18 U.S.C. §2250.

Id. §2250(a).

Id. §2250(a).

Id. §2250(d).

P.L. 109-248, 120 Stat. 587 (2006), codified as amended 42 U.S.C. §§16901-16945 and 18 U.S.C. §2250; see generally CRS Report R43954, Federal Involvement in Sex Offender Registration and Notification: Overview and Issues for Congress, In Brief, by [author name scrubbed].

42 U.S.C. §§14071-14073 (repealed).

Citations to the state statutes in effect at the time of the Walsh Act's enactment appear in CRS Report RL33967, Adam Walsh Child Protection and Safety Act: A Legal Analysis, by [author name scrubbed], 1-2 n.8.

Reynolds v. United States, 132 S. Ct. 975, 978 (2012) (here and throughout internal citations have generally been omitted) ("The new federal Act reflects Congress' awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems.").

Office of the Attorney General, The National Guidelines for Sex Offender Registration and Notification (National Guidelines), 73 Fed. Reg. 38,030, 38,044-45 (July 2, 2008); see also Office of the Attorney General, Supplemental Guidelines for Sex Offender Registration and Notification, 76 Fed. Reg. 1630 (Jan. 11, 2011); Office of the Attorney General, Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification Act, 81 Fed. Reg. 50,552 (Aug. 1, 2016).

42 U.S.C. §16925.

Id. §16913(d).

72 Fed. Reg. 8894-897 (Feb. 28, 2007) (interim rule); 75 Fed. Reg. 18,849-853 (Dec. 29, 2010) (final rule), 28 C.F.R. pt. 72.

42 U.S.C. §16924.

U.S. Dep't of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, Requests for Reallocation of Byrne JAG Funding Penalty, SMART Watch (Spring 2012), available at http://www.ojp.gov/smart/smarwatch/12_spring/news-1.html (last visited Jan. 17, 2017).

U.S. Dep't of Justice, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, SORNA Implementation Status, available at http://www.smart.gov/sorna-map.htm (last visited Jan. 17, 2017). For a discussion of some of the difficulties associated with implementation in the states and the efforts of the Justice Department to facilitate the process, see Jennifer N. Wang, Paying the Piper: The Cost of Compliance with the Federal Sex Offender Registration and Notification Act, 59 N.Y. L. Sch. L. Rev. 681 (2015); Lori McPherson, The Sex Offender Registration and Notification Act (SORNA) at 10 years: History, Implementation, and the Future, 64 Drake L. Rev. 741 (2016); U.S. Gov't Accountability Off., GAO-13-211, Sex Offender Registration and Notification Act: Jurisdictions Face Challenges to Implement the Act, and Stakeholders Report Positive and Negative Effects (Feb. 2013).

18 U.S.C. §2250(a) ("Whoever - (1) is required to register under the Sex Offender Registration and Notification Act; (2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act 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 the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both.").

"A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.... " 42 U.S.C. §16913(a). "The term 'sex offender' means an individual who was convicted of a sex offense," 42 U.S.C. §16911(1). "[T]he term 'sex offense' means – a criminal offense ... a [designated] Federal offense ... [or] a military offense.... " 42 U.S.C. §16911(5)(A)(1). "The term 'criminal offense' means a State, local, tribal, foreign, or military offense ... or other criminal offense," 42 U.S.C. §16911(6). Under the Dictionary Act, "words importing the masculine gender include the feminine as well," 1 U.S.C. §1.

42 U.S.C. §16913(a). This requirement to register in the state of conviction does not cover pre-SORNA offenders who were already registered with authorities in the states in which they resided when the Attorney General made SORNA retroactively applicable. United States v. DeJarnette, 741 F.3d 971, 975-82 (9^th Cir. 2013).

SORNA defines "jurisdiction" as "any of the following: (A) A State. (B) The District of Columbia. (C) The Commonwealth of Puerto Rico. (D) Guam. (E) American Samoa. (F) The Northern Mariana Islands. (G) The United States Virgin Islands. (H) To the extent provided and subject to the requirements of section 16927 of this title, a federally recognized Indian tribe." 42 U.S.C. §16911(10).

Id. at §16913(c) ("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) 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.").

United States v. Murphy, 664 F.3d 798, 800-803 (10^th Cir. 2011); United States v. Van Buren, 599 F.3d 170, 174-75 (2d Cir. 2010); United States v. Voice, 622 F.3d 870, 875 (8^th Cir. 2010). Each of these cases involved a change of residence rather than employment or education, but the distinction should make no difference. Whether these cases remain good law after the Supreme Court's Nichols decision remains to be seen. In Nichols, the Court overturned the §2250 conviction of a sex offender who left Kansas for the Philippines. The Court reasoned that he could not be convicted for failure to report the move to a jurisdiction in which he "resides" when he resided in the Philippines, a nonjurisdiction. Nichols v. United States, 136 S. Ct. 1113, 1118 (2016).

42 U.S.C. §16911(13).

National Guidelines, 73 Fed. Reg. 38, 030, 38,061 (July 2, 2008).

Id.

Id. at 38,062.

Id. See also United States v. Thompson, 811 F.3d 717, 729-30 (5^th Cir. 2016); United States v. Alexander, 817 F.3d 1205, 1214 (10^th Cir. 2016) (The same registration requirements apply in the case at bar. If the jury finds that Alexander intended to make Williams' apartment his home or intended to 'habitually live' at Williams' apartment (i.e., that Alexander intended to live at Williams' apartment for thirty days or more), then it would necessarily have to find that he violated SORNA because it is undisputed that he did not register within three business days after arriving in Las Cruces."). Alexander's conviction was ultimately overturned because the jury instructions may have been confusing. Id. at 1215.

42 U.S.C. §16911(12).

National Guidelines, 73 Fed. Reg. at 38,062.

Id.

Id. at 38,056.

42 U.S.C. §16911(11).

National Guidelines, 73 Fed. Reg. at 38, 062.

Nichols v. United States, 136 S. Ct. 1113, 1118 (2016).

P.L. 114-119, 130 Stat. 15 (2016), codified at. 42 U.S.C. §16914(a)(7).

42 U.S.C. §16911(1), (5), (7).

Id. §16911(1), (5).

Id. §16911(5)(A)(iii).

U.S. Dep't of Defense, Department of Defense Instruction 1325.07, Enclosure 2, Appendix 4 (Mar. 11, 2013), available at http://www.dtic.mil/whs/directives/corres/pdf/132507p.pdf. Covered offenses defined prior to June 28, 2012) consist of: "I. Offenses Defined Before October 1, 2007—UCMJ art 120: Rape and Carnal Knowledge; UCMJ art. 125: Forcible Sodomy and Sodomy of a Minor; UCMJ art. 133: Conduct Unbecoming an Officer (involving any sexually violent offense or a criminal offense of a sexual nature against a minor or kidnapping of a minor); USMJ art. 134: General Article involving: prostitution of a minor, assault with intent to commit rape, assault with intent to commit sodomy, indecent act with a minor, indecent language to a minor, kidnapping of a minor (by a person not parent), pornography involving a minor, conduct prejudicial to good order and discipline (involving any sexually violent offense or a criminal offense of a sexual nature against a minor or kidnapping of a minor), assimilative crime conviction (of a sexually violent offense or a criminal offense of a sexual nature against a minor or kidnapping of a minor); UCMJ art. 80: Attempt (to commit any of the foregoing); UCMJ art. 81: Conspiracy (to commit any of the foregoing); UCMJ art. 82: Solicitation (to commit any of the foregoing);" and "II. Offenses Defined on or after October 1, 2007 and before June 28, 2012—UCMJ art. 120: Rape, Rape of a Child, Aggravated Sexual Assault, Aggravated Sexual Conduct, Abusive Sexual Contact, Indecent Liberties and Act, Forcible Pandering, and Wrongful Sexual Contact; UCMJ art. 125: Forcible Sodomy and Sodomy of a Minor; UCMJ art. 133: Conduct unbecoming an officer (involving an offense described in Appendix 4); UCMJ art. 134: General Article involving: Prostitution involving a minor, Assault with intent to commit rape, Assault with intent to commit sodomy, Kidnapping a minor (other than by a parent), Pornography involving a minor." Id.

