REVISED October 8, 2009
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 08-51047 October 7, 2009
Charles R. Fulbruge III
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
NORMAN LAMAR YOUNG,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:
Norman Lamar Young – a sex offender – appeals his conviction under 18
U.S.C. § 2250(a) for traveling in interstate commerce and then knowingly failing
to update his registration information as required by the Sex Offender
Registration and Notification Act (SORNA). Young contends that, as applied to
him, SORNA violates his constitutional right to be free from ex post facto
punishment. It does not, so we affirm.
No. 08-51047
I. BACKGROUND
A. SORNA Statutory Framework
On July 27, 2006, President George W. Bush signed into law the Adam
Walsh Child Protection and Safety Act of 2006.1 Title I of the Act includes
SORNA, which “establishes a comprehensive national system for the registration
of [sex] offenders.”2 “[I]n response to the vicious attacks by violent predators,”
Congress sought through SORNA “to protect the public from sex offenders and
offenders against children . . . .”3
SORNA requires sex offenders to register in each jurisdiction in which
they reside or work.4 And sex offenders must update their registration
information within three business days of any change in residence or
employment.5 Failure to abide by these requirements can subject the sex
offender to prosecution. Indeed, a sex offender who “travels in interstate or
foreign commerce” and then “knowingly fails to register or update a registration
. . . shall be fined . . . or imprisoned not more than 10 years, or both.”6
Congress left it to the Attorney General’s discretion whether SORNA
would apply to sex offenders convicted before the Act’s passage: “The Attorney
1
Pub. L. No. 199-248, § § 101-155, 120 Stat. 587, 590-611 (2006).
2
42 U.S.C. § 16901.
3
42 U.S.C. § 16901.
4
42 U.S.C. § 16913(a).
5
42 U.S.C. § 16913(c).
6
18 U.S.C. § 2250(a).
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General shall have the authority to specify the applicability of the requirements
of this title to sex offenders convicted before the enactment of this Act . . . .”7
Pursuant to this authority, Attorney General Alberto Gonzales issued an interim
rule that became effective on February 28, 2007: “The requirements of the Sex
Offender Registration and Notification Act apply to all sex offenders, including
sex offenders convicted of the offense for which registration is required prior to
the enactment of that Act.”8 This rule became final on April 30, 2007.9
B. Facts
Norman Lamar Young is a sex offender. Indeed, on November 29, 2001,
he pleaded guilty in Texas state court to one count of Indecency with a Child by
Contact. After his release from prison in 2004, Young made his way to Florida.
Some three years later – in March of 2007 – Young provided registration
information to officials in Jacksonville in order to comply with SORNA. But, on
August 7, 2007, Young boarded a Greyhound bus and traveled to Texas. Law
enforcement officers later arrested Young in Midland – on August 22, 2007; on
December 27, 2007; and again on January 29, 2008. Young claims to have been
working at a Cheddar’s restaurant during his time back in Texas. At no point
after traveling from Florida to Texas did Young update his SORNA information.
The United States Government charged Young in a superseding
indictment under 18 U.S.C. § 2250(a) for violating the SORNA requirements.
7
42 U.S.C. § 16913(d).
8
72 Fed. Reg. 8894 (Feb. 28, 2007).
9
See 28 C.F.R. § 72.3.
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Young filed a motion to dismiss, based in part on his idea that SORNA provides
for ex post facto punishment. The Magistrate Judge recommended denying
Young’s motion to dismiss, and the district court adopted the Magistrate Judge’s
recommendation. As a result, Young entered a conditional guilty plea, reserving
the right to appeal the ex post facto ruling.
II. ANALYSIS
The only issue on appeal is whether SORNA violates Young’s right to be
free from ex post facto punishment. This is a matter of first impression in this
court.
A. Standard of Review
The parties agree that Young did not object to the Magistrate Judge’s
report, so we would normally follow our rule from Douglass v. United States
Automobile Ass’n and review any claim on appeal for plain error.10 However –
as the Government responsibly points out – the Magistrate Judge did not warn
Young of the consequences of failing to object. Young therefore did not have
notice of the result of not objecting.11 We thus proceed to review de novo Young’s
10
79 F.3d 1415, 1417 (5th Cir. 1996) (en banc) (“We hold that failure to object timely to
a magistrate judge’s report and recommendation bars a party, except upon grounds of plain
error . . . from attacking on appeal not only the proposed factual findings, but also the proposed
legal conclusions, accepted . . . by the district court provided that the party has been served
with notice that such consequences will result from a failure to object . . . .”).
