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United States of America v. Mark Steven Elk Shoulder

October 5, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MARK STEVEN ELK SHOULDER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Montana Jack D. Shanstrom, Senior District Judge, Presiding D.C. No. 1:09-cr-00023-JDS-1

The opinion of the court was delivered by: Ikuta, Circuit Judge:

FOR PUBLICATION

OPINION

Submitted June 1, 2012*fn1 Portland, Oregon

Before: A. Wallace Tashima, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

OPINION

This appeal challenges the constitutionality of certain key provisions of the Sex Offender Registration and Notification Act (SORNA). Pub. L. 109-248, Tit. I, 120 Stat. 590 (2006) (codified in scattered sections of the U.S.C.). Defendant Mark Steven Elk Shoulder was prosecuted under 18 U.S.C. § 2250(a) for failing to comply with the sex offender registration requirements set forth in 42 U.S.C. § 16913. He now argues that his conviction was invalid, because SORNA violates the Ex Post Facto Clause and the Due Process Clause, and because Congress lacked the constitutional authority to enact SORNA. We reject these constitutional challenges, and affirm the judgment of the district court.

I

SORNA was enacted in response to "Congress' awareness that pre-[SORNA] registration law consisted of a patchwork of federal and 50 individual state registration systems." Reynolds v. United States, 132 S. Ct. 975, 978 (2012) (citing 73 Fed. Reg. 38045 (2008)). SORNA sought to improve the uniformity and effectiveness of those systems by, among other things, "creating federal criminal sanctions applicable to those who violate the Act's registration requirements." Id. To effectuate this goal, SORNA's registration requirement, 42 U.S.C. § 16913, requires all state and federal sex offenders, as defined,*fn2 to "register, and keep the registration current, in each jurisdiction where the offender" resides, works, or goes to school.*fn3

A person who fails to register as required by § 16913 may be criminally prosecuted under 18 U.S.C. § 2250(a). This provision requires the government to prove that the defendant: (1) is required to register under SORNA, (2) is a "sex offender" as defined due to a conviction under federal law (or the law of certain other listed jurisdictions) or a person who "travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country" and, (3) knowingly failed to register or update a registration as required by SORNA.*fn4

These SORNA provisions provide the backdrop to the facts of this case. In 1991, Elk Shoulder was convicted in a federal district court in Montana of sexual abuse of a six-year-old child in violation of 18 U.S.C. § 2241(c).*fn5 Elk Shoulder was sentenced to 172 months in prison, followed by five years supervised release. When Elk Shoulder was released in December 2003, officials informed him that he was required to register as a sex offender under Montana law. He registered in Yellowstone County, Montana, where he signed and initialed the state's "Sexual and Violent Offender Registration Form." By doing so, Elk Shoulder acknowledged that under state law, he was required to maintain a current and updated registration and that his duty to register would continue for the rest of his life, even after the expiration of probation or parole.

Weeks later, in February 2004, Elk Shoulder violated the terms of his supervised release and was sentenced to thirty months in prison, followed by thirty months of supervised release. Upon his release from prison a second time in April 2006, he again registered as a sex offender in Yellowstone County. SORNA was enacted three months later. In August 2006, Elk Shoulder again violated the terms of his supervised release and was sentenced to another twenty-four months in prison.

After his release from prison a third time in May 2008, Elk Shoulder moved around Montana, living at various times in the Northern Cheyenne Indian Reservation, Bozeman, Lame Deer, Billings, and Wolf Point. He did not register as a sex offender in any of these locales.

In 2009, Elk Shoulder was indicted under 18 U.S.C. § 2250(a) for violating the SORNA registration requirements in 42 U.S.C. § 16913. Before trial, Elk Shoulder brought two motions to dismiss the indictment. In the first, he asserted that SORNA's registration provision exceeded Congress's authority under the Commerce Clause. In the second, he claimed that the retroactive application of these provisions violated the Ex Post Facto Clause. The district court denied both motions. After a bench trial, the court found Elk Shoulder ...


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