SORNA Case Summaries
The following case list is current as of July 20, 2008. The list is in reverse chronological order. If you see any cases that I have missed, please email me and I'll add them. The list attempts to cover all SORNA-related opinions that involved constitutional challenges to the Act. I have intentionally omitted opinions that only had limited statutory issues or were sentencing reasonableness opinions. I've used LEXIS cites for most of the opinions (sorry Westlaw users) and I've been a bit sloppy with my Bluebooking. The following key should explain all of the abbreviations used in the opinion descriptions.
Key
• ND – Non-Delegation Doctrine or Administration Procedure Act Argument
• CC – Commerce Clause or Tenth Amendment Argument
• XPF – Ex Post Facto Clause or Other Retroactivity Argument
• SDP – Substantive DP Argument
• PDP – Procedural DP Argument
• SO – Argument about Sex Offender classification
• (D) – Defendant won argument
• (G) – Government won argument
• (N) – Argument was Not decided
• Gap Period – time period between SORNA enactment and Attorney General decision to apply Act retroactively
Circuit Court Opinions
• United States v. Byun, 2008 U.S. App. LEXIS 13846 (9th Cir. 2008) – SO (G); Court found that a non-categorical approach should be taken to determine if the underlying crime made a person a sex offender.
• United States v. Madera, 2008 U.S. App. LEXIS 11078 (11th Cir. 2008) – ND (N), CC (N), XPF (D), SDP (N), PDP (N); Court held that SORNA provisions couldn’t apply retroactively during the gap period.
• United States v. Jorge-Salgado, 520 F.3d 840 (8th Cir. 2008) – XPF (G), SO (G); Court did not find abuse of discretion by district court that made sex offender status a condition of supervised release.
District Court Opinions
• United States v. Waybright, Not Currently Available on Lexis (D. Mont. 2008), available at: http://sentencing.typepad.com/sentencing_law_and_policy/files/
waybright_awa_ruling.pdf; CC (D), SDP (G), ND (G), PDP (G); Court held that 16913, but not 2250(a) had no jurisdictional limitation and ran afoul of the CC.
• United States v. Fuller, 2008 U.S. Dist. LEXIS 46950 (N.D.N.Y. 2008) – XPF (G), PDP (G)
• United States v. Tong, 2008 U.S. Dist. LEXIS 41589 (E.D. Ok. 2008) – ND (G), CC (G), XPF (G), PDP (G)
• United States v. Cochran, 2008 U.S. Dist. LEXIS 41588 (E.D. Ok. 2008) – ND (G), CC (G), XPF (G), PDP (G)
• United States v. David, 2008 U.S. Dist. LEXIS 38613 (W.D.N.C. 2008) – CC (G), PDP (G); Court rejected the Commerce Clause challenge by finding that SORNA fit in Lopez Category 2.
• United States v. Ditomasso, 2008 U.S. Dist. LEXIS 37870 (D. R.I. 2008) – CC (G), XPF (G), PDP (G); Court rejected the Commerce Clause challenge by finding that SORNA fit in Lopez Category 2, but left open the possibility that SORNA might also fit under Lopez Category 3.
• United States v. Mason, 2008 U.S. Dist. LEXIS 33850 (M.D. Fla. 2008) – CC(G); Court rejected motion for reconsideration based upon ruling in United States v. Powers by finding that SORNA fit in Lopez Category 2 and finding the jurisdictional limitation of SORNA to be sufficient.
• United States v. Craft, 2008 U.S. Dist. LEXIS 33860 (D. Neb. 2008) – CC (G), PDP (G); Court rejected defendant’s Commerce Clause argument because defendant only argued that SORNA did not fit in Lopez Category 3, but didn’t make a showing for the first two categories.
• United States v. Powers, 544 F.Supp.2d 1331 (M.D. Fla. 2008) – CC (D); Court found that SORNA was inconsistent with Lopez and Morrison.
• United States v. Holt, 2008 U.S. Dist. LEXIS 31523 (S.D. Ia.) – PDP (G), CC (G).