11
See id. Although it is clear that the Magistrate Judge did not furnish Young with the
standard warning that he must object to the report or face plain error review, other portions
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No. 08-51047
constitutional claim.12
B. Ex Post Facto Punishment
The so-called Ex Post Facto Clause of the United States Constitution
actually refers to two prohibitions – one against the Congress13 and one against
the states14 – that forbid the government from enacting any law “which imposes
a punishment for an act which was not punishable at the time it was committed;
of the record are fuzzy. Indeed, though Young’s appellate counsel concedes that Young did not
timely object to the Magistrate Judge’s report, the Magistrate Judge at the plea colloquy
seemed to take for granted that Young intended to appeal the ex post facto issue. The
Magistrate Judge explained to Young: “Now, I will candidly tell you that there’s not a lot of law
in this realm. I think I mentioned that to you at the arraignment. I’ve got several of these
cases right now, one where I found it should be dismissed, another one and your case where
I found that it should not be dismissed. But I will tell you quite candidly we don’t have a lot
of law telling us exactly how we ought to apply this statute right now. So what I’ve explained
to you is my best case knowledge of what’s required of you right now under the law. Quite
frankly, I’ll be glad to, if your case goes up on appeal, get some law on the thing so we’ll know
what the obligations fully are under this statute.” R. at 119-20. And later: “But I will note in
the report to the district judge that your plea agreement specifically allows you to appeal the
issue of whether or not you had an obligation to register under the Sex Offender Registration
Act. I will make that very apparent on the face of it so that if there’s any question it’s in the
plea agreement, it’s also in my finding as well.” R. at 126. We are thus faced with two
alternative possible factual histories that – fortunately – lead to the same result: either Young
did object to the report; or he did not object but the Magistrate Judge did not warn him of the
consequences. Each possibility allows Young to avoid plain error review.
12
C.f. Guillory v. PPG Indus., Inc., 434 F.3d 303, 308 (5th Cir. 2005) (explaining that,
when the Douglass rule does not apply, “the standard of review depends upon the issue on
appeal”); Meister v. Tex. Adjutant Gen.’s Dep’t, 233 F.3d 332, 336 (5th Cir. 2000) (reviewing de
novo a legal question when the Douglass rule did not apply).
13
U.S. CONST., Art. I, § 9, cl. 3.
14
U.S. CONST., Art. I, § 10, cl. 1.
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No. 08-51047
or imposes additional punishment to that then prescribed . . . .”15 Justice Chase,
in the watershed case Calder v. Bull, described specifically the types of laws that
violate the ex post facto prohibitions:
1st. Every law that makes an action done before the passing of the
law, and which was innocent when done, criminal; and punishes
such action. 2d. Every law that aggravates a crime, or makes it
greater than it was, when committed. 3d. Every law that changes
the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. . . .16
The Supreme Court has uniformly reaffirmed Justice Chase’s definition as
authoritative.17
Young’s ex post facto argument is a bit unclear, but he seems to challenge
SORNA in two ways: first, by suggesting that its sanctioning provision (18
U.S.C. § 2250) in some way punishes him retroactively; and, second, by
suggesting that SORNA’s registration provision increases the punishment for his
15
Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867).
16
Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798) (opinion of Chase, J.).
17
See Collins v. Youngblood, 497 U.S. 37, 41-42 (1990) (citing Justice Chase); id. at 42
(“So well accepted were [Justice Chase’s] principles that the Court in Beazell v. Ohio . . . was
able to confidently summarize the meaning of the Clause as follows: ‘It is settled, by decisions
of this Court so well known that their citation may be dispensed with, that any statute which
punishes as a crime an act previously committed, which was innocent when done; which makes
more burdensome the punishment for a crime, after its commission, or which deprives one
charged with crime of any defense available according to law at the time when the act was
committed is prohibited as ex post facto.’” (citations omitted)); id. at 43 (“The Beazell
formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto
Clause: Legislatures may not retroactively alter the definition of crimes or increase the
punishment for criminal acts.”).
