                                                                           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                           NOT FOR PUBLICATION                              JAN 10 2014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


                                         -3-
(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


                                           -4-
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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