42 U.S.C. §16911((7), (5)(A)(ii), (6), (14). Courts inquire into the circumstances of a conviction in order to determine whether it constitutes a conviction for "conduct that by its nature is a sex offense against a minor" triggering the obligation to register. See United States v. Hill, 820 F.3d 1003, 1005-1006 (8^th Cir. 2016) (discussing circumstances surrounding a state "indecent exposure" conviction); United States v. Price, 777 F.3d 700, 708-10 (4^th Cir. 2015) (discussing circumstances surrounding a state "assault and battery of a high and aggravated nature" conviction); United States v. Dodge, 597 F.3d 1347, 1353-56 (11^th Cir. 2010) (discussing circumstances surrounding a federal "transfer of obscene material to a child" conviction); United States v. Byun, 539 F.3d 982, 992-94 (9^th Cir. 2008) (discussing circumstances surrounding importing an alien for purposes of prostitution).

42 U.S.C. §16911(5)(A)(i). SORNA defines neither "sexual act" nor "sexual contact." The terms are defined elsewhere in the United States Code as follows: "(2) the term 'sexual act' means - (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;"

"(3) the term 'sexual contact' means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person," 18 U.S.C. §2246(2), (3), adopted by cross reference in 20 U.S.C. §6777(e)(8); 20 U.S.C. §9134(f)(7)(E); 47 U.S.C. §254(h)(7)(H); and 47 U.S.C. §902 note (P.L. 106-554, 114 Stat. 2763A-336 (2000).

42 U.S.C. §16911(5)(A)(v).

42 U.S.C. §16911(8); 18 U.S.C. §2241. The Guidelines note that by virtue of 18 U.S.C. §2246 the "sexual acts" condemned in §2241 "include any degree of genital or anal penetration, and any oral-genital or oral-anal contact," National Guidelines, 73 Fed. Reg. 38,030, 38,050 (July 2, 2008). They do not mention that by the same token "sexual acts" for purposes of §2241 also include "the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person," 18 U.S.C. §2246(2)(D).

18 U.S.C. §5038(a).

United States v. Under Seal, 709 F.3d 257, 261-63 (4^th Cir. 2013).

National Guidelines, 73 Fed. Reg. at 38,050.

Id. at 38,051.

42 U.S.C. §16911(5)(C). The exception is also unavailable for convictions of sexual assault where the defendant induces fear and consent through misrepresentation. United States v. Alexander, 802 F.3d 1134, 1140 (10^th Cir. 2015).

42 U.S.C. §16911(5)(C). For purposes of §16911(5)(C), "4 years" is 48 months or 1,461 days. See United States v. Brown, 740 F.3d 145, 149 (3d Cir. 2014) (holding that §16911(5)(C) did not apply when the offender was 17 and the victim 13, but the offender is 52 months older, rather than 48 months older, than the victim); see also United States v. Black, 773 F.3d 1113, 1115 (10^th Cir. 2014) ( (holding that §16911(5)(C) did not apply where the 18-year offender was 55 months older than the 14-year old victim).

42 U.S.C. §16913(a)("A sex offender shall register ...").

Id. §16913(d).

Reynolds v. United States, 132 S. Ct. 975, 978 (2012).

5 U.S.C. §553.

Id. §553(b), (d).

72 Fed. Reg. 8894, 8897 (Feb. 28, 2007), 28 C.F.R. §72.3.

72 Fed. Reg. 8894, 8896 (Feb. 28, 2007), 28 C.F.R. pt.72.

National Guidelines, 73 Fed. Reg. at 38,046 ("Rather, SORNA's requirements took effect, when SORNA was enacted on July 26, 2007, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA's enactment. See 72 FR 8894, 8895-96 (February 28, 2007).").

73 Fed. Reg. 81,849 (Dec. 28, 2010).

United States v. Dean, 604 F.3d 1275, 1278-282 (11^th Cir. 2010) ("The Attorney General had good cause to bypass the Administrative Procedure Act's notice and comment requirements."); United State v. Gould, 568 F.3d 459, 470 (4^th Cir. 2009) ("[T]he Attorney General had good cause to invoke the exception to providing the 30-day notice."); United States v. Dixon, 551 F.3d 578, 583 (7^th Cir. 2008) (characterizing the APA argument as "frivolous").

United States v. Reynolds, 710 F.3d 498, 510-14 (3d Cir. 2013); United States v. Johnson, 632 F.3d 912, 927-30 (5^th Cir. 2011)("[W]e do not find the Attorney General's reasons for bypassing the APA's notice-and-comment and thirty day provisions persuasive."); United States v. Valverde, 628 F.3d 1159, 1164-168 (9^th Cir. 2010); United States v. Cain, 583 F.3d 408, 419-24 (6^th Cir. 2009).

Reynolds, 710 F.3d at 514-24.

Johnson, 632 F.3d at 933 ("Because the Attorney General's rulemaking process addressed the same issues raised by Johnson and because Johnson makes no showing that the outcome of the process would have been different ... had notice been at its meticulous best, we find it is clear that the Attorney General's APA violations were harmless error.").

Valverde, 628 F.3d at 1164; United States v. Utesch, 596 F.3d 302, 310 (6^th Cir. 2010).

Valverde, 628 F.3d at 1169; United States v. Stevenson, 676 F.3d 557, 562-66 (6^th Cir. 2012).

Cf., United States v. Gundy, 804 F.3d 140, 145 (2d Cir. 2016); United States v. Brewer, 766 F.3d 884, 885 (8^th Cir. 2014); United States v. Whitlow, 714 F.3d 41, 45 (1^st Cir. 2013).

United States v. Fuller, 627 F.3d 499, 507 (2d Cir. 2010) ("[E]very Circuit to have considered the matter has held that SORNA is a general intent crime ... 'There is no language requiring specific intent or a willful failure to register such that the defendant must know his failure to register violated federal law.'") (quoting, United States v. Gould, 568 F.3d 459, 468 (4^th Cir. 2004), and citing, United States v. Shenandoah, 595 F.3d 151, 159 (3d Cir. 2010), and United States v. Vasquez, 611 F.3d 325, 328-29 (7^th Cir. 2010)). See also United States v. Collins, 773 F.3d 25, 29 (4^th Cir. 2014) (internal citations omitted) ("[T]he government may can establish a defendant's guilty knowledge by either of two different means. The government may show that a defendant actually was aware of a particular fact or circumstance, or that the defendant knew of a high probability that a fact or circumstance existed and deliberately sought to avoid confirming that suspicion. "); United States v. Crowder, 656 F.3d 870, 873-76 (9^th Cir. 2011); United States v. Voice, 622 F.3d 870, 875-66 (8^th Cir. 2010).

18 U.S.C. §2250(a) (emphasis added) ("Whoever ... (2)(A) is a sex offender ... by reason of a conviction under Federal law ... or (B) travels in interstate or foreign commerce ..."); United States v. Kebodeaux, 647 F.3d 137, 142 (5^th Cir. 2011), vac'd for reh'g en banc, 647 F.3d 605 (5^th Cir. 2011), citing, Carr v. United States, 130 S. Ct. 2229, 2238 (2010)("[Section] 2250(a)(2)(A) does not depend on the interstate commerce jurisdictional hook. That subsection expressly deals with person convicted under federal sex offender statutes and is conspicuously lacking the interstate travel element of §2250(a)(2)(B).").

