each critical step, we should exhaust the less rejecting, the
less stigmatizing recourses before taking the next expulsive
step.” S. Rep. No. 93-1011, at 24 (1974) (internal quotation
marks omitted).
We have concluded that “ ‘the purpose of the FJDA is to
enhance the juvenile system by removing juveniles from the
ordinary criminal justice system and by providing a separate
system of “treatment” for them.’ ” United States v. Juvenile,
347 F.3d 778, 785 (9th Cir. 2003) (quoting United States v.
Frasquillo-Zomosa, 626 F.2d 99, 101 (9th Cir. 1980)). These
safeguards are necessary “in order to avoid the stigma of a
prior criminal conviction and to encourage treatment and
698 UNITED STATES v. JUVENILE MALE
rehabilitation.” United States v. Doe, 94 F.3d 532, 536 (9th
Cir. 1996) (internal quotation marks omitted). Thus a “ ‘suc-
cessful prosecution under the Act results in a civil adjudica-
tion of status, not a criminal conviction.’ ” Juvenile, 347 F.3d
at 785 (quoting United States v. Doe, 53 F.3d 1081, 1083 (9th
Cir. 1995)). “[S]o long as a juvenile remains within the aus-
pices of the FJDA for sentencing, he or she is presumptively
capable of rehabilitation, and any sentence imposed by a dis-
trict court must accord with this presumption.” Id.
The FJDA includes a number of provisions to ensure that
information about juvenile delinquency proceedings remains
safeguarded. 18 U.S.C. § 5032 provides that “any proceedings
against” an alleged juvenile delinquent “may be convened at
any time and place within the district, in chambers or other-
wise.” 18 U.S.C. § 5038(a) further provides that “[t]hroughout
and upon the completion of the juvenile delinquency proceed-
ing, the records shall be safeguarded from disclosure to unau-
thorized persons.” 18 U.S.C. § 5038(a). “[I]nformation about
the juvenile record may not be released when the request for
information is related to an application for employment,
license, bonding, or any civil right or privilege,” except for in
limited circumstances relating to court proceedings, treatment,
law enforcement investigation, or national security. Id. More-
over, the statute specifies that the identity and image of the
juvenile may not be disclosed even where proceedings are
opened or documents are released: “neither the name nor pic-
ture of any juvenile shall be made public in connection with
a juvenile delinquency proceeding.” 18 U.S.C. § 5038(e).
C. The Sex Offender Registration and Notification Act
(“SORNA”)
On July 27, 2006, Congress enacted the Adam Walsh Child
Protection and Safety Act, 42 U.S.C. § 16901 et seq., which
includes the Sex Offender Registration and Notification Act
(“SORNA”). Congress enacted SORNA “[i]n order to protect
the public from sex offenders and offenders against children,
UNITED STATES v. JUVENILE MALE 699
and in response to the vicious attacks by violent predators.”
42 U.S.C. § 16901. SORNA thus “establishes a comprehen-
sive national system for the registration of those offenders.”
Id.
SORNA defines “sex offender” as “an individual who was
convicted of a sex offense.” 42 U.S.C. § 16911(1). The statute
also specifies that:
The term “convicted” or a variant thereof, used with
respect to a sex offense, includes adjudicated delin-
quent as a juvenile for that offense, but only if the
offender is 14 years of age or older at the time of the
offense and the offense adjudicated was comparable
to or more severe than aggravated sexual abuse (as
described in section 2241 of Title 18), or was an
attempt or conspiracy to commit such an offense.
42 U.S.C. § 16911(8) (emphasis added). Under 18 U.S.C.
§ 2241(c), any person who “knowingly engages in a sexual
act with another person who has not attained the age of 12
years” may be convicted of aggravated sexual abuse. Id. Any
individual convicted of violating 18 U.S.C. § 2241 is classi-
fied as a “Tier III sex offender” under SORNA. 42 U.S.C.
§ 16911(4).1
Under SORNA’s comprehensive national registration sys-
tem, sex offenders must “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 stu-
dent.” 42 U.S.C. § 16913(a). The offender must “appear in
person, allow the jurisdiction to take a current photograph,
1
All three defendants were over the age of 14 when the alleged offenses
occurred, and each pleaded true to the information for committing an act
of juvenile delinquency for what would have been a violation of 18 U.S.C.
§ 2241. Under the specific terms of SORNA, they thus qualify as “Tier
III” sex offenders.
700 UNITED STATES v. JUVENILE MALE
and verify the information in each registry.” 42 U.S.C.