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No. 08-51047
2001 sex crime.18 That is, Young contends that either his incarceration under
SORNA or the mere burden of having to register under SORNA violates the ex
post facto prohibition of the Constitution.
i. Sanctioning Provision under Title 18
The consequences under 18 U.S.C. § 2250 do not immediately jump out as
after-the-fact types of punishment. Indeed, for a penal law to be considered ex
post facto, it “must apply to events occurring before its enactment.”19 Although
SORNA does relate to old conduct that was criminal when done, the question is
whether SORNA punishes this old conduct. On its face, SORNA does not
purport to punish sex offenders for their old crimes; instead, the government can
only punish sex offenders for currently failing to register. Specifically, SORNA’s
sanctioning provision contains two definitional requirements, a scienter, and one
triggering act – punishing only: “sex offenders” (definition); who have “traveled
in interstate . . . commerce” (definition); and “knowingly” (scienter);
subsequently fail to update their SORNA registry information (the act).
Especially as applied to Young – who both traveled in interstate commerce and
knowingly failed to update his registry only after the Attorney General had made
SORNA’s requirements applicable to all sex offenders – the forbidden act is not
one which was legal at the time he committed it. His incarceration itself thus
18
Young also makes an abortive attempt to convince us that, as “a convicted sex
offender,” Young “is, arguably, a member of an ‘unpopular group’” – and that Congress
vindictively enacted SORNA. Appellant’s Br. at 10-11. Accepting this as a contention that the
act denied Young equal protection of the laws, it is meritless.
19
Weaver v. Graham, 450 U.S. 24, 29 (1981) (citation omitted).
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No. 08-51047
does not violate the Constitution’s ex post facto prohibitions.20
ii. Registration Requirements under Title 42
Because SORNA permits prosecution only of current acts, Young is left to
argue that SORNA as a regulatory whole is an ex post facto punishment for his
2001 sex crime. That is, Young must contend that SORNA and its attendant
registration burdens – isolated from the fact of his incarceration under SORNA
– increase his punishment for his 2001 sex crime. Viewed in this way, the
inconvenience and embarrassment of registering as a sex offender are
punishments appended after the fact onto his 2001 prison sentence. Young’s
theory would be: If SORNA’s registration requirements under Title 42 are
unconstitutional, then the Government cannot punish him under Title 18 for
failing to abide by them – and Young will go free.
The Supreme Court has provided us with the framework for determining
whether “a sex offender registration law constitutes retroactive punishment
forbidden by the Ex Post Facto Clause.”21 First, we must “ascertain whether the
legislature meant the statute to establish ‘civil’ proceedings.”22 If the legislature
intended with the registration requirements to impose punishment, then the law
20
It is important to note that we express no opinion on so-called “gap” cases in which a
sex offender traveled in interstate commerce or failed to update his or her registry after
SORNA’s execution (July 27, 2006) but before the Attorney General’s retroactive application
(February 28, 2007). No such issue is before the court.
21
See Smith v. Doe, 538 U.S. 84, 92 (2003).
22
Id. (citing Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).
8
No. 08-51047
is automatically unconstitutional.23 On the other hand, if the legislature’s
“intention was to enact a regulatory scheme that is civil and nonpunitive,” then
the court must ask “whether the statutory scheme is so punitive either in
purpose or effect as to negate [the government’s] intention to deem it civil.”24
The court must defer to the legislature’s stated intent – as “only the clearest
proof will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.”25
Turning to the statute at hand, we now hold – in line with all of our sister
Circuits to have considered the issue26 – that SORNA is a civil regulation and,
thus, does not run afoul of the Constitution’s ex post facto prohibitions. With
SORNA, Congress expressly sought to “establish[] a comprehensive national
system for the registration of [sex] offenders”27 in order “to protect the public
from sex offenders and offenders against children.”28 This express language
indicates that Congress sought to create a civil remedy.29 Therefore, Young must
23
See id.
24
Id. (citations and internal quotations omitted).
25
Id. (citations and internal quotations omitted).
26
See United States v. Gould, 568 F.3d 459, 466 (4th Cir. 2009); United States v.
Samuels, 319 F. App’x 389, 395 (6th Cir. 2009) (unpublished); United States v. May, 535 F.3d
912, 919-20 (8th Cir. 2008); United States v. George, 2009 U.S. App. LEXIS 19051, 13-16 (9th
Cir. 2009); United States v. Hinckley, 550 F.3d 926, 935-38 (10th Cir. 2008); United States v.
Lawrance, 548 F.3d 1329, 1332-36 (10th Cir. 2008); United States v. Ambert, 561 F.3d 1202,
1208 (11th Cir. 2009).
