                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 7, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                           FOR THE TENTH CIRCUIT




    UNITED STATES OF AMERICA,

               Plaintiff-Appellee,

    v.                                                  No. 09-8022
                                             (D.C. No. 1:08-CR-00172-WFD-1)
    KENNETH GIBSON,                                      (D. Wyo.)

               Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before HENRY, Chief Judge, BRORBY, Senior Circuit Judge, and HARTZ,
Circuit Judge.



         Defendant Kenneth Gibson appeals his conviction under 18 U.S.C. § 2250

for failing to register as a sex offender as required by the Sex Offender

Registration and Notification Act (“SORNA”). After initially pleading guilty,

Mr. Gibson moved to withdraw his plea and to dismiss the indictment based on



*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
several constitutional challenges to the charge against him. The district court

allowed withdrawal of the plea in order to consider the motion to dismiss, which

it summarily denied, citing recent circuit precedent addressing SORNA.

Mr. Gibson then entered a conditional guilty plea, reserving his right to appeal the

denial of his motion to dismiss. Following the entry of judgment, he commenced

this appeal. He concedes that “many if not all” of his challenges are foreclosed

by Tenth Circuit precedent, but “wish[es] to preserve his position by this appeal,”

Aplt. Br. at 30. We affirm, concluding that all but one of the issues raised are

indeed foreclosed by precedent and that Mr. Gibson lacks standing to assert the

one new issue raised.

      Mr. Gibson admitted the few facts material to this appeal at the hearing

when he pleaded guilty. He was convicted in Colorado of third-degree sexual

assault in 1993. He knew that he was required to register as a sex offender in any

state to which he moved. But upon moving from Colorado to Wyoming in 2008,

he knowingly failed to register as a sex offender in Wyoming.

      As relevant here, a criminal violation is made out under § 2250 when an

offender “(1) is required to register under [SORNA]”; “(2)(B) travels in interstate

. . . commerce”; and “(3) knowingly fails to register or update a registration as

required by [SORNA].” 18 U.S.C. § 2250. SORNA was enacted in July 2006,

and applies to anyone “convicted of a sex offense,” 42 U.S.C. § 16911(1),

regardless of the date of the offense, 28 C.F.R. § 72.3. See United States v.

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Hinckley, 550 F.3d 926, 929-30 (10th Cir. 2008), cert. denied, 129 S. Ct. 2383

(2009). It requires the sex offender to “register, and keep the registration current,

in each jurisdiction where the offender resides.” 42 U.S.C. § 16913(a). This

registration requirement for sex offenders was “not subject to any deferral of

effectiveness” and thus “took effect when SORNA was enacted.” Hinckley,

550 F.3d at 929. SORNA also includes various requirements for states to

incorporate into their registration procedures, 1 but states were given a three-year

grace period to implement them (on pain of reduction in federal funding),

see United States v. Gould, 568 F.3d 459, 464 & n.3 (4th Cir. 2009).

      Mr. Gibson argues that SORNA’s sex-offender registration provisions do

not apply to him and that, if they are construed to do so, they run afoul of several

constitutional prohibitions. Our precedent forecloses Mr. Gibson’s attempts to


1
      “By the time that SORNA was enacted in 2006, every State . . . had enacted
a sex offender registration law.” United States v. Gould, 568 F.3d 459, 464
(4th Cir. 2009). SORNA directs states to augment these schemes by requiring,
for example,

      that the State “maintain a jurisdiction-wide sex offender registry
      conforming to the requirements of [SORNA],” [42 U.S.C.]
      § 16912(a); “provide a criminal penalty” for a sex offender’s failure
      to register, id. § 16913(e); “make available on the Internet . . . all
      information about each sex offender in the registry,” id. § 16918(a);
      and “provide the information in the registry . . . about that offender”
      to various national and local law enforcement agencies and
      community organizations, id. § 16921(b).

Id. at 463 n.1 (second brackets added).


                                          -3-
avoid application of SORNA. That his sex offense predated SORNA does not

preclude his prosecution for the registration violation, see Hinckley, 550 F.3d at

929–30; 28 C.F.R. § 72.3, 2 particularly as the violation occurred in connection

with interstate travel following SORNA’s passage, see United States v. Husted,

545 F.3d 1240, 1244 (10th Cir. 2008). Nor is his registration violation excepted

from SORNA’s reach because Wyoming had not implemented all the

requirements specified in SORNA. It is enough for a SORNA violation that he

knowingly failed to register in Wyoming; the state’s own failure to implement

SORNA requirements may “result[] in a 10% reduction of Federal justice

assistance funding, [but] not in an excuse for an offender who has failed to

register.” Hinckley, 550 F.3d at 939 (internal quotation marks omitted).