§ 16916. Each jurisdiction must make public the contents of
its sex offender registry, including each registrant’s name,
address, photograph, criminal history, and status of parole,
probation, or supervised release. 42 U.S.C. §§ 16914(b),
16918(a). Tier III sex offenders must register with the appli-
cable jurisdiction every 3 months. Id. The registration period
for a Tier III offender is for life, 42 U.S.C. § 16915(a)(3),
with the possibility of a reduced period of 25 years if the
offender maintains a clean record, 42 U.S.C. § 16915(b)(2)-
(3).
II. Mootness
For a case or controversy to be justiciable under Article III,
it must remain “extant at all stages of review, not merely at
the time the complaint is filed.” Arizonans for Official
English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation
marks omitted). “[T]hroughout the litigation,” the party seek-
ing relief “ ‘must have suffered, or be threatened with, an
actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.’ ” Spencer v.
Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990)).2
In United States v. Juvenile Male (Juvenile Male II), 131 S.
Ct. 2860 (2011), vacating 590 F.3d 924 (9th Cir. 2010), the
2
The Supreme Court has recognized “numerous exceptions to moot-
ness.” Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1141 (9th Cir.
2005) (en banc) (W. Fletcher, J., dissenting). These exceptions include
cases involving a party that voluntarily ceases the offending conduct, but
remains “free to return to his old ways,” United States v. W.T. Grant Co.,
345 U.S. 629, 632 (1953), wrongs that are “capable of repetition, yet evad-
ing review,” Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (internal quota-
tion marks omitted), and class action suits where the named plaintiff’s
case is moot, Sosna v. Iowa, 419 U.S. 393, 399-401 (1975). Because we
conclude that the consolidated appeals before us are not moot, we need not
analyze any of these exceptions.
UNITED STATES v. JUVENILE MALE 701
Supreme Court found that an appeal of a similar sex offender
registration condition was moot because the order of juvenile
supervision imposing the condition had expired prior to the
Ninth Circuit’s decision.3 Id. at 2864. The defendant in Juve-
nile Male II pleaded true to charges that he engaged in sexual
acts that, if he had been an adult, would have constituted
aggravated sexual assault. Id. at 2862 (citing 18 U.S.C.
§§ 1153(a), 2241(c)). The defendant was sentenced to official
detention followed by a period of juvenile supervision, with
the condition that he register as a sex offender, until his
twenty-first birthday. Id. Defendant challenged the registra-
tion condition, but while his appeal was pending before us, he
turned twenty-one and the supervision order requiring him to
register as a sex offender expired. Id. at 2863. The Supreme
Court found that the expiration of the order rendered the
appeal moot, because the defendant was “no longer subject to
the sex-offender-registration condition that he sought to chal-
lenge on appeal.” Id. at 2864.
In criminal cases, a defendant wishing to continue an
appeal after the expiration of his or her sentence must suffer
some “continuing injury” or “collateral consequence” suffi-
cient to satisfy Article III. See Spencer, 523 U.S. at 7-8.
Accordingly, to determine whether there was an ongoing
“collateral consequence,” the Court, in United States v. Juve-
nile Male (Juvenile Male I), 130 S. Ct. 2518 (2010), had certi-
fied a question to the Montana Supreme Court, inquiring
whether
[R]espondent’s duty to remain registered as a sex
offender under Montana law [was] contingent upon
3
The Ninth Circuit’s vacated opinion in United States v. Juvenile Male,
590 F.3d 924, addressed the retroactive application of SORNA’s registra-
tion requirement to persons adjudicated delinquent before SORNA was
enacted by virtue of the Attorney General’s promulgation of 28 C.F.R.
§ 72.3 pursuant to Congress’s delegation of authority in 42 U.S.C.
§ 16913(d).
702 UNITED STATES v. JUVENILE MALE
the validity of the conditions of his now-expired fed-
eral juvenile-supervision order that required him to
register as a sex offender, or is the duty an indepen-
dent requirement of Montana law that is unaffected
by the validity or invalidity of the federal juvenile-
supervision conditions?
Id. at 2519-20 (citations omitted). The Montana Supreme
Court responded that the “state law duty to remain registered
as a sex offender is not contingent upon the validity of the
conditions of his federal supervision order, but is an indepen-
dent requirement of Montana law.” Juvenile Male II, 131 S.
Ct. at 2863 (internal quotation marks omitted). The U.S.
Supreme Court then concluded, on the ground that any deci-
sion an appellate court could make would have no effect, not
even on the state registration requirement, that the “Ninth Cir-
cuit lacked the authority under Article III to decide this case
on the merits.” Id. at 2865.
[1] The government argues that the three consolidated
cases under review here are similarly moot because the defen-
dants “are required to register independently under Montana
state law regardless of any decision by this Court addressing
their SORNA obligations under federal law.” We disagree.