United States v. George, 625 F.3d 1124, 1130 (9^th Cir. 2010); cf., Kebodeaux, 647 F.3d at 142 ("Federal sex offender statutes themselves are promulgated under various provisions of Article I [(Congress' enumerated powers)]."); United States v. Comstock, 560 U.S. 126, 149 (2010) ("[A] statute is a 'necessary and proper' means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.").

18 U.S.C. §1151 ("... [T]he term 'Indian country' ... means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government ... , (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights- of-way running through the same.").

18 U.S.C. §2250(b) ("Whoever – (1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. 16901 et seq.); (2) knowingly fails to provide information required by the Sex Offender Registration and Notification Act relating to intended travel in foreign commerce; and (3) engages or attempts to engage in the intended travel in formation commerce; shall be fined under this title, prisoned not more than 10 years, or both.").

Carr v. United States, 560 U.S. 438, 458 (2010).

42 U.S.C. §16913(a) ("A sex offender shall register ..."); United States v. Stock, 685 F.3d 621, 626 (6^th Cir. 2012) ("The obligation SORNA does impose—the obligation to register—is imposed on sex offenders, not states.... That obligation exists whether or not a state chooses to implement SORNA's requirements and whether or not a state chooses to register sex offenders at all.").

18 U.S.C. §2250(b). See also Kennedy v. Allera, 612 F.3d 261, 269 (4^th Cir. 2010) (emphasis in the original) ("Thus, while SORNA imposes a duty on the sex offender to register, it nowhere imposes a requirement on the State to accept such registration. Indeed, the criminal provisions of SORNA also recognize that a State can refuse registration in as much as they allow, as an affirmative defense to a prosecution, the claim that 'uncontrollable circumstances prevent the individual from complying.'").

United States v. Kopp, 778 F.3d 986, 988-89 (11^th Cir. 2015) (citing United States v. Lewis, 768 F.3d 1086, 1092-94 (10^th Cir. 2014); United States v. Lunsford, 725 F.3d 859, 863 (8^th Cir. 2013); and United States v. Leach, 639 F.3d 769, 771-72 (7^th Cir. 2011). The Eleventh Circuit was unpersuaded by the defendant's argument to the contrary based on an unreported district court opinion from the Southern District of Ohio, Kopp, 778 F.3d at 989.

18 U.S.C. §3142(f)(1)(E).

Id. §3142(c)(1)(B).

Id. §2250(a).

Id. §2250(d) ("(1) In general. - An individual described in subsection (a) or (b) who commits a crime of violence 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 shall be imprisoned for not less than 5 years and not more than 30 years. (2) Additional punishment. - The punishment provided in paragraph (1) shall be in addition and consecutive to the punishment provided for the violation described in subsection (a).").

Gall v. United States, 552 U.S. 38, 49 (2007).

"The Guidelines are not the only consideration … [T]he district judge should then consider all of the §3553(a) factors …. Id. at 49-50. The §3553(a) factors include things like "(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need to for the sentence imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense …" 18 U.S.C. §3553(a)(1), (2)(A).

18 U.S.C. §3742.

Gall, 552 U.S. at 51; see also United States v. Trailer, 827 F.3d 933, 936 (11^th Cir. 2016); United States v. James, 792 F.3d 962, 967 (8^th Cir. 2015).

Gall, 552 U.S. at 51; see also Trailer, 827 F.3d at 936. Other procedural transgressions include "failing to consider the §3663(a) [general sentencing] factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence - including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51.

United States v. Alsante, 812 F.3d 544, 551 (6^th Cir. 2016); see also United States v. Bolling, 798 F.3d 201, 221 (4^th Cir. 2015) ("In evaluating substantive reasonableness, we look to the totality of the circumstances to determine whether the district court abused its discretion in applying the standards set out in Section 3553(a)(2) … Likewise, a sentence that is greater than necessary to serve those purposes is unreasonable."); United States v. Fraga, 704 F.3d 432, (5^th Cir. 2013) ("In sum, we find that in light of Fraga's criminal history and characteristics, the nine-month deviation from the Guidelines range was substantively reasonable and, in accordance with §3553(a), was 'not greater than necessary' to effectuate the goals of sentencing.").

U.S.S.G. §§2A3.5, 2A3.6.

Section 2A3.5 sets a base offense level of 16 for tier III defendants; 14 for tier II defendants; and 12 for tier I defendants, respectively. Without further adjustment, this would translate to a sentence of imprisonment somewhere between 24 and 30 months for a tier III defendant; between 18 and 24 months for a tier II defendant; and between 10 and 16 months for a tier I defendant. U.S.S.G. §4A1.1; id. Sentencing Table.

42 U.S.C. §16911(4).

Id. §16911(3).

Id. §16911(2).

United States v. Berry, 814 F.3d 192, 197 (4^th Cir. 2016); United States v. White, 782 F.3d 1118, 1134 (10^th Cir. 2015).

United States v. Rogers, 804 F.3d 1233, 1237 (7^th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9^th Cir. 2013).

United States v. Morales, 801 F.3d 1, 5 (1^st Cir. 2015).

18 U.S.C. §3583(a).

Id. §3583(b).

E.g., 21 U.S.C. §841(b); 18 U.S.C. §3583(j), (k).

Id. §3583(k); United States v. Jones, 798 F.3d 613, 619 (7^th Cir. 2015).

United States v. Brown, 826 F.3d 835, 839 (5^th Cir. 2016); United States v. Price, 777 F.3d 700, 710-12 (4^th Cir. 2015).

United States v. Trailer, 827 F.3d 933, 935-36 (11^th Cir. 2016); see also Jones, 798 F.3d at 619; United States v. James, 792 F.3d 962, 967 (8^th Cir. 2015).

E.g., Brown, 826 F.3d at 839; United States v. Medina, 779 F.3d 55, 58-9 (1^st Cir. 2015); United States v. Baker, 755 F.3d 515, 522-23 (7^th Cir. 2014).

Trailer, 827 F.3d at 936; James, 792 F.3d at 968; see also Jones, 798 F.3d at 619 ("In determining the length and conditions of supervised release … a court must consider the same §3553(a) factors that guide sentencing determinations generally.").

