Case Information
*1 Not for Publication in West's Federal Reporter United States Court of Appeals For the First Circuit
No. 09-1946
UNITED STATES OF AMERICA,
Appellee,
v.
KENNETH THOMPSON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Chief Judge, Selya and Howard, Circuit Judges
Virginia G. Villa, Assistant Federal Defender, for appellant. Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee. June 3, 2011
*2
SELYA, Circuit Judge. Defendant-appellant Kenneth Thompson challenges his conviction under the Sex Offender Registration and Notification Act (SORNA). Pub. L. No. 109-248, tit. I, §§ 101-155, 120 Stat. 587, 590-611 (2006). After careful consideration, we affirm.
The facts are straightforward. In 2001, the defendant was convicted federally of possession of child pornography, and in a parallel state proceeding of gross sexual assault and sexual abuse of a minor. He served concurrent prison terms for these offenses and, in December of 2006, began serving the probationary portions of those sentences. He also registered as a sex offender as required by both federal and Maine law. See 42 U.S.C. § 16913; Me. Rev. Stat. Ann. tit. 34-A, § 11223.
The next summer, the authorities learned that the defendant had violated the conditions of his probation. An attempt to arrest him at the address listed in his sex offender registration proved fruitless because he no longer lived there. His whereabouts were unknown until February of 2008, when he registered a motor vehicle in New Mexico.
In due course, a federal grand jury sitting in the
District of Maine indicted the defendant on a single count of
failing to register as a sex offender under SORNA. See 18 U.S.C.
§ 2250(a). The defendant moved to dismiss the indictment on
constitutional grounds, but the district court demurred. United
*3
States v. Thompson,
All of the defendant's claims are constitutional in nature and engender de novo review. United States v. Volungus, 595 F.3d 1, 4 (1st Cir. 2010). We start with his claim that his conviction offends the Due Process Clause. This claim has two parts. We scrutinize each of these components separately.
First, the defendant notes that at the time of his interstate travel and later failure to register, neither Maine nor New Mexico had yet enacted statutes or promulgated regulations implementing SORNA. Thus, he contemplates, he could not have registered under SORNA. For that reason, he says that his conviction offends due process.
This contention is foreclosed by circuit precedent. We
have held squarely that, under SORNA, "the registration
requirements for sex offenders are neither conditioned on nor
harnessed to state implementation of SORNA's state-directed
mandates." United States v. DiTomasso,
The defendant's second due process argument also founders on the shoals of circuit precedent. He asserts that the government could not prove that he "knowingly" violated the statute; after all, neither Maine nor New Mexico had notified him of his obligation to register under SORNA, nor was there any other proof that he had actual knowledge that such an obligation existed. But this assertion rests on the unfounded assumption that section 2250(a) requires a showing of specific intent (i.e., a conscious flouting of SORNA's registration requirement) rather than merely a showing of general intent (i.e., a knowing failure to register, simpliciter). Our decision in United States v. Stevens, ___ F.3d ___, ___ (1st Cir. 2011) [No. 09-2024, slip op. at 7], consigns this assertion to the scrap heap. The defendant's second due process argument therefore fails.
Next, the defendant argues that his indictment
transgressed the Commerce Clause, U.S. Const. art. I, § 8, cl. 3,
because Congress lacked power thereunder to enact SORNA. This
argument, too, runs up against settled law. We repeatedly have
upheld SORNA against Commerce Clause challenges. See, e.g.,
Stevens, ___ F.3d at ___ [slip op. at 9]; DiTomasso,
Finally, the defendant advances a series of arguments premised on the Ex Post Facto Clause. U.S. Const. art. I, § 9, cl. 3. These arguments are hopeless.
We need not tarry. The defendant insists that using a pre-SORNA conviction to ground the current indictment violates ex post facto principles. We do not agree.
The defendant's position overlooks the reality that new
acts — his interstate travel and subsequent failure to register —
comprise elements of the offense of conviction. There is,
therefore, no colorable ex post facto claim. See United States v.
Shenandoah,
In an effort to blunt the force of this reasoning, the
defendant repeatedly invokes the decision of the Supreme Judicial
Court of Maine in State v. Letalien, 985 A.2d 4, 7 (Me. 2009)
(discussing retroactive application of Maine's sex offender
registration and notification law). Letalien is of no consequence
here. Federal jurisprudence, not state jurisprudence, governs the
resolution of ex post facto challenges in federal criminal cases.
See, e.g., United States v. Rodriguez,
We need go no further. For the reasons elucidated above, we summarily affirm the defendant's conviction. See 1st Cir. R. 27.0(c).
Affirmed.
Notes
[1] In all events, the defendant committed his predicate sex
crimes in 2001, and Letalien applies only to crimes committed prior
to the 1999 effective date of Maine's sex offender registration
statute. See Letalien,