• United States v. Gillette, 2008 U.S. Dist. LEXIS 28775 (D. V.I.) – XPF (D); Court found an Ex Post Facto Clause violation and distinguished U.S.S.C. holding in Smith by noting that Smith only concerned listing on the registry not punishment for failure to register. Travel was before SORNA enactment.
• United States v. Akers, 2008 U.S. Dist. LEXIS 30271 (N.D. Ind. 2008) – ND (G), CC (G), XPF (G), PDP (G).
• United States v. Villagomez, 2008 U.S. Dist. LEXIS 26814 (W.D. Ok. 2008) – XPF (G), PDP (G).
• United States v. Cardenas, 2008 U.S. Dist. LEXIS 31340 (S.D. Fla. 2008) – XPF (G).
• United States v. Pitts, 2008 U.S. Dist. LEXIS 11071 (M.D. La. 2008) – XPF (G), PDP (G).
• United States v. Aldrich, 2008 U.S. Dist. LEXIS 11411 (D. Neb. 2008) – XPF (D); PDP (D); Court found that SORNA constituted punishment for past conduct before SORNA enactment and that the defendant should have been given notice of duty to comply with the statute.
• United States v. Utesch, 2008 U.S. Dist. LEXIS 40498 (E.D. Tenn. 2008) – ND (G), XPF (G), CC (G), PDP (G).
• United States v. Thomas, 534 F. Supp. 2d 912 (N.D. Ia. 2008) – CC (G); Government only argued that SORNA fits under Lopez Category 2 and Court agreed with government’s analysis on that issue. The Court found that 16913 did violate the Commerce Clause, but the Necessary and Proper Clause supported 16913’s constitutionality.
• United States v. Kent, 2008 U.S. Dist. LEXIS 10044 (S.D. Al. 2008) – XPF (D); Court rejected government’s positions that XPF claims should be made as to SORNA as a whole instead of 2250 specifically, Smith opinion controlled, 2250 was not retrospective, and 2250 was not punitive. The court also interpreted the statute to require interstate travel be after the passage of the Act because of the verb tense for “travels.”
• United States v. Hester, 2008 U.S. Dist. LEXIS 9231 (N.D.N.Y. 2008) – PDP (G).
• United States v. Hacker, 2008 U.S. Dist. LEXIS 7793 (D. Neb. 2008) – ND (G), CC (G).
• United States v. Howell, 2008 U.S. Dist. LEXIS 7810 (N.D. Ia. 2008) – ND (G), CC (G); PDP (G), XPF (D); Court rejected the government’s contention that Smith controlled XPF claim because Smith only concerned the inclusion on a registry listing. The Court also interpreted “travels” to require future interstate travel after SORNA’s passage. Prior magistrate opinion available at United States v. Howell, 2007 U.S. Dist. LEXIS 83224 (N.D. Ia. 2007).
• United States v. Davis, 2008 U.S. Dist. LEXIS 17112 (W.D. La. 2008) – XPF (D); Court found XPF violation during gap period.
• United States v. Samuels, 543 F. Supp. 2d 669 (E.D. Ky. 2008) – PDP (G), XPF (G), ND (G).
• United States v. LeTourneau, 534 F. Supp. 2d 718 (S.D. Tx. 2008) – XPF (G), PDP (G), ND (G).
• United States v. Baccam, 2008 U.S. Dist. LEXIS 5451 (W.D. Ark. 2008) – XPF (G), PDP (G).
• United States v. Terwilliger, 2008 U.S. Dist. 375 (S.D. Ca. 2008) – XPF (D) – the court found that SORNA did not apply to defendant during the “gap period” thereby rejecting application of the statute on statutory grounds. However, the court also found an Ex Post Facto Clause violation because the interstate travel was before the AG’s retroactivity statement.
