Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Elk Shoulder

United States District Court, D. Montana, Billings Division

December 16, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK STEVEN ELK SHOULDER, Defendant.

          ORDER DENYING DEFENDANT'S SECOND MOTION TO DISMISS

          SUSAN P. WATTERS UNITED STATES DISTRICT JUDGE

         A sex offender must appear in person and inform a jurisdiction each time he changes residences. 34 U.S.C. § 20913(c). If the sex offender becomes incarcerated, this requirement does not apply. Section 20915(a). But if a sex offender resides somewhere, becomes incarcerated, and returns there upon his release, it is not immediately apparent whether his term of incarceration should nevertheless be considered a change of residence. Defendant Mark Steven Elk Shoulder argues his term of incarceration was not a change in residence, and therefore, he was not required to appear in person and inform the jurisdiction upon his release.

         I. Background

         Elk Shoulder is a tier III sex offender under the Sex Offender Registration and Notification Act (SORNA). He last registered in compliance with SORNA in April 2016. (Doc. 24 at 2.) In March 2017, while he was living as a transient in Billings, Montana, law enforcement arrested Elk Shoulder on charges related to assault with a weapon. (Docs. 23 at 2, 25 at 4-5.) The following month, he was federally charged for failure to register under SORNA, and he pleaded guilty in January 2018. (Doc. 25 at 2-3.) The Court sentenced Elk Shoulder to a 12-month term of incarceration, but due to pending state charges, he was not released from custody until November 14, 2018. (Id. at 3.) Upon his release, Elk Shoulder again began living as a transient in Billings, and he again did not register as a sex offender. He was arrested for violations of his supervision on November 27, 2018, and later charged a second time for failure to register. (Id. at 3-4.) Elk Shoulder has filed a motion to dismiss the charge. (Doc. 23.) That motion is now ripe.

         II. Discussion

         Congress enacted SORNA in 2006 to "make more uniform" a "patchwork of federal and 50 individual registration systems" with "loopholes and deficiencies that had resulted in an estimated 100, 000 sex offenders becoming missing or lost." United States v. Kebodeaux, 570 U.S. 387, 399 (2013) (internal quotations and citations omitted). Under SORNA, a sex offender 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 student." 34 U.S.C. § 20913. The sex offender must provide "[t]he address of each residence at which the sex offender resides or will reside." Section 20914(a)(3). To keep his registration current, "A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction... and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry."[1] Section 20913. The definition of jurisdiction includes any state. Section 20911(10). Resides means "with respect to an individual, the location of the individual's home or other place where the individual habitually lives." Section 20911(13). 18 U.S.C. § 2250(a)(3) provides a criminal penalty for a sex offender who "knowingly fails to register or update a registration as required by [SORNA]."

         SORNA authorizes the Attorney General to "issue guidelines and regulations to interpret and implement" its statutory scheme. 34 U.S.C. § 20912(b). Therefore, the Attorney General promulgated The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030 (July 2, 2008) [hereinafter the SORNA Guidelines]. According to the SORNA Guidelines, habitually lives-one of two statutory definitions for resides-"should be understood to include places in which the sex offender lives with some regularity, and with reference to where the sex offender actually lives, not just in terms of what he would choose to characterize as his home address or place of residence for self-interested reasons." SORNA Guidelines, at 38062. "[A] sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days." Id. This does not, however, provide sex offenders a 30-day safe harbor from registration:

As to the timing of registration based on changes of residence, the understanding of "habitually lives" to mean living in a place for at least 30 days does not mean that the registration of a sex offender who enters a jurisdiction to reside may be delayed until after he has lived in the jurisdiction for 30 days. Rather, a sex offender who enters a jurisdiction in order to make his home or habitually live in the jurisdiction must be required to register within three business days, as discussed in Part X.A of these Guidelines. Likewise, a sex offender who changes his place of residence within a jurisdiction must be required to report the change within three business days, as discussed in Part X.A.

Id; see United States v. Thompson, 811 F.3d 717, 730 (5th Cir. 2016) (affirming a conviction for failure to register when the sex offender resided in a jurisdiction for only twenty days because the sex offender abandoned his residence in one city and relocated to another with no intention to return).

         By including habitually lives in its definition of resides, SORNA ensures that sex offenders who lack fixed abodes must register. When registering, though they cannot provide a definite address, "some more or less specific description should normally be obtainable concerning the place or places where such a sex offender habitually lives-e.g., information about a certain part of a city that is the sex offender's habitual locale . . . ." SORNA Guidelines, at 38057. Accordingly, a sex offender habitually lives in a jurisdiction when he lives there with the intent to remain with some regularity, or lives there for at least 30 days, even if the sex offender is transient. United States v. Alexander, 817 F.3d 1205, 1214 (10th Cir. 2016); United States v. Van Bur en, 599 F.3d 170 (2nd Cir. 2010).

         Nevertheless, SORNA's registration requirements do not apply to sex offenders who are incarcerated:

Given that there is virtually no risk that a sex offender will fall through the cracks or go missing while incarcerated, it would make little sense to apply SORNA's registration requirements and criminal provisions to incarcerated individuals. In fact, Congress recognized that the public is adequately protected against sex offenders locked behind bars: this is why sex offenders are not required under § [20913(b)] to initially register until the end of their post-conviction carceral sentences.

United States v. Gundy, 2013 WL 2247147, at *9 (S.D.N.Y. May 22, 2013), rev'd on other grounds, 804 F.3d 140 (2d Cir. 2015) (emphasis in original); see 34 U.S.C. § 20915 ("A sex offender shall keep the registration current for the full registration period (excluding any time the sex offender is in custody or civilly committed) ....").

         Elk Shoulder argues that because SORNA's registration requirements do not apply while a sex offender is incarcerated, incarceration does not qualify as a change in residence. Therefore, if an incarcerated sex offender returns to his former residence upon his release, Elk Shoulder argues SORNA treats the sex offender as never having changed residences in the first place-obviating the sex offender's need to update his registration. At issue, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.