First, each of the juvenile defendants in this case is currently
subject to an unexpired condition of his release or supervision
requiring sex offender registration under SORNA. Indeed, the
conditions requiring registration will remain in effect until
August 23, 2012 for I.M.T.D., September 17, 2012 for
M.M.R., and March 2014 for L.L.S. Second, in addition to
those conditions, all three defendants are subject to SORNA’s
independent registration requirement for a period of at least
twenty-five years, if not for the duration of their life, because
of their status as Tier III sex offenders. 42 U.S.C.
§ 16915(a)(3), (b)(2)-(3). This federal requirement that the
defendants register as sex offenders is independent from any
requirement under state law. Because this federal requirement
remains in effect, whether defendants are properly subject to
UNITED STATES v. JUVENILE MALE 703
SORNA’s registration requirement remains a live controversy
for us to adjudicate, and these consolidated appeals thus are
not moot.
[2] In Juvenile Male II, the Supreme Court considered and
rejected the argument that the appeal in that case “ ‘cannot be
considered moot in any practical sense’ because . . . respon-
dent may have ‘an independent duty to register as a sex
offender’ under SORNA itself.” 131 S. Ct. at 2864-65. The
Supreme Court held that because the defendant had only chal-
lenged the validity of the special conditions of supervision,
any broader question related to SORNA’s requirement was
not at issue. Id. at 2865. The Court did acknowledge that the
independent, continuing obligation under SORNA, in another
case, “might provide grounds for a pre-enforcement challenge
to SORNA’s registration requirements.” Id. The instant con-
solidated appeal is precisely such a case, as each defendant
objects both specifically to the special condition requiring
registration and generally to the constitutionality of SORNA
as applied to juveniles, and therefore is not moot.
III. Conflict Between FJDA and SORNA
We next consider whether the SORNA registration require-
ment imposed by the district court contravenes the confidenti-
ality provisions of the FJDA. We review a district court’s
construction or interpretation of a statute de novo. See Bee-
man v. TDI Managed Care Servs. 449 F.3d 1035, 1038 (9th
Cir. 2006); United States v. Cabaccang, 332 F.3d 622, 624-25
(9th Cir. 2003) (en banc).
The government argues that SORNA and the FJDA do not
conflict because they each operate on different classes of indi-
viduals and agencies. Specifically, it contends that the FJDA’s
confidentiality provisions restrict disclosure of the records of
juvenile proceedings by employees of the court or any gov-
ernment agency, 18 U.S.C. § 5038(c), while SORNA’s report-
ing requirements operate directly on the juvenile himself. We
704 UNITED STATES v. JUVENILE MALE
disagree with that characterization, and find that several pro-
visions of the two statutes conflict because SORNA’s regis-
tration provision makes public information that would
otherwise remain confidential under the FJDA.
[3] The FJDA provides that “[u]nless a juvenile who is
taken into custody is prosecuted as an adult neither the name
nor picture of any juvenile shall be made public in connection
with a juvenile delinquency proceeding.” 18 U.S.C. § 5038(e)
(emphasis added). The FJDA further provides that “informa-
tion about the juvenile record may not be released when the
request for information is related to an application for
employment, license, bonding, or any civil right or privilege.”
18 U.S.C. § 5038(a). SORNA, however, requires that a sex
offender registry include the name, address, physical descrip-
tion, criminal history and status of parole, probation, or super-
vised release, current photograph, and other identifying
information. 42 U.S.C. § 16914. SORNA further requires that
“each jurisdiction shall make available on the Internet, in a
manner that is readily accessible to all jurisdictions and to the
public, all information about each sex offender in the regis-
try.” 42 U.S.C. § 16918(a). Because it is clear that the govern-
ment’s public release of juvenile records authorized by
SORNA would have been prohibited under the FJDA prior to
the passage of SORNA, we find that the two statutes conflict.
Where two statutes conflict, the later-enacted, more spe-
cific provision generally governs. See Acosta v. Gonzales, 439
F.3d 550, 555 (9th Cir. 2006) (“[C]onflicting statutes should
be interpreted so as to give effect to each but to allow a later
enacted, more specific statute to amend an earlier, more gen-
eral statute.” (internal quotation marks omitted)), abrogated
on other grounds by Garfias-Rodriguez v. Holder, 649 F.3d
942, 948 (9th Cir. 2011). SORNA unambiguously directs
juveniles over the age of 14 convicted of certain aggravated
sex crimes to register, and thus carves out a narrow category
of juvenile delinquents who must disclose their juvenile
crimes by registering as a sex offender. For all other juvenile
UNITED STATES v. JUVENILE MALE 705
delinquents, the FJDA’s confidentiality provisions remain in
force.