• United States v. Dixon, 2007 U.S. Dist. LEXIS 94257 (N.D. Ind. 2007) – XPF (G), ND (G), PDP (G), CC (G); Court rejected XPF claim (also statutory construction claim) even though defendant travelled before the passage of SORNA because failing to register is a continuous act.
• United States v. Aldrich, 2007 U.S. Dist. LEXIS 96455 (D. Neb. 2007) – XPF (G), CC (G), ND (G); Court rejected XPF claim during gap period.
• United States v. Gould, 526 F. Supp. 2d 538 (D. Md. 2007) – XPF (G), PDP (G), ND (G), CC (G).
• United States v. Brown, 2007 U.S. Dist. LEXIS 91328 (S.D.N.Y. 2007) – CC (G), PDP (G); Court found that SORNA could be justified under 2nd and 3rd Lopez categories.
• United States v. Elliot, 2007 U.S. Dist. LEXIS 91655 (S.D. Fla. 2007) – CC (G), XPF (G), ND (G), PDP (G); Court rejected CC argument by finding that SORNA fit under 2nd Lopez category. The Court further found that Smith didn’t control the XPF argument, but there was no retroactive application during the gap period.
• United States v. Bonner, 2007 U.S. Dist. LEXIS 92248 (S.D. Ala. 2007) – XPF (D); Court found that the government was required to show that interstate travel occurred after the passage of SORNA and it failed to do so. The Court found that Congress’ intent with SORNA was clearly punitive and didn’t need to evaluate whether the statute was punitive in effect.
• United States v. Adkins, 2007 U.S. Dist. LEXIS 90737 (N.D. Ind. 2007) – XPF (G), PDP (G), CC (G).
• United States v. Rich, 2007 U.S. Dist. LEXIS 89609 (W.D. Mo. 2007) – XPF (D); the court only found for the defendant on the statutory question of whether SORNA requires “travel” after the statute was enacted. The court did not consider any constitutional arguments.
• United States v. Patterson, 2007 U.S. Dist. LEXIS 83191 (D. Neb. 2007) – XPF (D); the Court found that the statute violated the Ex Post Facto Clause by punishing conduct during the gap period.
• United States v. Pitts, 2007 U.S. Dist. LEXIS 82632 (M.D. La. 2007) – XPF (G), CC (G), PDP (G), ND (G), SDP (G).
• United States v. Cardenas, 2007 U.S. Dist. LEXIS 88803 (S.D. Fla. 2007) – CC (G), XPF (G), ND (G), PDP (G), SDP (G); the Court rejected the CC challenge by finding that SORNA fit in the 2nd Lopez category.
• United States v. Carr, 2007 U.S. Dist. LEXIS 81700 (N.D. Ind. 2007) – XPF (G); Court rejected XPF claim because Smith controlled and because failing to register was a continuing act even if travel was before SORNA was enacted.
• United States v. Rich, 2007 U.S. Dist. LEXIS 91131 (W.D. Mo. 2007) – XPF (D); Court was persuaded by XPF claim during the gap period and found that “travels” required travel after the passage of the Act.
• Levine v. Pennsylvania State Police, 2007 U.S. Dist. LEXIS 76679 (M.D. Pa. 2007) – CC(G), XPF (G), SDP (G); in response to a civil suit against SORNA, the Court rejected all of the plaintiff’s claims in addition to Equal Protection and Freedom to Associate arguments.
• United States v. Wilson, 2007 U.S. Dist. LEXIS 76722 (D. Utah 2007) – XPF (D); Court concluded that Smith did not control.
• United States v. Gill, 2007 U.S. Dist. LEXIS 76446 (D. Utah 2007) – XPF (D); Court rejected XPF constitutional argument by holding Smith controls, but found for the defendant because the statute did not apply during the gap period.
• United States v. Ambert, 2007 U.S. Dist. LEXIS 75384 (N.D. Fla. 2007) – PDP (G), SDP (G), CC (G), XPF (G), ND (G).