      Mr. Gibson’s constitutional objections fare no better. He contends that his

due-process rights were violated in two respects. First, he insists that he lacked

notice that his conduct violated SORNA. But at his plea hearing he admitted that

he had knowingly failed to comply with his duty to register with the state. That is


2
      Mr. Gibson’s situation is quite similar to “Example 2” provided in § 72.3,
involving a pre-SORNA sex offender who

      initially registers as required, but . . . does not register in any other
      jurisdiction. Following the enactment of [SORNA], the sex offender
      is found to be living in another state and is arrested there. The sex
      offender has violated the requirement under [SORNA] to register in
      each state in which he resides, and could be held criminally liable
      under 18 U.S.C. 2250 for the violation because he traveled in
      interstate commerce.

                                         -4-
sufficient to satisfy due-process concerns. See Hinckley, 550 F.3d at 938

(rejecting what “amounts to an ignorance of the law argument” (internal quotation

marks omitted)); United States v. Lawrance, 548 F.3d 1329, 1338 (10th Cir.

2008). His second objection is that it is unfair to prosecute him when, he asserts,

it was impossible for him to comply with SORNA because Wyoming had not

implemented all the directives that SORNA required it to adopt. This contention

rests on the same misconception as his previous argument that Wyoming’s

registration scheme falls outside SORNA’s reach. Again, a sex offender complies

(or fails to comply) with SORNA by complying (or failing to comply) with the

duty to register as a sex offender with the state; whether the state has

implemented SORNA requirements may affect its federal funding, but not the

sex offender’s criminal liability for failing to register. Noting the same point, this

court rejected a similar impossibility-of-compliance argument in Hinckley,

550 F.3d at 939.

      Mr. Gibson contends that his conviction violates the Ex Post Facto Clause

by “[p]unishing [him] for failing to register under SORNA when he had no duty

to register.” Aplt. Br. at 24. But once he moved to Wyoming after SORNA’s

enactment, federal law required him to register in that state. He violated that

duty. See Lawrance, 548 F.3d at 1334 (SORNA was “intended as a means of

preventing sex offenders from evading their registration requirements by crossing

state lines”). He also argues that SORNA violates the Ex Post Facto Clause by

                                          -5-
increasing the punishment for his earlier sex offense. As this court has already

made clear, however, SORNA does not punish the underlying sex offense but,

rather, the offender’s subsequent registration violation following interstate travel

and, therefore, does not run afoul of the constitutional prohibition on

after-the-fact increases in punishment. See Hinckley, 550 F.3d at 936–38;

Lawrance, 548 F.3d at 1333–34.

      Mr. Gibson’s challenge to SORNA under the Commerce Clause likewise

misses the mark. He focuses his challenge on § 2250(a)(2)(A), but he was not

prosecuted under that provision. Rather, he was convicted under § 2250(a)(2)(B),

which this court has upheld as a proper exercise of federal legislative power under

the Commerce Clause: “By requiring that a sex offender travel in interstate

commerce before finding a registration violation, SORNA remains well within the

constitutional boundaries of the Commerce Clause.” Hinckley, 550 F.3d at 940.

      The one new constitutional challenge raised by Mr. Gibson is that SORNA

impermissibly burdens Wyoming, in violation of the Tenth Amendment, by

requiring it to register sex offenders before it has voluntarily implemented

SORNA by incorporating all of SORNA’s registration requirements into its own

registration scheme. But SORNA defendants lack standing to assert such claims,

which concern rights of the state, not individuals. In United States v. Parker,

362 F.3d 1279, 1284–85 & n.4 (10th Cir. 2004), we held that individuals do not

have standing to assert Tenth Amendment claims unless their interests are aligned

                                         -6-
with the state’s interests. A SORNA defendant prosecuted for violating state

sex-offender registration requirements can hardly claim his interest aligns with

that of the state whose law the federal government is enforcing. See United

States v. Hacker, 565 F.3d 522, 527 (8th Cir. 2009).

      The judgment of the district court is AFFIRMED.


                                      Entered for the Court



                                      Harris L Hartz
                                      Circuit Judge




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