18 U.S.C. §3583(d), (e); U.S.S.G. §5D1.3(a)(1)-(8).

18 U.S.C. §3583(d). The discretionary conditions for probation include "that the defendant - shall be imprisoned for not less than 5 years and not more than 30 years. (2) Additional punishment. - The punishment provided in paragraph (1) shall be in addition and consecutive to the punishment provided for the violation described in subsection (a).”). Congressional Research Service 15 SORNA: A Legal Analysis of 18 U.S.C. § 2250 defines “crime of violence” for purposes of title 18 as “[a]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”99 Sentencing Guidelines The Sentencing Guidelines heavily influence the sentences imposed for violations of Section 2250. A district court must begin by calculating the sentencing range recommended by the Sentencing Guidelines.100 The court must then consider the recommendation along with the general statutory sentencing principles.101 The defendant, as well as the prosecution, may appeal the sentence imposed,102 which the appellate courts may overturn if it is either procedurally or substantively unreasonable.103 A sentence is procedurally unreasonable when it is the product, among other things, of an erroneous Guideline calculation.104 It is substantively unreasonable when it is “[dis]proportionate to the seriousness of the circumstances of the offense [or] offender, [or] [in]sufficient or greater than necessary to comply with the purposes of the federal sentencing statute.”105 Sections 2A3.5 and 2A3.6 of the Sentencing Guidelines provide the initial guidelines for Section 2250 offenses.106 Section 2A3.5 applies to cases other than those under the aggravated sentencing provisions of 18 U.S.C. § 2250(d), and sets a defendant’s base offense level according to SORNA’s tier classifications.107 A SORNA Tier III sex offender for sentencing purposes is: 99 Section 16(b) contains an alternative definition that the Supreme Court found unconstitutionally vague in Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018). 100 Gall v. United States, 552 U.S. 38, 49 (2007); United States v. Chambers, 956 F.3d 667, 672 (4th Cir. 2020); United States v. Alcius, 952 F.3d 83, 87-88 (2d Cir. 2020). 101 Gall, 552 U.S. at 49-50 (“The Guidelines are not the only consideration …. [T]he district judge should then consider all of the § 3553(a) factors ….”); see also United States v. Dailey, 958 F.3d 742, 746 (8th Cir. 2020); Alcius, 952 F.3d at 87-88; United States v. Nance, 957 F.3d 204, 212 (4th Cir. 2020); United States v. Díaz-Rivera, 957 F.3d 20, 25 (1st Cir. 2020). The § 3553(a) factors include things like “(1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the need for the sentence imposed – (A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense ….” 18 U.S.C. § 3553(a)(1), (2)(A). 102 18 U.S.C. § 3742. 103 Gall, 552 U.S. at 51; see also United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016); United States v. James, 792 F.3d 962, 967 (8th Cir. 2015). 104 Gall, 552 U.S. at 51; see also Dailey, 958 F.3d at 746; United States v. Benton, 957 F.3d 696, 700 (6th Cir. 2020); United States v. Douglas, 957 F.3d 602, 606 (5th Cir. 2020). 105 United States v. Alsante, 812 F.3d 544, 551 (6th Cir. 2016); see also United States v. Haverkamp, 958 F.3d 145, 148 (2d Cir. 2020) (“A sentence is substantively unreasonable if it cannot be located within the range of permissible decisions, shocks the conscience, or constitutes a manifest injustice.”); Nance, 957 F.3d at 215 (“To assess this [substantively-reasonable] argument, we ‘examin[e] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a).’” (quoting United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2011))); United States v. Fuentes-Moreno, 954 F.3d 383, 396 (1st Cir. 2020) (‘“[T]he substantive reasonableness of a sentence turns on whether the sentencing court articulated a plausible sentencing rationale and reached a defensible result.’” (quoting United States v Matos-de-Jesús, 856 F.3d 174, 179 (1st Cir. 2017)))); United States v. Fraga, 704 F.3d 432, (5th Cir. 2013) (“In sum, we find that in light of Fraga’s criminal history and characteristics, the nine-month deviation from the Guidelines range was substantively reasonable and, in accordance with §3553(a), was ‘not greater than necessary’ to effectuate the goals of sentencing.”). 106 U.S.S.G. §§ 2A3.5, 2A3.6. 107 Section 2A3.5 sets a base offense level of 16 for Tier III defendants; 14 for Tier II defendants; and 12 for Tier I defendants, respectively. Without further adjustment, this would translate to a sentence of imprisonment somewhere between 24 and 30 months for a Tier III defendant; between 18 and 24 months for a Tier II defendant; and between 10 Congressional Research Service 16 SORNA: A Legal Analysis of 18 U.S.C. § 2250 [A] sex offender whose offense is punishable by imprisonment for more than 1 year and- (A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit such an offense: (i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of title 18); or (ii) abusive sexual contact (as described in section 2244 of title 18) against a minor who has not attained the age of 13 years; (B) involves kidnapping of a minor (unless committed by a parent or guardian); or (C) occurs after the offender becomes a tier II sex offender.108 A SORNA Tier II sex offender is: [A] sex offender other than a tier III sex offender whose offense is punishable by imprisonment for more than 1 year and- (A) is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor: (i) sex trafficking (as described in section 1591 of title 18); (ii) coercion and enticement (as described in section 2422(b) of title 18); (iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) of title 18; (iv) abusive sexual contact (as described in section 2244 of title 18); (B) involves- (i) use of a minor in a sexual performance; (ii) solicitation of a minor to practice prostitution; or (iii) production or distribution of child pornography; or (C) occurs after the offender becomes a tier I sex offender.109 A SORNA Tier I sex offender is any sex offender who is not a Tier II or III sex offender.110 As noted earlier, the courts use a “categorical approach” to determine whether a prior state, military, or foreign conviction qualifies a defendant as a Tier I, II, or III sex offender. In the categorical approach, they examine the elements of the state offense. Here too, courts favor the categorical approach when SORNA describes the qualifying state statute of conviction by reference to a particular federal statute or statutes;111 or when it refers to “elements” rather than “conduct”;112 or to “convictions” rather than “conduct committed.”113 Under the categorical and 16 months for a Tier I defendant. U.S.S.G. § 4A1.1; id. Sentencing Table. 108 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier III offender’ ha[s] the meaning given the term[] tier III sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(4). 109 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier II offender’ ha[s] the meaning given the term[] tier II sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(3). 110 U.S.S.G. § 2A3.5 app. n. 1 (“For purposes of this guideline: . . . ‘Tier I offender’ ha[s] the meaning given the term[] tier I sex offender’ … in 34 U.S.C. §20911.”); 34 U.S.C. § 20911(2). 111 United States v. Walker, 931 F.3d 576, 579 (7th Cir. 2019); United States v. Barcus, 892 F.3d 228, 232-32 (6th Cir. 2018); United States v. Berry, 814 F.3d 192, 197 (4th Cir. 2016); United States v. Morales, 801 F.3d 1, 6 (1st Cir. 2015); United States v. White, 782 F.3d 1118, 1134 (10th Cir. 2015). 112 United States v. Rogers, 804 F.3d 1233, 1237 (7th Cir. 2015); United States v. Cabrera-Gutierrez, 756 F.3d 1125, 1133 (9th Cir. 2013). 113 Morales, 801 F.3d at 5. Recall that the courts apply a circumstance-specific approach in analyzing the age elements of federal offenses in the categorical federal-elements-versus-state-elements approach. United States v. Escalante, 933 F.3d 395, 401-02 (5th Cir. 2019) (“Applying that hybrid approach to this case, SORNA’s sex offender tier classification imposes circumstance-specific conditions on the cross-referenced offenses. Title 34 U.S.C. § 20911(3) Congressional Research Service 17 SORNA: A Legal Analysis of 18 U.S.C. § 2250 approach, the statutory elements of the prior state offense must fit completely within the footprint created by the elements of the federal statute or statutes. There is no match if the state statute sweeps more broadly than its federal counterpart, in which case the state conviction may not serve as a SORNA predicate for tier-classification purposes. For example, the Fourth Circuit used the categorical approach to determine whether a defendant convicted under a state “endangering the welfare of a child” statute qualified as a Tier III sex offender.114 It decided that he did not.115 The relevant portion of SORNA requires that to qualify as a Tier III defendant, there must be a conviction under a statute outlawing conduct comparable or more severe (1) than aggravated sexual abuse or sexual abused as described in 18 U.S.C. §§ 2241 and 2242, respectively; or (2) sexual contact as described in 18 U.S.C. § 2244 committed against a child under 13 years of age.116 The Fourth Circuit reasoned that Sections 2241, 2242, and 2244 each require physical contact.117 The state courts, however, had interpreted the endangering statute to encompass conduct that did not involve physical contact.118 Conviction under the state endangering statute was not necessarily a conviction for conduct comparable or more severe than that outlawed in federal aggravated sexual abuse, sexual abuse, or sexual contact statutes.119 Therefore, the defendant could not be classified as a Tier III sex offender.120 Section 2A3.6 of the Sentencing Guidelines applies to offenses under the aggravated sentencing provisions of 18 U.S.C. § 2250(d). Section 2A3.6 sets the guideline sentence at the minimum (imprisonment for 5 years),121 but acknowledges that upward departure may be warranted in a particular case.122 Section 2A3.6 also supplies the sentencing guidance for a second offense whose existence may help to explain why section 2259(d) is so infrequently invoked. Regardless of whether a sex offender has failed to register, a sex offender who is required to register under federal or any other law faces a sentencing enhancement of 10 years’ imprisonment, 18 U.S.C. § 2260A, when he modifies the cross-referenced offenses with ‘when committed against a minor,’ and 34 U.S.C. §20911(4)(A) (ii) modifies the cross-reference offenses with ‘against a minor who has not attained the age of 13 years.’ Therefore … we hold that when classifying sex offender tier levels under 34 U.S.C. §§ 20911(2)-(4), the text of SORNA requires a circumstance-specific inquiry into the victim’s age to determine whether the victim was, in fact, a minor at the time of the offense.”); see also Berry, 814 F.3d at 197; White, 782 F.3d at 1135; United States v. Byun, 539 F.3d 982, 991 (9th Cir. 2008). 114 Berry, 814 F.3d 192, 199-200 (4th Cir. 2016). 115 Id. 116 42 U.S.C. § 16911(4)(A)(i), (ii) [now 34 U.S.C. § 20911(4)(A)(i), (ii)]. 117 Berry, 814 at 199. 118 Id. at 200. 119 Id. 120 Id. 121 U.S.S.G. § 2A3.6(a). 122 Id. app. n.4. Congressional Research Service 18 SORNA: A Legal Analysis of 18 U.S.C. § 2250 commits any of a list of sex offenses.123 Moreover, recidivist federal sex offenders face the prospect of mandatory life imprisonment.124 Supervised Release Generally, when a court sentences a defendant to prison, it may also sentence him to a term of supervised release.125 Supervised release is a parole-like regime under which a defendant is subject to the oversight of a probation officer following his release from prison. The term of supervised release for most crimes is either 1, 3, or 5 years depending on the severity of the crime of conviction.126 Congress has authorized, or insisted upon, longer terms when the crime of 123 18 U.S.C. § 2260A (“Whoever, being required by Federal or other law to register as a sex offender, commits a felony offense involving a minor under section 1201 [kidnaping], 1466A [obscene visual depiction of sexual abuse of a child], 1470 [transfer of obscenity to a child], 1591 [commercial sex trafficking], 2241 [aggravated sexual abuse], 2242 [sexual abuse], 2243 [sexual abuse of a minor or ward], 2244 [abusive sexual contact], 2245 [sexual abuse resulting in death], 2251 [sexual exploitation of a child], 2251A [selling a child], 2260 [production of child pornography for U.S. import], 2421 [transportation for illicit sexual purposes], 2422 [coercion or enticement to travel], 2423 [transportation for illicit sex with a child], or 2425 [interstate transmission of information related to a child], shall be sentenced to a term of imprisonment of 10 years in addition to the imprisonment imposed for the offense under that provision. The sentence imposed under this section shall be consecutive to any sentence imposed for the offense under that provision.”). 124 18 U.S.C. §3559(e) (“(e) Mandatory Life Imprisonment for Repeated Sex Offenses Against Children.- (1) In general.-A person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim, unless the sentence of death is imposed. (2) Definitions.-For the purposes of this subsection- (A) the term ‘Federal sex offense’ means an offense under section 1591 (relating to sex trafficking of children), 2241 (relating to aggravated sexual abuse), 2242 (relating to sexual abuse), 2244(a)(1) (relating to abusive sexual contact), 2245 (relating to sexual abuse resulting in death), 2251 (relating to sexual exploitation of children), 2251A (relating to selling or buying of children), 2422(b) (relating to coercion and enticement of a minor into prostitution), or 2423(a) (relating to transportation of minors); (B) the term ‘State sex offense’ means an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense if, to the extent or in the manner specified in the applicable provision of this title- (i) the offense involved interstate or foreign commerce, or the use of the mails; or (ii) the conduct occurred in any commonwealth, territory, or possession of the United States, within the special maritime and territorial jurisdiction of the United States, in a Federal prison, on any land or building owned by, leased to, or otherwise used by or under the control of the Government of the United States, or in the Indian country (as defined in section 1151); (C) the term ‘prior sex conviction’ means a conviction for which the sentence was imposed before the conduct occurred constituting the subsequent Federal sex offense, and which was for a Federal sex offense or a State sex offense; (D) the term ‘minor’ means an individual who has not attained the age of 17 years; and (E) the term ‘State’ has the meaning given that term in subsection (c)(2). (3) Nonqualifying Felonies.-An offense described in section 2422(b) or 2423(a) shall not serve as a basis for sentencing under this subsection if the defendant establishes by clear and convincing evidence that- (A) the sexual act or activity was consensual and not for the purpose of commercial or pecuniary gain; (B) the sexual act or activity would not be punishable by more than one year in prison under the law of the State in which it occurred; or (C) no sexual act or activity occurred.”). 125 Id. § 3583(a). 126 Id. § 3583(b). Congressional Research Service 19 SORNA: A Legal Analysis of 18 U.S.C. § 2250 conviction is a particular drug, terrorist, or sex offense.127 Section 2250 is not among the sex offenses that triggers the longer terms of supervised release and consequently comes with a maximum three-year term of supervised release.128 Like the term of imprisonment, the term and conditions of supervised release must be procedurally and substantively reasonable.129 A term of supervised release is procedurally unreasonable when the district court miscalculates the Sentencing Guidelines’ recommendation or fails to provide an individualized explanation for a discretionary condition.130 A term of supervised release is substantively unreasonable when the district court inappropriately weighs the statutory sentencing factors in the context of the defendant and the circumstances of the case, or the sentence is shockingly severe or shockingly lenient.131 The statute and the Sentencing Guidelines establish an array of mandatory and discretionary conditions for those on supervised release. The mandatory conditions require the defendant to  avoid committing any additional federal, state, or local offenses;  refrain from the unlawful possession of controlled substances;  participate in a domestic violence rehabilitation program, if he has been convicted of domestic violence;  submit to periodic drug tests, unless the court suspends the condition if the defendant poses a low risk of future substance abuse;  pay installments to satisfy any outstanding fines or special assessments;  satisfy any outstanding restitution requirements;  comply with any SORNA registration demands; and  submit to the collection of a DNA sample.132 A sentencing court may also impose any condition from the statutory inventory of discretionary conditions for probation.133 In addition, the Sentencing Guidelines specify thirteen “standard” 127 E.g., 21 U.S.C. § 841(b); 18 U.S.C. § 3583(j), (k). 128 18 U.S.C. §§ 3583(k), 2250, 3581(b)(3), 3583(b)2). 129 United States v. Eaglin, 913 F.3d 88, 94 (2d Cir. 2019); United States v. Trailer, 827 F.3d 933, 935-36 (11th Cir. 2016); see also United States v. Jones, 798 F.3d 613, 619 (2d Cir. 2015); United States v. James, 792 F.3d 962, 967 (8th Cir. 2015). 130 E.g., Eaglin, 913 F.3d at 94; United States v. Brown, 826 F.3d 835, 839 (5th Cir. 2016); United States v. Medina, 779 F.3d 55, 58-59 (1st Cir. 2015); United States v. Baker, 755 F.3d 515, 522-23 (7th Cir. 2014). 131 Eaglin, 913 F.3d at 94; Trailer, 827 F.3d at 936; James, 792 F.3d at 968; see also Jones, 798 F.3d at 619 (“In determining the length and conditions of supervised release … a court must consider the same § 3553(a) factors that guide sentencing determinations generally.”). 132 18 U.S.C. § 3583(d), (e); U.S.S.G. § 5D1.3(a)(1)-(8). 133 18 U.S.C. § 3583(d). The applicable discretionary conditions for probation under Section § 3563(b) include “that the defendant - (1) support his dependents and meet other family responsibilities; (2) make restitution to a victim of the offense under section 3556 (but not subject to the limitation of section 3663(a) or 3663A(c)(1)(A)); (3) give to the victims of the offense the notice ordered pursuant to the provisions of section 3555; (4) work conscientiously at suitable employment or pursue conscientiously a course of study or vocational training that will equip him for suitable employment; … (16) permit a probation officer to visit him at his home or elsewhere as specified by the court; (17) answer inquiries by a probation officer and notify the probation officer promptly of any change in address or employment; … … (23) if required to register under the Sex Offender Registration and Notification Act, submit his person, and any property, house, residence, vehicle, papers, computer, other electronic communication or data storage devices or media, and effects to search at any time, with or without a warrant, by any law enforcement or probation officer with reasonable suspicion concerning a violation of a condition of probation or unlawful conduct by the person, and by any probation officer in the lawful discharge of the officer'’s supervision functions." 18 U.S.C. §3563(b).