• United States v. Beasley, 2007 U.S. Dist. LEXIS 85793 (N.D. Ga. 2007) – XPF (G), CC (G), ND (G), PDP (G), SDP (G); while the court found that Smith didn’t control the XPF analysis, the court found no violation during the gap period. The Court rejected the CC challenge by finding that SORNA fit in the 2nd Lopez category.
• United States v. Lovejoy, 2007 U.S. Dist. LEXIS 72988 (D. N.D. 2007) – ND (G), PDP (G), XPF (G), CC (G).
• United States v. May, 2007 U.S. Dist. LEXIS 70709 (S.D. Ia. 2007) – XPF (G), ND (G), PDP (G), CC (G); Court rejected XPF claim during the gap period.
• United States v. Deese, 2007 U.S. Dist. LEXIS 70677 (W.D. Ok. 2007) – XPF (D); the Court found that a defendant who travelled and failed to register before SORNA enactment could not be prosecuted without running afoul of the Ex Post Facto Clause.
• United States v. Kent, 2007 U.S. Dist. LEXIS 69819 (S.D. Ala. 2007) – PDP (G), XPF (G); Court rejected the Ex Post Facto claim even though it found 2250(a) to be punitive. The Court found that it was unclear if the defendant travelled between states after SORNA was enacted so it couldn’t assess the XPF claim.
• United States v. Cole, 2007 U.S. Dist. LEXIS 68522 (S.D. Il. 2007) – XPF (D); Court found for defendant on XPF claim during the gap period.
• United States v. Stinson, 507 F. Supp. 2d 560 (S.D. W.V. 2007) – XPF (D); Court found the XPF argument persuasive because the defendant travelled and failed to register before SORNA was enacted.
• United States v. Dillenbeck, 2007 U.S. Dist. LEXIS 66896 (D. S.C. 2007) –XPF (D); Court found that SORNA did not apply during the gap period.
• United States v. Mitchell, 2007 U.S. Dist. LEXIS 66114 (W.D. Ark. 2007) – XPF (G), PDP (G); Court rejected XPF claim during the gap period.
• United States v. Lawrance, 2007 U.S. Dist. LEXIS 75518 (W.D. Ok. 2007) – XPF (G), CC (G), DP (G).
• United States v. Kelton, 2007 U.S. Dist. LEXIS 65430 (M.D. Fla. 2007) – ND (G), CC (G), XPF (G), PDP (G), SDP (G).
• United States v. Buxton, 2007 U.S. Dist. LEXIS 76142 (W.D. Ok. 2007) – PDP (G), XPF (G) CC (G).
• United States v. Bennett, 2007 U.S. Dist. LEXIS 63152 (W.D. Ark. 2007) – XPF (G), PDP (G).
• United States v. Torres, 2007 U.S. Dist. LEXIS 60119 (W.D. Ark. 2007) – XPF (G), PDP (G).
• United States v. Hulen, 2007 U.S. Dist. LEXIS 60113 (W.D. Ark. 2007) – XPF (G), PDP (G).
• United States v. Sawn, 2007 U.S. Dist. LEXIS 59382 (W.D. Va. 2007) – ND (G), PDP (G), XPF (G), CC (G).
• United States v. Sallee, 2007 U.S. Dist. LEXIS 68350 (W.D. Ok. 2007) – XPF (D); Court concludes that statute cannot be construed to apply to pre-enactment travel without violating the Ex Post Facto Clause.
• United States v. Gonzales, 2007 U.S. Dist. LEXIS 58035 (N.D. Fla. 2007) – SDP (G), CC (G), XPF (G), PDP (G), ND (G); Court rejected CC argument by finding SORNA fit under 2nd Lopez category.
• United States v. Marcantonio, 2007 U.S. Dist. LEXIS 55645 (W.D. Ark. 2007) – XPF (G), PDP (G); Court rejected XPF claim for acts alleged during the gap period.
• United States v. Heriot, 2007 U.S. Dist. LEXIS 54807 (D. S.C. 2007) – Court did not address the constitutional claims because it dismissed the indictment on statutory grounds.
