                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0253n.06
                             Filed: April 2, 2009

                                           No. 08-5537

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
TANZ REINALDO SAMUELS,                           )    EASTERN DISTRICT OF KENTUCKY
                                                 )
       Defendant-Appellant.                      )




       Before: MARTIN and COOK, Circuit Judges; and WATSON, District Judge.*


       MICHAEL H. WATSON, District Judge. Tanz Reinaldo Samuels was convicted in New

York of second degree rape in December 1999. Based on that conviction, New York law in effect

at the time required that he be designated as a sex offender and register as a sex offender for ten

years. In December 2006, Samuels moved to Kentucky, but at no time did he register as a sex

offender in Kentucky or notify New York of his move. The Sex Offender Registration and

Notification Act (“SORNA”) required that he register. See 42 U.S.C. § 16913.


       In September 2007, Samuels was indicted on one count of violating 18 U.S.C. § 2250(a), for

knowingly failing to register and update a registration as a sex offender. Samuels filed a Motion to

       *
        The Honorable Michael H. Watson, United States District Judge for the Southern District
of Ohio, sitting by designation.
No. 08-5537
U.S. v. Samuels

Dismiss the Indictment which was denied by the district court. Samuels pleaded guilty to the

Indictment. For the reasons that follow, we affirm.


                                          I. Background


       On December 22, 1999, Samuels was convicted of second degree rape in New York state.

He received a sentence of four months imprisonment, followed by five years probation. Based on

the conviction, New York law designated Samuels as a sex offender and required that he register and

accurately update his registration for ten years. Samuels was also required to notify the local law

enforcement agency and New York authorities of any change to his home address within ten days

of said change. Samuels was further notified that, if he moved to another state, he might be required

to register as a sex offender in that state. Samuels registered in New York as a sex offender on

December 22, 1999.


       In December 2006, Samuels moved to Boone County, Kentucky. He failed to register as a

sex offender in Kentucky or notify New York authorities of his new address.


       On September 13, 2007, the federal grand jury in the Eastern District of Kentucky indicted

Samuels on one count of violating 18 U.S.C. § 2250(a), for knowingly failing to register and update

a registration as a sex offender, from on or about February 2007 and continuing through on or about

August 27, 2007. On October 11, 2007, Samuels filed a Motion to Dismiss the Indictment. After

briefing and argument by counsel, the district court denied Samuels’s Motion to Dismiss the

Indictment.

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       On April 28, 2008, Samuels entered into a plea agreement pursuant to which he pleaded

guilty but reserved the right to appeal the district court’s denial of his Motion to Dismiss the

Indictment. The same day, the district court sentenced Samuels to 12 months and one day in prison

and placed him on supervised release for a term of life.


       Samuels now appeals.


                                            II. Analysis


       A.      Standard of Review


       In United States v. Grenier, 513 F.3d 632 (6th Cir. 2008), the court discussed the standard

of review to apply for a motion to dismiss an indictment.


       The standard of review to be applied for a motion to dismiss an indictment is
       somewhat unclear. United States v. Titterington, 374 F.3d 453, 456 (6th Cir. 2004).
       When reviewing a district court’s disposition of a motion to dismiss an indictment
       based on findings of fact, we have generally applied either an abuse of discretion
       standard or a clear error standard. United States v. Butler, 297 F.3d 505, 512 (6th Cir.
       2002) (reviewing a motion to dismiss based on a factual determination for clear
       error); United States v. Suarez, 263 F.3d 468, 476 (6th Cir. 2001) (noting that the
       court has used both a clear error and an abuse of discretion standard to evaluate the
       dismissal of indictments based on findings of prosecutorial vindictiveness). When
       reviewing the district court’s legal conclusions in the motion to dismiss context, we
       have generally undertaken de novo review. United States v. Philp, 460 F.3d 729, 732
       (6th Cir. 2006) (reviewing de novo denial of motion to dismiss on legal grounds);
       United States v. Martinez-Rocha, 337 F.3d 566, 569 (6th Cir. 2003) (noting that the
       Sixth Circuit reviews a denial of a motion to dismiss involving questions of law de




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       novo); United States v. Ford, 987 F.2d 334, 339 (6th Cir. 1992) (reviewing de novo
       denial of a motion to dismiss on the ground of double jeopardy).


Id. at 635–36.


       As Samuels challenges the legal conclusions of the district court, our review is de novo.


       B.        Statutory Provisions


       On July 27, 2006, President Bush signed into law Title I of the Adam Walsh Child Protection

and Safety Act of 2006, which included SORNA. Congress’s stated purpose in establishing a

comprehensive national system for registration of sex offenders was “to protect the public from sex

offenders and offenders against children, and in response to the vicious attacks by violent predators.”

