APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. George Z. Singal, U.S. District Judge]
The opinion of the court was delivered by: Boudin, Circuit Judge.
Before Torruella, Boudin and Thompson, Circuit Judges.
Brian Parks was convicted under the U.S. Criminal Code, 18 U.S.C. _ 2250(a) (2006), for traveling in interstate commerce and then knowingly failing to update his sex offender registration at his destination as required by the Sex Offender Registration and Notification Act ("SORNA"), Pub. L. No. 248, tit. I, 120 Stat. 587, 590-611 (2006) (codified primarily at 18 U.S.C. _ 2250 and 42 U.S.C. __ 16901-16962). He now appeals to challenge his conviction and his sentence.
Prior to his travel-and-failure-to register offense now at issue, Parks had been convicted of sexual offenses in Massachusetts, one in January 1990, and another in June 1996. He was notified in writing on September 21, 2006, of his duty to register under SORNA. He initially registered in Massachusetts but then failed to register in Maine when, at some point in 2009, he began to reside in Maine. Parks was warned to register in Maine by a policeman who encountered him there in August 2009, but he ignored the warning.
On February 8, 2010, Maine police discovered that Parks had been living at a motel in Maine since November 21, 2009, and that there were warrants out for his arrest on a probation-violation charge in Massachusetts, apparently for having failed to update his registration in that state in July 2009. He was arrested and was returned to Massachusetts. There he admitted to the Massachusetts probation violation and was sentenced by a Massachusetts state court to two and a half years in prison.
In May 2010, Parks was indicted by a federal grand jury in Maine on one count of traveling in interstate commerce and knowingly failing to update a registration as required by SORNA, 18 U.S.C. _ 2250(a). After the district court denied Parks' several challenges to SORNA, he pled guilty conditioned on his right to appeal the legal objections urged in his failed motion to dismiss. Thereafter he was sentenced by the district court to 35 months' imprisonment consecutive to his state sentence for violating probation. He now appeals to pursue his reserved contentions.
SORNA was enacted in July 2006 under Congress' Commerce Clause power to create "a comprehensive national system for the registration of [sex] offenders," 42 U.S.C. _ 16901; the statute requires sex offenders to register, and to keep their registrations current, in each jurisdiction where they reside, work, or attend school. Id. __ 16913(a) & (c). SORNA imposes criminal sanctions on convicted sex offenders subject to its registration requirements who travel in interstate commerce and knowingly fail to register or update their registrations. 18 U.S.C. _ 2250(a).
By its own terms, SORNA's registration requirements applied automatically to individuals who committed a triggering sexual offense after the statute's enactment in July 2006. The Attorney General was told to decide whether SORNA should be applied to those who committed their triggering sexual offense before SORNA's enactment. 42 U.S.C. _ 16913(d). The Attorney General ruled that it should so apply.*fn1 But just when this approval became effective was the subject of dispute and was answered only recently by the Supreme Court in Reynolds v. United States, 132 S.Ct. 975 (2012), resolving a circuit split on the matter. Id. at 981.
In Reynolds the Supreme Court held that SORNA's prohibition of travel and failure to register applied to pre-SORNA sexual offenders like Parks only where the travel and non-registration occurred after the Attorney General's approval had occurred, rather than from the date of SORNA'S enactment. 132 S.Ct. at 984. The Supreme Court did not, however, determine whether this approval should be deemed effective in February 2007, when an Interim Rule was promulgated on an emergency basis to make SORNA applicable to pre-SORNA sexual offenses, or on August 1, 2008, when the so-called SMART guidelines issued by the Attorney General became effective.
The circuits are in disagreement about this issue,*fn2 and our circuit has not yet addressed it because, like four other circuits, we had previously believed that SORNA applied to pre-Act offenders from the moment of its enactment. However, several of our decisions resting on this premise were vacated after Reynolds: United States v.DiTomasso, 621 F.3d 17 (1st Cir. 2010), vacated, 132 S.Ct. 1533 (2012); United States v. Stevens, 640 F.3d 48 (1st Cir. 2011), vacated, 132 S.Ct. 1739 (2012); United States v. Gagnon, 621 F.3d 30 (1st Cir. 2010), vacated, 132 S. Ct. 1533 (2012).
Conversely, the Supreme Court denied certiorari on a similar case from this circuit in which the offender traveled after the Interim Rule but before the SMART regulations. United States v. Thompson, 431 Fed. App'x 2 (1st Cir. 2011), cert. denied, 132 S. Ct. 1739 (2012). This might suggest that the Supreme Court agrees with the circuits supporting the Interim Rule date but it has not formally decided the issue and we have no occasion to resolve it here, since Parks would be covered whether the Interim Rule date or the 2008 SMART guidelines date controlled.
Thus, Parks pled guilty to an indictment alleging that he traveled in interstate commerce and knowingly failed to update his registration between November 21, 2009, and February 7, 2010, long after the 2008 SMART guidelines were promulgated by the Attorney General, and Parks makes no argument that the registration requirements took effect on an even later date. Parks suggests that we remand the matter to the district court for further consideration but does not explain what purpose would be served by a remand.
Reynolds--a statutory interpretation decision--does not address Parks' separate claim on appeal that applying SORNA to him violates the Ex Post Facto Clause, U.S. Const. Art. I, _ 9, cl. 3. The most familiar argument in this vein--that Congress cannot criminalize conduct after it occurs--does not operate here because while Parks' sexual offenses occurred pre-SORNA, the travel and failure to register for which he was punished occurred after SORNA. Thompson, 431 Fed. App'x at 4. Rather, Parks invokes the Ex Post Facto Clause by arguing that SORNA's registration requirements impermissibly increase his punishment for his earlier sexual offenses--an issue of law which we consider de novo.
The Ex Poste Facto argument turns on whether SORNA is deemed a civil regulatory measure aiming at forestalling future harm or is instead punitive either in its purpose or effect. See Smith v. Doe, 538 U.S. 84, 92 (2003). If the sole issue were professed legislative purpose, the answer would be obvious: the Act clearly states that its purpose is to "protect the public from sex offenders and offenders against children . . . [by] establish[ing] a comprehensive national system for the registration of ...