[4] The relationship between SORNA and the FJDA is fur-
ther clarified by Congress’s clearly stated intent to limit confi-
dentiality in the case of certain juvenile sex offenders. See
H.R. Rep. 109-218, pt. 1, at 25 (2005) (“While the Committee
recognizes that States typically protect the identity of a juve-
nile who commits criminal acts, in the case of sexual offenses,
the balance needs to change; no longer should the rights of the
juvenile offender outweigh the rights of the community and
victims to be free from additional sexual crimes . . . . H.R.
3132 strikes the balance in favor of protecting victims, rather
than protecting the identity of juvenile sex offenders.”); 152
Cong. Rec. S8012, S8023 (daily ed. July 20, 2006) (statement
of Sen. Kennedy) (“This compromise allows some offenders
over 14 to be included on registries, but only if they have
been convicted of very serious offenses.”). Thus, Congress
was aware that it was limiting protections under the FJDA by
applying SORNA to certain juvenile delinquents, and
intended to do so.
[5] We therefore hold that the district court properly
applied SORNA’s registration requirements to the juvenile
defendants in these cases. Although the defendants may dis-
agree with the policy implications of SORNA, particularly
with regard to confidentiality, Congress appears to have con-
sidered those concerns in enacting SORNA. Our review is
limited to interpreting the statutes, and both the statutory text
and legislative history of SORNA suggest its reporting and
registration requirements were intended to reach a limited
class of juveniles adjudicated delinquent in cases of aggra-
vated sexual abuse, including appellants.
IV. Constitutional Challenges
Defendants further argue that subjecting juvenile sex
offenders to SORNA’s registration is unconstitutional. In par-
706 UNITED STATES v. JUVENILE MALE
ticular, they allege that doing so violates (i) the equal protec-
tion clause; (ii) the prohibition against cruel and unusual
punishment; (iii) the right against self-incrimination; (iv) sub-
stantive due process; (v) procedural due process; and (vi) the
right to effective counsel. We review the constitutionality of
a statute de novo. Eunique v. Powell, 302 F.3d 971, 973 (9th
Cir. 2002) (citing Gray v. First Winthrop Corp., 989 F.2d
1564, 1567 (9th Cir. 1993)).
A. Equal Protection
Defendants argue that SORNA’s registration requirements
violate the juveniles’ right to equal protection by irrationally
distinguishing between juvenile sex offenders over fourteen,
who are categorically required to register as sex offenders,
and other juvenile offenders, who are entitled to an adversary
hearing on whether transfer to adult court is appropriate.
[6] The Equal Protection Clause of the Fourteenth Amend-
ment applies strict scrutiny if the aggrieved party is a member
of a protected or suspect class, or otherwise suffers the
unequal burdening of a fundamental right. City of Cleburne v.
Cleburne Living Center, 473 U.S. 432, 439-40 (1985). “Gov-
ernment actions that do not . . . involve suspect classifications
will be upheld if [they] are rationally related to a legitimate
state interest.” Fields v. Palmdale Sch. Dist., 427 F.3d 1197,
1208 (9th Cir. 2005).
[7] However, defendants — juvenile sex offenders over the
age of fourteen — do not fall within a protected class. We
have previously rejected the argument that sex offenders are
a suspect or protected class. United States v. LeMay, 260 F.3d
1018, 1030-31 (9th Cir. 2001). Further, “age is not a suspect
classification under the Equal Protection Clause.” Gregory v.
Ashcroft, 501 U.S. 452, 470 (1991) (citing City of Cleburne,
473 U.S. at 441 (“We have declined, however, to extend
heightened review to differential treatment based on age”)).
UNITED STATES v. JUVENILE MALE 707
This conclusion is consistent with that of the Sixth Circuit,
which heard an equal protection challenge to a similar juve-
nile registration requirement in Doe v. Michigan Department
of State Police, 490 F.3d 491 (6th Cir. 2007). There, the
defendants challenged a Michigan sex offender registration
program, in part, because it “requir[ed] youthful trainees
charged with sex offenses to register while not requiring
youthful trainees charged with other offenses to do so.” Id. at
502. The Sixth Circuit, noting that the set of suspect classifi-
cations recognized by the Supreme Court was limited, held
that “the classification raised by the plaintiffs does not impli-
cate a suspect class and that rational-basis review is accord-
ingly appropriate.” Id. at 503.
