United States v. Thompson

Not for Publication in West's Federal Reporter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
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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.
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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.
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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
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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.
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