United States v. David Walker , 552 F. App'x 646 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30199
Plaintiff - Appellee, D.C. No. 4:10-cr-00016-SEH-1
v.
MEMORANDUM*
DAVID HUGO WALKER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submission Deferred February 9, 2011
Submitted January 9, 2014**
Seattle, Washington
Before: TASHIMA,*** PAEZ, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
Judge Tashima was drawn to replace Judge B. Fletcher, who died after
submission was deferred.
David Hugo Walker was convicted of a federal sex crime in 1990 and
sentenced to an initial term of 135-months imprisonment. He was subsequently
placed on supervised release, which terminated in 2007, although his sex offender
reporting requirements continued indefinitely. In 2010 Walker was convicted of
failing to register as a sex offender in violation of 18 U.S.C. § 2250(a), part of the
Sex Offender Registration and Notification Act (“SORNA”). Walker appeals his
2010 conviction and raises three arguments. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
1. Walker argues that the district court should have dismissed the indictment
because Montana had not implemented SORNA at the time of his alleged offense
and therefore it was impossible for him to fail to register “as required by
[SORNA].” 18 U.S.C. § 2250(a)(3). This argument is foreclosed by our recent
decisions in Elkins and Elk Shoulder. United States v. Elk Shoulder, No.
10–30072, 2013 WL 5303242, at *5 (9th Cir. Sept. 23, 2013) (holding that “‘the
federal government’s prosecution of an alleged violation of SORNA is not
dependent on the individual state’s implementation of the administrative portion of
SORNA’” (quoting United States v. Elkins, 683 F.3d 1039, 1046 (9th Cir. 2012)).
We therefore reject Walker’s argument.
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2. Walker next argues that Congress did not have the power to enact
SORNA’s registration requirements contained in 42 U.S.C. § 16913(a). This
argument is similarly foreclosed by recent decisions of the Supreme Court and our
court. See United States v. Kebodeaux, 133 S. Ct. 2496, 2500 (2013) (concluding
that “the Necessary and Proper Clause grants Congress adequate power to enact
SORNA and to apply it” to a defendant convicted of a federal sex crime who was
subject to federal sex offender registration requirements at the time of SORNA’s
enactment in 2006); Elk Shoulder, 2013 WL 5303242, at *10 (recognizing that
applying SORNA registration requirements to a previously convicted sex offender
who was already subject to registration requirements is “‘within the scope of
Congress’ authority’” (quoting Kebodeaux, 133 S. Ct. at 2505)). SORNA’s
registration requirements were lawfully applied to Walker because he was
continuously subject to valid federal registration requirements following his release
from prison in 1999. Thus, we reject this argument as well.
3. Finally, Walker argues that SORNA’s requirement that a sex offender
update his registration “in each jurisdiction where the offender resides,” 42 U.S.C.
§ 16913(a), is unconstitutionally vague as applied to him. To survive a vagueness
challenge, a law must “give reasonable notice so that citizens subject to it may
conduct themselves accordingly.” United States v. Ocegueda, 564 F.2d 1363, 1365
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(9th Cir. 1977). To prevail, Walker must demonstrate that the provision “is
impermissibly vague in the circumstances of this case.” Id. Walker has not done
so.
Although not a model of clarity, the statute defines the term “resides” as “the
location of the individual’s home or other place where the individual habitually
lives.” 42 U.S.C. § 16911(13). The Attorney General has issued further guidance
defining “habitually lives” as “any place in which the sex offender lives for at least
30 days . . . . Jurisdictions may specify in the manner of their choosing the
application of the 30-day standard to sex offenders whose presence in the
jurisdiction is intermittent but who live in the jurisdiction for 30 days in the
aggregate over some longer period of time.” Office of the Attorney General, The
National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg.
38,030, 38,062 (July 2, 2008).
Walker was convicted for staying at the Banjo Hill home without registering
at that address. It is undisputed that Walker lived at the Banjo Hill home for more
than 30 days over the course of seven months. Moreover, Walker does not dispute
that he was required, under Montana state law, to register at that address.
Additionally, the statute of conviction, § 2250(a), requires that Walker
“knowingly” failed to register as a sex offender. See United States v. Wyatt, 408
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F.3d 1257, 1261 (9th Cir. 2005) (“A scienter requirement can help a law escape a
vagueness problem.”). In sum, we conclude that a person “of ordinary
intelligence” in Walker’s situation would have been aware of the need to register at
the Banjo Hill address. Ocegueda, 564 F.2d at 1365.
AFFIRMED.
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