• United States v. Roberts, 2007 U.S. Dist. LEXIS 54646 (W.D. Va. 2007) – ND (G), PDP (G).
• United States v. Muzio, 2007 U.S. Dist. LEXIS 54330 (E.D. Mo. 2007) – XPF (D), CC (G); Court found the statutory language did not apply to Muzio due to conduct during gap period and found Ex Post Facto Clause problem with A.G.’s statement on retroactivity. Original magistrate recommendation can be found below at United States v. Muzio, 2007 U.S. Dist. LEXIS 40294.
• United States v. Barnes, 2007 U.S. Dist. LEXIS 53245 (S.D.N.Y. 2007) – PDP (D); Court found state registration requirements did not give notice to D of SORNA requirements.
• United States v. Lang, 2007 U.S. Dist. LEXIS 56655 (W.D. Ok. 2007) – XPF (G), CC (G); Court only briefly considered constitutional arguments before granting defendant’s motion for a new trial because of improper statements by the prosecutor in the closing argument. The prior review of the constitutional issues is below at United States v. Lang, 2007 U.S. Dist. LEXIS 56642 (W.D. Ok. 2007).
• United States v. Husted, 2007 U.S. Dist. LEXIS 56662 (W.D. Ok. 2007) – CC (G), XPF (G); Court found that SORNA allows prosecution of offenders who travelled between states any time before the passage of the Act. The Court found 2250(a) to be clearly punitive, but found the Act was not retrospective because the crime was a continuing act of failing to register.
• United States v. Marvin Smith, 2007 U.S. Dist. LEXIS 43040 (S.D. W.V. 2007) – XPF (D); Court held that SORNA didn’t apply to offender during the gap period.
• United States v. Lang, 2007 U.S. Dist. LEXIS 56642 (W.D. Ok. 2007) – XPF (G), CC (G).
• United States v. Muzio, 2007 U.S. Dist. LEXIS 40294 (E.D. Mo. 2007) – XPF (G), CC (G); Court found SORNA fit under 2nd Lopez category.
• United States v. Mason, 2007 U.S. Dist. LEXIS 37122 (M.D. Fla. 2007) – ND (G), XPF (G), PDP (G), CC (G); Court concluded that SORNA fit under the 2nd Lopez category.
• United States v. Kapp, 2007 U.S. Dist. LEXIS 38849 (M.D. Pa. 2007) – XPF (D); Court did not consider constitutional claims, but found that SORNA didn’t apply during the gap period.
• United States v. Hinen, 487 F. Supp. 2d 747 (W.D. Va. 2007) – ND (G), PDP (G), CC (G), XPF (G); Court found SORNA fit into the second Lopez category.
• United States v. Markel, 2007 U.S. Dist. LEXIS 27102 (W.D. Ark. 2007) – XPF (G), PDP (G).
• United States v. Bobby Smith, 481 F. Supp. 2d 846 (E.D. Mich. 2007) – XPF (D); Court held that statutory construction meant that “travels” is forward looking language so the Act only applied to persons who travel interstate after the effective date of the statute and the registration requirement’s retroactive application violated the Ex Post Facto Clause.
• United States v. Manning, 2007 U.S. Dist. LEXIS 12932 (W.D. Ark. 2007) – XPF (G), PDP (G); Court held there was no Ex Post Facto Clause issues under Smith.
• United States v. Templeton, 2007 U.S. Dist. LEXIS 8930 (W.D. Ok. 2007) – CC (G), XPF (G), SDP (G), PDP (G); Court held that SORNA did not violate the Commerce Clause because it fit the 2nd Lopez category.
• United States v. Madera, 2007 U.S. Dist. LEXIS 3029 (M.D. Fl. 2007) – CC (G), ND (G), XPF (G), PDP (G), SDP (G); Court held that under Smith, there was no Ex Post Facto Clause issue. Further, SORNA did not violate the Commerce Clause because there existed a rational basis between the Act and interstate commerce.
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