[8] Because defendants in this case have failed to establish
membership in a recognized protected class, SORNA is sub-
ject to rational basis review for the purpose of equal protec-
tion analysis. SORNA’s language and legislative history
clearly indicate the legislative purpose for which it was
enacted. See 42 U.S.C. § 16901 (in enacting SORNA, “Con-
gress . . . establishes a comprehensive national system” that
is designed to “protect the public from sex offenders and
offenders against children”); Applicability of the Sex
Offender Registration and Notification Act, 72 Fed. Reg.
8894, 8895 (Feb. 28, 2007) (noting that SORNA was “de-
signed . . . for the protection of the public”). We have held
that protecting our communities is a legitimate legislative pur-
pose. See Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir. 2004)
(holding, with regard to Alaska’s sex offender registration
laws, that “the statute’s provisions serve a ‘legitimate non-
punitive purpose of public safety, which is advanced by alert-
ing the public to the risk of sex offenders in their
community’ ”) (internal quotation marks omitted). The
Supreme Court has also held that “there is no doubt that pre-
venting danger to the community is a legitimate regulatory
goal.” United States v. Salerno, 481 U.S. 739, 747 (1987).
Thus, SORNA’s requirements satisfy rational basis review
and do not violate the Equal Protection Clause.
708 UNITED STATES v. JUVENILE MALE
B. Cruel and Unusual Punishment
Defendants argue that by sanctioning a class of juvenile
offenders with registration requirements, SORNA violates the
Eighth Amendment’s prohibition on cruel and unusual pun-
ishment.
[9] The Eighth Amendment mandates that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.” The amendment
prohibits “not only barbaric punishments, but also sentences
that are disproportionate to the crime committed.” Solem v.
Helm, 463 U.S. 277, 284, 303 (1983) (holding that defen-
dant’s Eighth Amendment right was violated where defendant
received the “penultimate sentence” for a minor, check writ-
ing offense).
The bar for cruel and unusual punishment is high. See, e.g.,
United States v. Nagel, 559 F.3d 756, 763 (7th Cir. 2009) (cit-
ing Ewing v. California, 538 U.S. 11, 28-30 (2003) (affirming
sentence of 25 years to life imposed for felony grand theft of
three golf clubs under three strikes law); Harmelin v. Michi-
gan, 501 U.S. 957, 961, 966 (1991) (affirming life in prison
without the possibility of parole for first-time offender pos-
sessing 672 grams of cocaine); Hutto v. Davis, 454 U.S. 370,
370-71 (1982) (no constitutional error in two consecutive
terms of 20 years in prison for possession with intent to dis-
tribute and distribution of 9 ounces of marijuana)).
[10] Although defendants understandably note that
SORNA may have the effect of exposing juvenile defendants
and their families to potential shame and humiliation for acts
committed while still an adolescent, the statute does not meet
the high standard of cruel and unusual punishment. The
requirement that juveniles register in a sex offender database
for at least 25 years because they committed the equivalent of
aggravated sexual abuse is not a disproportionate punishment.
These juveniles do not face any risk of incarceration or threat
UNITED STATES v. JUVENILE MALE 709
of physical harm. In fact, at least two other circuits have held
that SORNA’s registration requirement is not even a punitive
measure, let alone cruel and unusual punishment. See United
States v. May, 535 F.3d 912, 920 (8th Cir. 2008) (“SORNA’s
registration requirement demonstrates no congressional intent
to punish sex offenders”); see also United States v. Young,
585 F.3d 199, 204-05 (5th Cir. 2009).
[11] Given the high standard that is required to establish
cruel and unusual punishment, we hold that SORNA’s regis-
tration requirements do not violate the Eighth Amendment.
C. Self-Incrimination
Defendants argue that SORNA’s registration requirement
violates the self-incrimination clause of the Fifth Amendment
by requiring registrants to file documents acknowledging
commission of a sex offense. Because SORNA registrants are
compelled to register under threat of legal sanction, and
because the documents could potentially be used to prove the
commission of a prior sex crime or in determining sentencing
enhancements, defendants argue that the registration require-
ment is unconstitutional.
[12] The Fifth Amendment protects a person from being
“compelled in any criminal case to be a witness against him-
self.” U.S. Const. amend. V. This protection extends not only
to criminal proceedings, but any proceeding in which the
answers might incriminate the individual in a future criminal
proceeding. Allen v. Illinois, 478 U.S. 364, 368 (1986)
(emphasis added). “[T]he Fifth Amendment privilege may not
be invoked to resist compliance with a regulatory regime con-
structed to effect the State’s public purposes unrelated to the
enforcement of its criminal laws.” Balt. Dep’t of Social Servs.
v. Bouknight, 493 U.S. 549, 556 (1990).