Under U.S.S.G. §5D1.3(c)” Congressional Research Service 20 SORNA: A Legal Analysis of 18 U.S.C. § 2250 conditions;134 eight “special” conditions;135 and “additional” special conditions.136 Finally, the district court may impose any “specific” condition that, like the other discretionary conditions, meets the following statutory standards:  “(1) is reasonably related to the factors set forth in section 3553(a)(1) [the nature and circumstances of the offense and the history an characteristics of the defendant], (a)(2)(B), (a)(2)(C), and (a)(2)(D) [the need – (B) to afford adequate deterrence … (C) to protect the public from further crimes of the defendant; and (D) to provide the defendant with needed educational or vocation training, medical care, or other correctional treatment in the most effective manner];  (2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and  (3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).”137 Restrictions on a defendant’s association with children often appear among the discretionary conditions for supervised release for Section 2250 offenders. Whether the conditions survive appellate review turns upon their breadth, the district court’s justification for imposing them, and the features of individual cases.138 134 Under U.S.S.G. § 5D1.3(c), the standard conditions require an individual on supervised release to (1) report promptly to the probation office upon release; (2) comply with directions to report thereafter; (3) remain in the judicial district unless the probation officer approves departure; (4) answer the probation officer'’s questions truthfully; (5) live in a place the probation officer approves; (6) permit the probation officer to engage in searches and seizures; (7) seek employment and remain employed; (8) avoid felons and those who engage in criminal activity; (9) notify probation officer of arrests or police questioning; (10) refrain from possession of firearms, ammunition, or dangerous weapons; (11) avoid becoming an informant without court approval; (12) obey probation officer instructions to notify third persons of the risks to them that defendant poses; and (13) comply with the probation officer'’s interpretation of the conditions imposed. 135 Under U.S.S.G. § 5D1.3(d),conditions imposed.

