                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 08-2265
      ___________

United States of America,               *
                                        *
             Plaintiff – Appellee,      *
                                        *
      v.                                *
                                        *
Kenneth Dean Hulen,                     *
                                        *
            Defendant – Appellant.      *

      ___________
                                            Appeals from the United States
      No. 08-2379                           District Court for the
      ___________                           Western District of Arkansas.

                                            [UNPUBLISHED]
United States of America,                *
                                         *
              Plaintiff – Appellee,      *
                                         *
       v.                                *
                                         *
Jovel Isaias Torres, also known as       *
Marlos Reyes,                            *
                                         *
             Defendant – Appellant.      *
                                    ___________

                             Submitted: January 13, 2009
                                Filed: January 27, 2009
                                 ___________
Before MURPHY and SMITH, Circuit Judges, and KAYS,1 District Judge.
                            ___________

PER CURIAM.

       Kenneth Dean Hulen and Jovel Isaias Torres were convicted of failing to
register as sex offenders as required by the Sex Offender Registration and Notification
Act (SORNA). 18 U.S.C. § 2250. They appeal from the denial of their motions to
dismiss their indictments, arguing that the government lacked evidence that they
traveled in interstate commerce after SORNA was enacted. They also argue that
SORNA violates the ex post facto clause, the nondelegation doctrine, and due process.

       SORNA created a federal sex offender registry and requires sex offenders who
have been convicted under federal law or who travel in interstate commerce to update
their required registration. 18 U.S.C. § 2250(a). Hulen and Torres had both been
convicted of sex offenses under state law: Hulen in Iowa and Torres in Maryland.
Both were later discovered in other states and so their travel in interstate commerce
at some time might be presumed. Neither had updated his registration, and they were
charged with violating SORNA.

       Hulen and Torres moved to dismiss their indictments on the ground that pretrial
discovery from the government disclosed no evidence that either of them had traveled
in interstate commerce after the effective date of the statute. The district court denied
the motions, and both men entered conditional guilty pleas. The district court
sentenced Torres to 30 months imprisonment. Hulen was sentenced to 15 months and
has already completed his term of imprisonment.




      1
      The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri, sitting by designation.

                                          -2-
       We review de novo the denial of a motion to dismiss the indictment. United
States v. Howell, 531 F.3d 621 (8th Cir. 2008). SORNA was enacted July 27, 2006,
and we subsequently decided that § 2250(a) "punishes [only] convicted sex offenders
who travel in interstate commerce after the enactment of SORNA and who fail to
register as required by SORNA." United States v. May, 535 F.3d 912, 920 (8th Cir.
2008) (emphasis added). It is undisputed that Hulen's last interstate travel predated
the passage of SORNA. The government also states on appeal that Torres's last
interstate travel "cannot be established with certainty."

       The government concedes that "pre-SORNA interstate travel cannot violate
SORNA" and that it did not have evidence that either defendant had traveled interstate
after the effective date of the statute. The Criminal Division of the Department of
Justice has instructed the prosecution to concede this issue on appeal. For these
reasons, we reverse the order of the district court and remand for further proceedings
consistent with this opinion.
                        ______________________________




                                         -3-