[13] The registration required under SORNA does not sub-
ject the defendants to any additional criminal exposure or lia-
710 UNITED STATES v. JUVENILE MALE
bility. Rather, it requires only an acknowledgment that they
have been previously adjudicated or convicted of a crime. The
Fifth Amendment is designed to protect against prospective
incrimination, but here the defendants have already pleaded
true to the underlying criminal conduct. Other circuits have
also rejected Fifth Amendment challenges to sex offender reg-
istration. See, e.g., United States v. Simon-Marcos, 363 Fed.
App’x 726, 728 (11th Cir. 2010) (“[Defendant] cannot show,
and does not attempt to show, that anything he would have
been required to provide under Georgia’s sex offender statute
would have confronted him with a substantial hazard of self-
incrimination.”); Doe v. Miller, 405 F.3d 700, 717-18 (8th
Cir. 2005) (holding that Fifth Amendment challenge to sex
offender registration statute “is both misdirected and prema-
ture”).
Review of the cases in which the Supreme Court concluded
that registration requirements violate the self-incrimination
clause is instructive. In these cases, it is evident that an
unconstitutional registration would require disclosure that is
effectively an admission of uncharged criminal activity. See,
e.g., Leary v. United States, 395 U.S. 6 (1969) (invalidating
statute requiring defendant to identify himself as transferee of
marijuana who had failed to register and pay an occupational
tax); Haynes v. United States, 390 U.S. 85 (1968) (striking
down statute that required registration of individuals transact-
ing in firearms and that was applied only to weapons used
principally by persons engaged in unlawful activities); and
Marchetti v. United States, 390 U.S. 39, 60-61 (1968) (strik-
ing down statute requiring gamblers to register with the Inter-
nal Revenue Service, in light of wide prohibition of
gambling). Under these statutes, compliance with the disclo-
sure requirements “produced an immediate or real and appre-
ciable hazard of self-incrimination due to the fact that the
statutes were largely designed to discover . . . involvement in
the prohibited activity.” S.E.C. v. Fehn, 97 F.3d 1276, 1292
(9th Cir. 1996) (internal quotation marks omitted). That is not
the case with SORNA, which does not require the disclosure
UNITED STATES v. JUVENILE MALE 711
of any information that would constitute admission of an
uncharged crime.
[14] Because defendants fail to establish that registration
under SORNA could subject them to future criminal liability,
they cannot properly avail themselves of the Fifth Amend-
ment’s protections against self-incrimination.
D. Substantive Due Process
Defendants argue that SORNA’s registration requirement
violates their substantive due process rights because it dis-
cards their “right to lifetime confidentiality” under the FJDA
and subjects them to “onerous lifetime probation.”
[15] The Due Process Clause protects individual liberty
against “certain government actions regardless of the fairness
of the procedures used to implement them.” Daniels v. Wil-
liams, 474 U.S. 327, 331 (1986). In a substantive due process
analysis, we must first consider whether the statute in ques-
tion abridges a fundamental right. Reno v. Flores, 507 U.S.
292, 302 (1993) (explaining that the analysis begins with a
“careful description of the asserted right”). If it does, the stat-
ute will be subject to strict scrutiny and is invalidated unless
it is “narrowly tailored to serve a compelling state interest.”
Id. If not, the statute need only bear a “reasonable relation to
a legitimate state interest to justify the action.” Washington v.
Glucksberg, 521 U.S. 702, 722 (1997).
[16] Defendants fail to identify the fundamental right
implicated by SORNA’s registration requirement, and instead
focus on whether the statute is penal in nature under the fac-
tors laid out in Kennedy v. Mendoza-Martinez, 372 U.S. 144,
168-69 (1963). The Supreme Court has described the “funda-
mental” rights protected by substantive due process as “those
personal activities and decisions that this Court has identified
as so deeply rooted in our history and traditions, or so funda-
mental to our concept of constitutionally ordered liberty, that
712 UNITED STATES v. JUVENILE MALE
they are protected by the Fourteenth Amendment.” Glucks-
berg, 521 U.S. at 727. Those rights are few, and include the
right to marry, to have children, to direct the education and
upbringing of one’s children, to marital privacy, to use contra-
ception, to bodily integrity, to abortion, and to refuse
unwanted lifesaving medical treatment. Id. at 720. None of
these rights are, or could be, asserted by defendants in this
case. Nor do any of defendants’ rights that are potentially at
stake appear to be “so rooted in the traditions and conscience
of our people as to be ranked as fundamental,” Snyder v. Mas-
sachusetts, 291 U.S. 97, 105 (1934), overruled on other
grounds by Malloy v. Hogan, 378 U.S. 1 (1964), and “implicit
in the concept of ordered liberty,” such that “neither liberty
nor justice would exist if they were sacrificed,” Palko v. Con-
necticut, 302 U.S. 319, 325-26 (1937).