42 U.S.C.A. § 16901.


       SORNA imposes registration requirements on sex offenders who are subject to federal

jurisdiction and imposes criminal liability for the failure to register as a sex offender. The

registration requirements are as follows:


       (a)       In general
                 A sex offender shall register, and keep registration current, in each
                 jurisdiction where the offender resides, where the offender is an employee,
                 and where the offender is a student. For initial registration purposes only, a
                 sex offender shall also register in the jurisdiction in which convicted if such
                 jurisdiction is different from the jurisdiction of residence.




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       (b)     Initial registration
               The sex offender shall initially register–
               (1)     before completing a sentence of imprisonment with respect to the
                       offense giving rise to the registration requirement; or
               (2)     not later than 3 business days after being sentenced for that offense,
                       if the sex offender is not sentenced to a term of imprisonment.


       (c)     Keeping the registration current
               A sex offender shall, not later than 3 business days after each change of
               name, residence, employment, or student status, appear in person in at least
               1 jurisdiction involved pursuant to subsection (a) of this section and inform
               that jurisdiction of all changes in the information required for that offender
               in the sex offender registry. That jurisdiction shall immediately provide that
               information to all other jurisdictions in which the offender is required to
               register.


       (d)     Initial registration of sex offenders unable to comply with subsection (b) of
               this section
               The Attorney General shall have the authority to specify the applicability of
               the requirements of this subchapter to sex offenders convicted before July 27,
               2006 or its implementation in a particular jurisdiction, and to prescribe rules
               for the registration of any such sex offenders and for other categories of sex
               offenders who are unable to comply with subsection (b) of this section.


42 U.S.C. § 16913.


       On February 28, 2007, pursuant to its statutory directive to specify the applicability of

SORNA to sex offenders convicted before July 27, 2006, and who were unable to comply with the

initial registration requirements of 42 U.S.C. § 16913(b), the Department of Justice promulgated an




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interim rule declaring SORNA retroactive to sex offenders convicted prior to SORNAs enactment.

72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. § 72 (2007)) (“Interim Rule”).


       Failing to register as a sex offender subjects a defendant to liability pursuant to 18 U.S.C.

§ 2250(a), which provides:


       Whoever–


              (1)      is required to register under [SORNA];
              (2)      (A)    is a sex offender as defined for purposes of [SORNA] by
                              reason of a conviction under Federal law (including the
                              Uniform Code of Military Justice), the law of the District of
                              Columbia, Indian tribal law, or the law of any territory or
                              possession of the United States, or
                       (B)    travels in interstate or foreign commerce, or enters or leaves,
                              or resides in, Indian country; and
              (3)      knowingly fails to register or update a registration as required by
                       [SORNA]


              shall be fined under this title or imprisoned not more than 10 years or both.


18 U.S.C. § 2250(a).


              Accordingly, the essential elements for a § 2250(a) offense are that a defendant:


              (1)      was a sex offender as defined under SORNA and, therefore, required
                       to register under SORNA;
              (2)      traveled in interstate commerce; and



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               (3)     knowingly failed to register or update a registration as required by
                       SORNA.


       C.      Due Process


       Samuels first argues that the district court erred in holding that SORNA did not violate his

due process rights. He maintains he was never notified of SORNA’s registration requirements. He

asserts that his documentation from New York, while clearly stating he was to register as a sex

offender in New York, was devoid of any requirement to register under SORNA. Further, Samuels

asserts that while Kentucky law also requires he register as a sex offender, at the time he moved to

Kentucky, Kentucky law was silent as to his requirement to register under SORNA. As such,

Samuels contends he was unaware of his duty to register under SORNA.


       The district court did not err in concluding that Samuels’s due process rights were not

violated. Samuels was aware of his duty to update his registration in New York. Additionally he

received notice that, if he moved to another state, he might be required to register as a sex offender

in that state. Further, notwithstanding the fact Kentucky law was silent as to the requirement to

register under SORNA, Defendant concedes Kentucky law mandated he register as a sex offender

in Kentucky, which he failed to do. Notwithstanding his failure to register, Samuels’s prior

knowledge of his duty to register under state law qualified as effective notice under SORNA.

Accordingly, Samuels’s due process argument is without merit.




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       D.      Application of SORNA to Samuels


       Samuels next argues the district court erred in concluding SORNA applied to him.

Specifically, he contends SORNA does not apply to sex offenders, like himself, who traveled in

interstate commerce between the enactment of SORNA and February 27, 2007, the date the Interim

Rule was promulgated.


       SORNA applies to Samuels regardless of the fact he traveled in interstate commerce before

promulgation of the Interim Rule. “The bulk of [SORNA] does not make a distinction between

those convicted before the Act and those convicted after. It imposes its requirements on ‘sex

offenders,’ without qualification.” United States v. May, 535 F.3d 912, 917 (8th Cir. 2008) (citing

United States v. Roberts, No. 6:07-CR-70031, 2007 U.S. Dist. LEXIS 54646, 2007 WL 2155750

(W.D. Va. July 27, 2007)). Furthermore, “42 U.S.C. § 16913(d) only applies to initial registration.

