                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 27 2014

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 09-30326

               Plaintiff - Appellee,              D.C. No. 2:08-cr-06086-RHW

  v.
                                                  MEMORANDUM*
LESTER THOMAS EALY, Sr., a.k.a.
Lester Thomas Ealy,

               Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Eastern District of Washington
                    Robert H. Whaley, District Judge, Presiding

                              Submitted June 25, 2014**

Before:        HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.

       Lester Thomas Ealy, Sr., appeals from the district court’s judgment imposed

following his guilty-plea conviction for failing to register as a sex offender under




          *
             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).
the Sex Offender Registration and Notification Act (“SORNA”), in violation of 18

U.S.C. § 2250(a). Ealy challenges the district court’s denial of his motion to

dismiss the indictment. We have jurisdiction under 28 U.S.C. § 1291. We review

do novo, see United States v. Cabrera-Gutierrez, No. 12-30233, 2014 WL 998173,

at *2 (9th Cir. Mar. 17, 2014), and we affirm.

      Ealy contends that the district court should have dismissed the indictment

because SORNA did not require him to register in Washington until Washington

had implemented a SORNA-compliant registry. He argues that a contrary

interpretation of SORNA raises constitutional concerns under the Commerce and

Ex Post Facto Clauses. Ealy’s argument is foreclosed by recent cases of this court.

See id. at *3-4 (Congress had the power under the Commerce Clause to enact

SORNA); United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9th Cir. 2013),

cert. denied, 134 S. Ct. 1920 (2014) (rejecting ex post facto challenge to SORNA);

United States v. Elkins, 683 F.3d 1039, 1046 (9th Cir. 2012) (“[T]he 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.”).

      Ealy next argues that even if SORNA required him to register, it only

required him to comply with Washington law. He further contends that, because

Washington law did not require him to register, he would not have been permitted


                                          2                                      09-30326
to do so and thus, compliance with SORNA was impossible. This argument fails

because Ealy could have complied with SORNA by registering with the State of

Washington. See Elk Shoulder, 738 F.3d at 955 (“Because Elk Shoulder could

have registered with the State of Montana’s registry, and because this would have

allowed him to register ‘as required by’ SORNA, it was not impossible for Elk

Shoulder to meet the requirements of § 2250(a).”). Moreover, the record supports

the district court’s finding that Ealy would have been permitted to register had he

attempted to do so, and thus, he could have complied with SORNA.

      AFFIRMED.




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