This conclusion is consistent with our holding in Doe v.
Tandeske, 361 F.3d 594, 597 (9th Cir. 2004), where we found
that individuals convicted of serious sex offenses do not have
a fundamental right to be free from sex offender registration
requirements, and that such requirements serve “a legitimate
nonpunitive purpose of public safety, which is advanced by
alerting the public to the risk of sex offenders in their commu-
nity.” Id. (internal quotation marks omitted). Several other
circuits have similarly rejected substantive due process chal-
lenges to sex offender registration, holding that sex offenders
do not have a fundamental right to avoid publicity. See, e.g.,
United States v. Ambert, 561 F.3d 1202, 1209 (11th Cir.
2009) (holding that the right of a sex offender to refuse subse-
quent registration of his or her personal information with
Florida law enforcement and prevent publication of this infor-
mation on Florida’s Sexual Offender/Predator website is not
a right that is “deeply rooted in this Nation’s history and tradi-
tion”); Does v. Munoz, 507 F.3d 961, 965-66 (6th Cir. 2007)
(holding that juvenile sex offenders’ interest in private records
was not a fundamental right); Doe v. Mich. Dep’t of State
Police, 490 F.3d 491, 501 (6th Cir. 2007) (holding that juve-
nile sex offender registration “does not rise to the level of a
UNITED STATES v. JUVENILE MALE 713
substantive due process violation based upon the relevant
caselaw, but the inconsistency and the harms to the plaintiffs
from their inclusion on the registry are troubling and notewor-
thy”).
[17] Given the limited range of rights that have been rec-
ognized as “fundamental” for the purposes of substantive due
process analysis, defendants have failed to establish a sub-
stantive due process violation.
E. Procedural Due Process
Defendants argue that SORNA’s registration requirement
violates their procedural due process rights by treating their
juvenile adjudication as a criminal conviction and subjecting
them to the resulting publicity, without the benefit of a public
jury trial or transfer hearing.
We analyze a procedural due process claim in two steps.
“ ‘[T]he first asks whether there exists a liberty or property
interest which has been interfered with by the State; the sec-
ond examines whether the procedures attendant upon that
deprivation were constitutionally sufficient.’ ” Carver v. Leh-
man, 558 F.3d 869, 872 (9th Cir. 2009) (quoting Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989)).
[18] Defendants argue that the interest at stake is their
expectation of confidentiality in juvenile proceedings, which
they allege is undermined by SORNA’s public registration
requirements. However, SORNA does not render the entire
juvenile adjudication process public. Juvenile sex offenders
can still avail themselves of closed hearings, sealed records,
and the other procedural protections of the juvenile process.
But more importantly, because we conclude that the confiden-
tiality provisions of the FJDA were intentionally superseded
by the passage of SORNA, the underlying interest in confi-
dentiality that defendants rely upon no longer exists. In the
absence of that specific statutory right, defendants offer no
714 UNITED STATES v. JUVENILE MALE
support for the notion that they have a broader right. In fact,
the Supreme Court has held that adverse publicity or harm to
the reputation of sex offenders does not implicate a liberty
interest for the purposes of due process analysis. Conn. Dep’t
of Pub. Safety v. Doe, 538 U.S. 1, 7 (2003).
Defendants rely heavily on the factors set forth in
Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), to establish
that SORNA is a punitive statute, and thus necessarily
deprives them of a liberty or property interest. Whether
SORNA is punitive is not dispositive. Even if defendants
were correct that SORNA is punitive, that does not necessar-
ily give rise to a protected liberty interest for the purposes of
due process. We have recognized that constitutionally pro-
tected liberty interests can be created where a law sets forth
“substantive predicates to govern official decision making”
and contains “explicitly mandatory language” that mandates
a particular outcome. Valdez v. Rosenbaum, 302 F.3d 1039,
1044 (9th Cir. 2002) (internal quotation marks omitted). How-
ever, no such legal basis exists here, as the FJDA’s provisions
have been superseded by SORNA. Our conclusion is consis-
tent with that of other circuits that have considered this ques-
tion, each rejecting the argument that SORNA is a punitive
statute and characterizing it instead as a civil regulation.4 See,
e.g., United States v. May, 535 F.3d 912, 920 (8th Cir. 2008)
(“SORNA’s registration requirement demonstrates no con-
gressional intent to punish sex offenders”); see also United
States v. Young, 585 F.3d 199, 204-05 (5th Cir. 2009) (“[W]e
now hold — in line with all of our sister Circuits to have con-
sidered the issue — that SORNA is a civil regulation”).