Under U.S.S.G. §5D1.3(d) the special conditions require an individual on supervised release to (1) support dependents; (2) meet debt obligations; (3) provide the probation officer with access to financial information if the defendant has pending restitution, forfeiture, fine, or victim notification obligations; (4) if the court suspects controlled substance or alcohol abuse, refrain from possession of alcohol and participate in a substance abuse program if the court suspects controlled substance or alcohol abuse; (5) participate in mental health program if the court believes defendant needs treatment; (6) submit to deportation; (7) for sex offenders (the definition does not include Section 2250 offenders) participate in sex offender treatment and monitoring and limit computer use; and (8) notify the probation officer of any change in economic circumstances that might affect payment of outstanding obligations relating to restitution, fine, or special assessment.

136 Under U.S.S.G. § 5D1.3(e), the “additional” the "additional" special conditions include: (1) "“community confinement"”; (2) "home detention"; (3) "“home detention”; (3) “community service"”; (4) "“occupational restrictions"”; (5) "curfew"“curfew”; and (6) "“intermittent confinement."

” 137 18 U.S.C. § 3583(d). 138 3583(d).

E.g., United States v. Fey, 834 F.3d 1, 4 (1^st Cir. 2016) (quoting United States v. Pabon, 819 F.3d 26, 31 (1^st Cir. 2016) ("'[W]e have vacated associational conditions where the defendant'Edwards, 944 F.3d 631, 633 (7th Cir. 2019) (upholding conditions, imposed on a Section 2250 defendant previously convicted of possession and distribution of child pornography, that banned contact with children without permission of their parents and the defendant’s probation officer); United States v. Jennings, 930 F.3d 1024, 1026-27 (8th Cir. 2019) (upholding condition restraining the Section 2250 defendant from contacting his adult son without the approval of his probation officer in light of the defendant’s “long history of abusive conduct” and noting that the Eighth Circuit had “repeatedly upheld no-contact orders requiring defendants to seek permission from a probation officer before contacting their own minor children, even where there is no history or likelihood of abusive conduct”); United States v. Fey, 834 F.3d 1, 4 (1st Cir. 2016) (“‘[W]e have vacated associational conditions where the defendant’s prior sex offense occurred in the distant past, the intervening time was marked by lawful social activity, and the district court did not otherwise explain the need for such restrictions.'’ … And although the condition does not place an outright ban on Frey'’s association with minors, it operates not in limited contexts but in all contexts.")); see also” (quoting United States v. Pabon, 819 F.3d 26, 31 (1st Cir. 2016))); United States v. Baker, 755 F.3d 515, 526-27 (7^th7th Cir. 2014) (remanding for resentencing after the government conceded that a ban on the defendant'’s contact with his children should be vacated).

18 U.S.C. §3583(e)(2).

Id. § Congressional Research Service 21 SORNA: A Legal Analysis of 18 U.S.C. § 2250 The court may modify the conditions of supervised release at any time.139 It may also revoke the defendant’s supervised release and sentence him to prison for violating the conditions of supervised release.140 Constitutional Considerations Much of the litigation relating to Section 2250 and SORNA involves constitutional challenges taking one of two forms. One argues that SORNA or Section 2250 operates in a manner that the Constitution specifically forbids, for example in its clauses on Ex Post Facto laws, Due Process, and Cruel and Unusual Punishment. The other argues that the Constitution does not grant Congress the legislative authority to enact either Section 2250 or SORNA. These challenges probe the boundaries of the Commerce Clause, the Necessary and Proper Clause, and the Spending Clause, among others. The Supreme Court addressed two of the most common constitutional issues associated with sex offender registration laws before the enactment of SORNA. One addressed the Ex Post Facto Clause implications of sex offender registration, Smith v. Doe;141 the other addressed Due Process Clause implications, Connecticut Department of Public Safety v. Doe.142 Ex Post Facto Neither the states nor the federal government may enact laws that operate Ex Post Facto.143 The prohibition covers both statutes that outlaw conduct that was innocent when it occurred and statutes that authorize imposition of a greater penalty for a crime than applied when the crime occurred.144 The prohibitions, however, apply only to criminal statutes or to civil statutes whose intent or effect is so punitive as to belie any but a penal characterization.145 In Smith, the Supreme Court dealt with the Ex Post Facto issue in the context of the Alaska sex offender registration statute. It found the statute civil in nature and effect, not punitive, and consequently its retroactive application did not violate the Ex Post Facto Clause.146 Its analysis147 should be vacated). 139 18 U.S.C. § 3583(e)(2). 140 Id. § 3583(e)(3), (h). Section 3583(k) purports, under certain circumstances, to require revocation of supervised release imposed upon conviction for violating various federal sex offenses other than Section 2250. In United States v. Haymond, 139 S. Ct. 2369, 2373 (2019), the Supreme Court held in a plurality opinion that for a federal judge to do so, without a jury and by a preponderance of the evidence, violates the Fifth and Sixth Amendments. 141 538 U.S. 84 (2003). 142 538 U.S. 1 (2003). 143 U.S. CONST. art. I, § 10, cl. 1; art. I, § 9, cl. 3. 1443583(e)(3), (h).