This construction makes sense when one considers that a sex offender convicted before July 27,

2006, would, in many cases, be unable to comply with the initial registration requirements of

SORNA because the time limits for initial registration would have already passed when SORNA was

enacted.” May, 535 F.3d at 918 (citing United States v. Beasley, No. 1:07-CR-115-TCB, 2007 U.S.

Dist. LEXIS 85793, 2007 WL 3489999 (N.D. Ga. Oct. 10, 2007) (internal citation omitted)).


       Moreover, the cases upon which Samuels relies are inapposite. In United States v. Kapp, 487

F. Supp. 2d 536 (M.D. Pa. 2007) and United States v. Smith, 528 F. Supp. 2d 615 (S.D. W.Va.

2007), the defendants allegedly failed to register or update a registration prior to February 28, 2007.


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In United States v. Deese, No. CR-07-167-L, 2007 U.S. Dist. LEXIS 70677, 2007 WL 2778362

(W.D. Okla. Sept. 21, 2007) and United States v. Sallee, No. CR-07-152-L, 2007 U.S. Dist. LEXIS

68350, 2007 WL 3283739 (W.D. Okla. Aug. 13, 2007), while the alleged failure to register or update

a registration occurred both before and after February 28, 2007, the defendants’ respective travel

occurred before SORNA’s enactment. To the contrary, Samuels’s interstate travel occurred after

SORNA’s enactment and the Indictment charges him with failing to register or update a registration

for time periods after February 28, 2007. Accordingly, SORNA applies to Samuels and he was

properly charged in the Indictment.


       E.      Ex Post Facto Clause


       Samuels’s third argument is that the district court erred in holding that SORNA does not

violate the Ex Post Facto Clause. “[I]t has long been recognized . . . that the constitutional

prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender

affected by them.” Collins v. Youngblood, 497 U.S. 37, 41 (1990) (citations omitted). In Smith v.

Doe, 538 U.S. 84 (2003), the Supreme Court discussed the framework to determine whether a statute

violates the Ex Post Facto Clause.


       We must “ascertain whether the legislature meant the statute to establish ‘civil’
       proceedings.” Kansas v. Hendricks, 521 U.S. 346, 361 (1997). If the intention of the
       legislature was to impose punishment, that ends the inquiry. If, however, the
       intention was to enact a regulatory scheme that is civil and nonpunitive, we must
       further examine whether the statutory scheme is “so punitive either in purpose or
       effect as to negate [the State’s] intention ‘to deem it’ civil.” Ibid. (quoting United
       States v. Ward, 448 U.S. 242, 248-249 (1980)). Because we “ordinarily defer to the
       legislature’s stated intent,” Hendricks, supra, at 361, “‘only the clearest proof’ will

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        suffice to override legislative intent and transform what has been denominated a civil
        remedy into a criminal penalty.” Hudson v. United States, 522 U.S. 93, 100 (1997)
        (quoting Ward, supra, at 249); see also Hendricks, supra, at 361; United States v.
        Ursery, 518 U.S. 267, 290 (1996); United States v. One Assortment of 89 Firearms,
        465 U.S. 354, 365 (1984).


Id. at 92 (parallel citations omitted).


        The Eighth Circuit previously examined the issue of whether Congress intended SORNA to

impose punishment for a pre-existing crime in May. In concluding SORNA does not violate the Ex

Post Facto Clause, the May court reasoned:


        SORNA’s registration requirement demonstrates no congressional intent to punish
        sex offenders. . . . Even though Congress’s intent “was to enact a regulatory scheme
        that is civil and nonpunitive,” we must look further to see if the statutory scheme is
        so punitive that it negates Congress’s intention to deem the act civil. See Smith, 538
        U.S. at 92. . . . The only punishment that can arise under SORNA comes from a
        violation of § 2250, which punishes convicted sex offenders who travel in interstate
        commerce after the enactment of SORNA and who fail to register as required by
        SORNA. Congress clearly intended SORNA to apply to persons convicted before the
        Act’s passage. . . . If SORNA did not apply to previously convicted sex offenders,
        SORNA would not serve Congress’s stated purpose of establishing a “comprehensive
        national system” for sex offender registration. Section 16901. . . . Section 2250
        punishes an individual for traveling in interstate commerce and failing to register.
        The statute does not punish an individual for previously being convicted of a sex
        crime.


May, 535 F.3d at 919.


        The May court’s reasoning is sound and we adopt it. Samuels traveled in interstate

commerce after the enactment of SORNA and failed to update his registration in New York and to

register in Kentucky after February 27, 2008. It is this behavior that is being punished. Samuels is

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not being punished for his initial 1999 rape conviction. Accordingly, Samuels’s argument is without

merit.


                                         III. Conclusion


         For these reasons, we affirm.




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