United States v. Thompson , 431 F. App'x 2 ( 2011 )


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  •                 Not for Publication in West's Federal Reporter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
    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
    -2-
    States v. Thompson, 
    595 F. Supp. 2d 143
    , 150 (D. Me. 2009).                    The
    defendant subsequently entered a conditional guilty plea, Fed. R.
    Crim. P. 11(a)(2), reserving his right to appeal the denial of his
    pretrial motion to dismiss.           The district court accepted the plea
    and sentenced the defendant to a 37-month incarcerative term. This
    timely appeal followed.
    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, 
    621 F.3d 17
    , 27 (1st Cir.
    2010).    That holding disposes of the defendant's first due process
    argument, and anything more would be supererogatory.
    -3-
    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, 
    621 F.3d at 26
    .    These precedents are controlling.
    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.
    -4-
    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, 
    595 F.3d 151
    , 158-59 (3d Cir. 2010); United States v.
    May, 
    535 F.3d 912
    , 919-20 (8th Cir. 2008).
    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, 
    630 F.3d 39
    , 41-42 (1st Cir.
    2010) (looking to federal law to analyze ex post facto issue in
    federal criminal case); United States v. Muñoz-Franco, 
    487 F.3d 25
    ,
    55 (1st Cir. 2007) (same); cf. U.S. Const. art. VI, cl. 2 ("This
    Constitution, and the Laws of the United States which shall be made
    -5-
    in Pursuance thereof . . . shall be the supreme Law of the Land;
    and the Judges in every State shall be bound thereby. . . .").1
    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.
    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, 
    985 A.2d at 26
    .
    -6-
    

Document Info

Docket Number: 09-1946

Citation Numbers: 431 F. App'x 2

Judges: Howard, Lynch, Selya

Filed Date: 6/3/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023