538 U.S. 84 (2003).

538 U.S. 1 (2003).

U.S. Const. art. I, §10, cl. 1; art. I, §9, cl.3.

Stogner v. California, 539 U.S. 607, 612 (2003).

Stogner v. California, 539 U.S. 607, 612 (2003). 145 Smith v. Doe, 538 U.S. 84, 92 (2003) ("“This is the first time we have considered a claim that a sex offender registration and notification law constitutes retroactive punishment forbidden by the Ex Post Facto Clause. The framework for our inquiry, however, is well established. We must ascertain whether the legislature meant the statute to establish 'civil'‘civil’ proceedings. 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.' ’ Because we ordinarily defer to the legislature'’s stated intent, only the clearest proof will suffice to override legislative intent and transform what has been denominated a civil remedy into a criminal penalty.").

Id. at 107-108.

”). 146 Id. at 107-08. 147 Id. at 97 ("“In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, Congressional Research Service 22 SORNA: A Legal Analysis of 18 U.S.C. § 2250 has colored the lower federal courts’ treatment of Ex Post Facto challenges to Section 2250 and SORNA. “Relying on Smith, circuit courts have consistently held that SORNA does not violate the Ex Post Facto Clause,”148 with one apparently limited exception. The Ninth Circuit initially held that the SORNA obligations for pre-enactment juveniles constituted punishment, because they stripped juveniles of the confidentiality that then surrounded juvenile proceedings.149 Thus, their enforcement against such juveniles would constitute an Ex Post Facto violation, the Ninth Circuit decided.150 It subsequently concluded that “not all applications of SORNA to individuals based on juvenile sex offender determinations are sufficiently punitive to violate the Ex Post Facto Clause.”151 This is particularly true, the Ninth Circuit opined, when SORNA did not result in a loss of confidentiality because of the disclosure requirements that accompanied the original qualifying juvenile adjudication.152 Due Process The Supreme Court’s assessment of state sex offender registration statutes has been less dispositive of due process issues because of the variety of circumstances in which they may arise. Neither the federal nor state governments may deny a person of “life, liberty, or property, without due process of law.”153 Due process requirements take many forms. They preclude punishment without notice: “[a] conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”154 They bar restraint of liberty or the enjoyment of property without an opportunity to be heard: “[a]n essential principle of due process is that a deprivation of life, liberty, or property be preceded by notice and opportunity for hearing appropriate to the nature of the case.”155 They proscribe any punishments or restrictions that are so fundamentally unfair as to violate fundamental fairness, that is, substantive due process. In Connecticut Dep’t of Public Safety v. Doe, the Court found no due process infirmity in the Connecticut sex offender registration regime in spite of its failure to afford offenders an In analyzing the effects of the Act we refer to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), as a useful framework.... . . . .The factors most relevant to our analysis are whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.").

”). 148 United States v. Felts, 674 F.3d 599, 606 (6^th6th Cir. 2012) (citing, among others, United States v. Guzman, 591 F.3d 83, 94 (2d Cir. 2010); United States v. Shenandoah, 595 F.3d 151, 158-59 (3d Cir. 2010Gould, 568 F.3d 459, 466 (4th Cir. 2009); United States v. George, 625 F.3d 1124, 1131 (9^th Cir. 2010Young, 585 F.3d 199, 203-06 (5th Cir. 2009); United States v. Gould, 568 F.3d 459, 466 (4^th Cir. 2009); United States v. Young, 585 F.3d 199, 203-06 (5^th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1207 (11^th Cir. 2009)). See also United States v. Billiot, 785 F.3d 1266, 1269-70 (8^th Cir. 2015); United States v. White, 782 F.3d 1118, 1126-27 (10^th Cir. 2015); United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9^th 2012); United States v. Brunner, 726 F.3d 299, 304 (2d Cir. 2013); United States v. Parks, 698 F.3d 1, 4-6 (1^st Cir. 2012); United States v. W.B.H., 664 F.3d 848, 852-60 (11^th Cir. 2011).

United States v. Juvenile Male, 590 F.3d 924, 941-42 (9^th Cir. 2010), vac'd as mootAmbert, 561 F.3d 1202, 1207 (11th Cir. 2009)); see also Willman v. Att’y Gen., 972 F.3d 819, 824-25 (6th Cir. 2020) (collecting cases in accord); United States v. Diaz, 967 F.3d 107, 110-11 (2d Cir. 2020); United States v. Wass, 954 F.3d 184, 192-93 (4th Cir. 2020) (holding Wass’s Ex Post Facto claim fails because SORNA is punitive neither in purpose nor effect); United States v. Holcombe, 883 F.3d 12, 18 (2d Cir. 2018); United States v. Billiot, 785 F.3d 1266, 1269-70 (8th Cir. 2015); United States v. White, 782 F.3d 1118, 1126-27 (10th Cir. 2015); United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9th 2012); United States v. Parks, 698 F.3d 1, 4-6 (1st Cir. 2012); United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011). 149 United States v. Juvenile Male, 590 F.3d 924, 941-42 (9th Cir. 2010), vac’d as moot, 564 U.S. 932, 933 (2011). 150 Id. 151, 564 U.S. 932, 933 (2011).

Id.

United States v. Elkins, 685 F.3d 1038, 1048 (9^th9th Cir. 2012), citing, (citing United States v. Juvenile Male, 670 F.3d 999 (9^th(9th Cir. 2012)). 152 Id. at 1048-49. 153 U.S. CONST.

Elkins, 683 F.3d at1048-49.

U.S. Const. amends. V, XIV.

. amends. V, XIV. 154 United States v. Williams, 553 U.S. 285, 304 (2008).

155 Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). Congressional Research Service 23 link to page 17 SORNA: A Legal Analysis of 18 U.S.C. § 2250 opportunity to prove they were not dangerous.156 Doe suffered no injury from the absence of a pre-registration hearing to determine his dangerousness, in the eyes of the Court, because the system required registration of all sex offenders, both those who were dangerous and those who were not.157 Connecticut Dep’t of Public Safety forecloses the assertion that offenders are entitled to a pre-registration “dangerousness” hearing; the relevant question under SORNA is prior conviction, not dangerousness.158 In Lambert v. California, the Court dealt with sufficiency of notice. There, the Court held invalid a city ordinance that required all felony offenders to register within five days of their arrival in the city.159 The Court explained that “[w]here a person did not know of the duty to register and where there was no proof of the probability of such knowledge, he may not be convicted consistently with due process.”160 Since “by the time that Congress enacted SORNA, every state had a sex offender registration law in place,”161 attempts to build on Lambert have been rejected, because the courts concluded that offenders knew or should have known of their duty to register.162 Suggestions that differences between state and federal requirements result in impermissible vagueness have fared no better.163 To qualify as a violation of substantive due process, a governmental regime must intrude upon a right “deeply rooted in our history and traditions,” or “fundamental to our concept of 156 Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003). 157 Id. at 7-8. 158 United States v. Ambert, 561 F.3d 1202, 1208 (11th Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).

Connecticut Dept. of Public Safety v. Doe, 538 U.S. 1 (2003).

Id. at 7-8.

United States v. Ambert, 561 F.3d 1202, 1208 (11^th Cir. 2009).

Cir. 2009). 159 Lambert v. California, 355 U.S. 225 (1957).

Id. at 229-30.

United States v. DiTomasso, 621 F.3d 17, 26 (1^st Cir. 2010).