[19] Even if defendants had sufficiently identified an inter-
est at stake, juvenile offenders would not be entitled to any
4
Because we need not reach this question to determine whether
SORNA’s registration provision violates Defendants’ procedural due pro-
cess rights or constitutes cruel and unusual punishment, we do not specifi-
cally adopt this holding for the Ninth Circuit.
UNITED STATES v. JUVENILE MALE 715
additional process before they are subject to SORNA’s regis-
tration requirements. Additional process is only necessary
where it gives a sex offender the ability to prove or disprove
facts related to the applicability of the registration require-
ment. In other words, where “the law’s requirements turn on
an offender’s conviction alone — a fact that a convicted
offender has already had a procedurally safeguarded opportu-
nity to contest” — no additional process is required for due
process. Doe v. Tandeske, 361 F.3d 594, 596 (9th Cir. 2004)
(internal quotation marks omitted) (rejecting procedural due
process challenge to state sex offender registration statute
where additional process would be a “bootless exercise”
because the only relevant fact to whether registration is
required is whether a conviction exists); see also Conn. Dep’t
of Pub. Safety, 538 U.S. at 7-8 (denying procedural due pro-
cess challenge to state sex offender registry where registration
was required by the fact of conviction as sex offender, irre-
spective of any other factors, thus rendering any additional
process meaningless and unnecessary). In this case, juvenile
sex offenders are required to register on the basis of their
adjudicated juvenile status, which explicitly triggers
SORNA’s requirements under 42 U.S.C. § 16913. Thus,
because defendants are not challenging whether they received
adequate due process in their juvenile proceedings, there is no
basis for a procedural due process claim.
Further, adequate procedural safeguards at the conviction
stage are sufficient to obviate the need for any additional pro-
cess at the registration stage. United States v. Fernandes, 636
F.3d 1254, 1257 (9th Cir. 2011) (“Defendant was afforded
due process in his criminal proceeding and chose to plead
guilty to a sex offense. Requiring Defendant to register as a
sex offender does not violate his right to procedural due pro-
cess.”). The purpose of due process is to protect juvenile sex
offenders from unjust registry, but any juvenile required to
register under SORNA was protected at their adjudication by
the “fundamental fairness” standard. McKeiver v. Pennsylva-
nia, 403 U.S. 528, 543 (1970).
716 UNITED STATES v. JUVENILE MALE
Defendants may have serious concerns about the policy
ramifications of SORNA, particularly with regard to confi-
dentiality. However, even if SORNA subjects juvenile sex
offenders to a condition that adult sex offenders must comply
with, that does not necessarily eradicate all differences
between the adult and juvenile processes and transform the
latter into a “criminal” proceeding. Defendants’ concerns
about SORNA do not rise to a level that merits constitutional
recourse on procedural due process grounds.
F. Ineffective Assistance of Counsel
At the second oral argument in this case, defendants’ coun-
sel briefly raised, for the first time, an additional constitu-
tional argument grounded in the Sixth Amendment’s
guarantee of effective assistance of counsel. Defendants’
counsel failed to further explain the basis for this argument in
any detail at oral argument, but did acknowledge it was not
raised in any of the briefing.
Because this argument was not presented in the briefs —
including those specifically invited by us on any constitu-
tional issues implicated by SORNA — it has been forfeited.
Butler v. Curry, 528 F.3d 624, 642 (9th Cir. 2008) (holding
that a party has waived an argument where it “fail[ed] to raise
it either in the district court or in his brief on appeal, [and]
mention[ed] it for the first time at oral argument”). “ ‘We
review only issues [that] are argued specifically and distinctly
in a party’s opening brief.’ ” Christian Legal Soc’y of Univ.
of Cal. v. Wu, 626 F.3d 483, 485 (9th Cir. 2010) (quoting
Brownfield v. City of Yakima, 612 F.3d 1140, 1149 n.4 (9th
Cir. 2010)). Applying this standard, we have refused to
address claims that were only “argue[d] in passing,” Brown-
field, 612 F.3d at 1149 n.4, or that were “bare assertion[s] . . .
with no supporting argument,” Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1079 n.26 (9th Cir. 2008). We therefore
decline to address Defendants’ ineffective assistance of coun-
sel argument.
UNITED STATES v. JUVENILE MALE 717
V. Conclusion
[20] We therefore affirm the district courts’ imposition of
SORNA’s registration requirements as a condition of proba-
tion or supervision on the three juvenile defendants in this
case.
AFFIRMED.