27
42 U.S.C. § 16901.
28
42 U.S.C. § 16901.
29
Although the goal of protecting the public might also be consistent with the purposes
of criminal justice, the government’s “pursuit of it in a regulatory scheme does not make the
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No. 08-51047
present the “clearest proof” that either the purpose or the effect of the regulation
is in fact so punitive as to negate its civil intent. This he cannot do.
a. Punitive Purpose
In an attempt to show implicit punitive purpose, Young lists a half-dozen
ways in which SORNA is supposedly different from the Alaska Sex Offender
Registration Act (ASORA) upheld in Smith v. Doe.30 However, Young is
analytically mistaken. First, Young argues that SORNA broadens the types of
sex offenders subject to registration; second, Young argues that SORNA creates
classes of offenders. It is hard to see how either of these characteristics even
tends to reveal punitive purpose. To the contrary, specification and
comprehensiveness are hallmarks of civil regulation.
Third, Young claims that SORNA lengthens the duration of registration,
and, fourth, that SORNA reduces the time frame for the sex offender to update
his registry. Both of these claims are factually false: certain Alaskan offenders
must register for life;31 and under ASORA a sex offender has only one business
day to register after “becoming physically present” in Alaska.32
Fifth, Young argues that SORNA imposes harsh penalties for violations
of its regulations, and, sixth, that Congress codified the sanctions component of
objective punitive.” Smith, 538 U.S. at 94.
30
See ALASKA STAT. § 12.63.010 (2000). The Court in Smith reviewed the year 2000
version of the Alaskan statute. See Smith, 538 U.S. at 90.
31
See ALASKA STAT. § 12.63.010(d)(2) (2000).
32
See ALASKA STAT. § 12.63.010(a)(3) (2000).
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No. 08-51047
SORNA under Title 18 – a criminal portion of the United States Code. Young
is confusing the issue by suggesting that the penalties under Title 18 reveal an
obfuscated punitive intent in the registration requirements of Title 42. Indeed,
although the Adam Walsh Act contained both the registration and the remedial
provisions, it is at least useful to think of them as conceptually separate. Title
42 imposes the burden of registration on previous sex offenders – and at least
plausibly might be considered ex post facto. SORNA’s Title 18 provisions, on the
other hand, can punish Young only for current conduct – foreclosing any ex post
facto claim. And, in any event, the Supreme Court rejected both of these
arguments in Smith.
The Court held that “partial codification of the Act in the . . . criminal
procedure code is not sufficient to support a conclusion that the legislative intent
was punitive.”33 Then the Court noted that the Alaskan “scheme is enforced by
criminal penalties.”34 Indeed, a violation of the Alaskan registration statute
subjects offenders to punishment as a class C felon35 – which can lead to five
years in prison.36 The maximum length of incarceration under SORNA – 10
years – is not so high as to make it of a different kind than that of the Alaskan
statute.
b. Punitive Effect
33
Smith, 538 U.S. at 95.
34
Id. at 96. See ALASKA STAT. § 11.56.835 (2000).
35
See ALASKA STAT. § 11.56.835(d) (2000).
36
See ALASKA STAT. § 11.56.835(e) (2009). The five-year statutory maximum has not
changed since Smith.
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No. 08-51047
Young makes no effort to prove that the effect of SORNA is so punitive as
to make it not a civil scheme, and any attempt to do so would have been futile.
The Supreme Court explained in Smith that a court is to look to the factors
listed in Kennedy v. Mendoza-Martinez37 when analyzing whether the effects of
a purportedly civil act are in fact overly punitive.38 For sex registration statutes,
the “factors most relevant to our analysis are whether, in its necessary
operation, the regulatory scheme: has been regarded in our history and
traditions as a punishment; imposes an affirmative disability or restraint;
promotes the traditional aims of punishment; has a rational connection to a
nonpunitive purpose; or is excessive with respect to this purpose.”39 After
analyzing the Alaskan statute under these factors, the Supreme Court in Smith
concluded that the act was not punitive in effect – and that it was not even a
close call.40 Upon review, there is no reason for us to come to a different
conclusion with SORNA – particularly without any prompting from Young.
III. CONCLUSION
We reject Young’s challenge to SORNA under the ex post facto prohibitions
of the Constitution. AFFIRMED.
37
372 U.S. 144, 168-69 (1963).
38
Smith, 538 U.S. at 97.
39
Id.
40
See id. at 105-06.
12