United States v. Shoulder
738 F.3d 948
9th Cir.2012Background
- SORNA imposes federal registration requirements on sex offenders and criminalizes failure to register under 18 U.S.C. § 2250(a).
- Elk Shoulder, convicted of a 1992 federal sex offense in Montana, complied with state registration, then moved, and did not register in other states after SORNA’s enactment.
- SORNA did not retroactively apply to pre‑Act offenders until AG regulations made it applicable to them; Elk Shoulder became subject to SORNA in August 2008 via Wetterling Act provisions.
- Elk Shoulder was indicted in 2009 under § 2250(a) for failing to register; district court denied his challenges and he was convicted after a bench trial.
- The Ninth Circuit initially affirmed, then the Supreme Court Kebodeaux (2013) held SORNA could constitutionally apply where the offender remained under federal registration obligations, guiding the case.
- The court ultimately held SORNA’s application to Elk Shoulder constitutional under Ex Post Facto and due process analyses, relying on Kebodeaux and related Wetterling Act provisions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does SORNA violate Ex Post Facto? | Elk Shoulder argues retroactive punishment for pre‑Act offense. | SORNA's registration is nonpunitive and applies prospectively under Wetterling Act framework per Kebodeaux. | No Ex Post Facto violation; application prospective. |
| Does SORNA violate due process by imposing impossibility or lack of notice? | State delays in implementing SORNA made compliance impossible; no notice for SORNA duty. | Due process satisfied; notice exists via state registration obligation and knowledge of duty to register. | No due process violation; knowledge of state duty suffices. |
| Is SORNA authoritatively applicable to Elk Shoulder under the Property/Necessary and Proper Clauses? | Congress lacked authority to apply SORNA to someone released prior to enactment. | Kebodeaux chain shows authority; Wetterling Act + SORNA within Congress's power for pre‑existing registration regimes. | Applicable within Congress's authority; no constitutional overreach. |
| Does the presumption against retroactivity apply to Wetterling Act/SORNA as to pre‑Act offenders? | Retroactivity prohibited by presumption and Ex Post Facto concerns. | Wetterling Act provisions addressed postenactment dangers and are not retroactive; Kebodeaux controls. | SORNA provisions applied prospectively to Elk Shoulder. |
| Does Major Crimes Act native‑sovereignty framing affect the analysis? | Major Crimes Act constrains federal jurisdiction and authority over Elk Shoulder. | Kebodeaux reasoning applies; Elk Shoulder was subject to federal registration under Wetterling Act, supporting SORNA application. | No impediment; Kebodeaux reasoning controls. |
Key Cases Cited
- United States v. Kebodeaux, 133 S. Ct. 2496 (Supreme Court 2013) (SORNA constitutional as applied to an offender continuously subject to federal registration)
- United States v. Elkins, 683 F.3d 1039 (9th Cir. 2012) (SORNA registration nonpunitive; duty independent of state implementation)
- Smith v. Doe, 538 U.S. 84 (Supreme Court 2003) (internet notification nonpunitive; public safety informational purpose)
- United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010) (retroactivity discussion regarding Wetterling Act applicability)
- Reynolds v. United States, 132 S. Ct. 975 (Supreme Court 2012) (federal funds and encouragement mechanisms for state registries; uniformity goals)
- United States v. Crowder, 656 F.3d 870 (9th Cir. 2011) (contextual background on Wetterling Act and pre‑SORNA regime)