160 Id. at 229-30. 161 Smith v. Doe, 538 U.S. 84, 90 (2003). A list of the citations to existing state sex offender registration laws is attached at the end of this report. 162 United States v. Hester, 589 F.3d 86, 92-393 (2d Cir. 2009) ("In Lambert“In Lambert, the Supreme Court stated: '‘Registration laws are common and their range is wide.... . . . But the present ordinance is entirely different. Violation of its provisions is unaccompanied by any activity whatever, mere presence in the city being the test. Moreover, circumstances which might move one to inquire as to the necessity of registration are completely lacking.'’ Like outour sister circuits, we find this last statement – regarding '‘circumstances which might move one to inquire as to the necessity of registration'’ – to be critical.")” (citing United States v. Whaley, 577 F.3d 254, 262 (5^th5th Cir. 2009); United States v. Gould, 568 F.3d 459, 468-69 (4^th4th Cir. 2009); United States v. Dixon, 551 F.3d 578, 584 (7^th7th Cir. 2009); United States v. Hinckley, 550 F.3d 926, 938 (10^th10th Cir. 2009); and United States v. May, 535 F.3d 912, 921 (8^th8th Cir. 2008))). See. See also United States v. Gagnon, 621 F.3d 30, 33 (1^st1st Cir. 2010); United States v. W.B.H., 664 F.3d 848, 852-60 (11^th11th Cir. 2011); United States v. Elkins, 683 F.3d 1039, 1049-50 (9^th9th Cir. 2012). 163 Cir. 2012).

United States v. Pendleton, 636 F.3d 78, 86 (3d Cir. 2011) ("Pendleton'“Pendleton’s federal duty to register under SORNA was not dependent upon his duty to register under Delaware law. A person of ordinary intelligence would not assume that as long as he or she complied with state law on a particular issue, there would be no risk of running afoul of federal law"law.”). See also United States v. Alsante, 812 F.3d 544, 547-48 (6^th6th Cir. 2016) ("“[T]he Due Process Clause does not offer convicted defendants at sentencing [for violation of § 2250] the same constitutional protections afforded defendants at a criminal trial."”); United States v. Elk Shoulder, 738 F3d 948, 955 (9^th9th Cir. 2012) (noting that state notice that the sex offender must register with state authorities is all the Due Process Clause demands for SORNA purposes). The Sixth Circuit in Felts expressed a possible due process concern that it was not required to address but one that might arise "“where an inconsistency between federal and non-complying state regimes would render it impractical, or even impossible, for an offender to register under federal law."” United States v. Felts, 674 F.3d 599, 605 (6^th(6th Cir. 2012). The affirmative defense in §18 U.S.C. § 2250(c) seems designed to address this concern. See supra “Affirmative Defense” section of this report. In any event, the Felts concern apparently no longer troubles the Sixth Circuit, see Willman v. Att’y Gen., 972 F.3d 819, 827 (6th Cir. 2020) (“A person of ordinary intelligence would know if he had been convicted of a sex offense, and he would know that being removed from his state sex offense registry – on its own – would not change whether he had been convicted. Accordingly, Willman’s vagueness claim is not plausible on its face.”); see also United States v. Burgee, 988 F.3d 1954, 1060 (8th Cir. 2021); United States v. Collazo, 984 F.3d 1308, 1325 (9th Cir. 2021). Congressional Research Service 24 SORNA: A Legal Analysis of 18 U.S.C. § 2250 constitutionally ordered liberty.”164 Perhaps because the threshold is so high, Section 2250 and SORNA have only infrequently been questioned on substantive due process grounds.165 Right to Travel “The ‘right to travel’ . . . embraces at least three different components. It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.”166 Section 2250, it has been contended, violates the right to travel because it punishes those who travel from one state to another yet fail to register, but not those who fail to register without leaving the state. The courts have responded, however, that the right must yield to compelling state interest in the prevention of future sex offenses.167 Cruel and Unusual Punishment The Eighth Amendment bars the federal government from inflicting “cruel and unusual punishment.”168 A punishment is cruel and unusual under the Eighth Amendment when it is grossly disproportionate to the offense.169 Section 2250’s 10-year maximum has survived the claim that is grossly disproportionate to the crime of failing to maintain current and accurate sex offender registration information.170 The courts have also declined to hold that SORNA’s registration regime itself violates the Eighth Amendment, either because they do not consider the requirements punitive or because they do not consider them grossly disproportionate.171 164 Washington v. Glucksberg, 521 U.S. 702, 727 (1997). 165Affirmative Defense.

Washington v. Glucksberg, 521 U.S. 702, 727 (1997).

See United States v. Ambert, 561 F.3d 1202, 1208-209 (11^th09 (11th Cir. 2009) (rejecting a substantive due process claim).

166 Saenz v. Roe, 526 U.S. 489, 500 (1999).

167 United States v. Holcombe, 883 F.3d 12, 18 (2d Cir. 2012); United States v. Shenandoah, 595 F.3d 151, 162-62 (3d Cir. 2010); United States v. Ambert, 561 F.3d 1202, 1209-10 (11^th Cir. 2009); cf.,, abrogated on other grounds, Reynolds v. United States, 565 U.S. 432 (2012); Ambert, 561 F.3d at 1209-10; cf. Bacon v. Neer, 631 F.3d 875, 878 (8^th8th Cir. 2011); see also Willman, 972 F.3d at 826 (“But those [SORNA] registration obligations do not burden a sex offender’s movement in a way that violates a person’s right to travel.” (collecting cases in accord)). 168 U.S. CONST Cir. 2011).

U.S. Const. amend. VIII.

. amend. VIII. 169 Graham v. Florida, 560 U.S. 48, 59 (2010).

170 United States v. Martin, 677 F.3d 818, 821-22 (8^th8th Cir. 2012). 171 Willman, 972 F.3d at 825 (“SORNA is not a punishment for purposes of the Ex Post Facto Clause. It follows, therefore, that SORNA is not a punishment for purposes of the Eighth Amendment either.”); United States v. Diaz, 967 F.3d 107 (2d Cir. 2020) (“Our precedent precludes the argument that sex offender registration and notification requirements are punitive, see [Doe v.] Pataki, 120 F.3d [1263,] 1285 ([2d Cir. 1997)], and the Supreme Court’s similar conclusion in Smith v. Doe[, 538 U.S 84, 105 (2003)] forecloses this Court’s ability to revisit the Pataki decision. 538 U.S. at 105. Accordingly, the district court correctly concluded that SORNA does not violate the … Eighth Amendment.”); Cir. 2012).

United States v. Under Seal, 709 F.3d 257, 263-66 (4^th4th Cir. 2013) (holding that SORNA'’s registration requirements do not constitute punishment); United States v. Juvenile Male, 670 F.3d 999, 1010 (9^th9th Cir 2012) ("“Given the high standard that is required to establish cruel and unusual punishment, we hold that SORNA'’s registration requirements do not violate the Eighth Amendment."”); cf., United States v. May, 535 F.3d 912, 920 (8^th8th Cir. 2008) (not punishment). Congressional Research Service 25 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Legislative Authority The most frequent constitutional challenge to SORNA and Section 2250 is that Congress lacked the constitutional authority to enact them. Some of these challenges speak to the breadth of Congress’s constitutional powers, such as those vested under the Tax and Spending Clause, the Commerce Clause, or the Necessary and Proper Clause. Others address contextual limitations on the exercise of those powers imposed by such things as the non-delegation doctrine or the principles of separation of powers reflected in the Tenth Amendment. Tenth Amendment The federal government enjoys only such authority as may be traced to the Constitution; the Tenth Amendment reserves to the states and the people powers not vested in federal government.172 Challengers of Congress’s legislative authority to enact SORNA or the Justice Department’s authority to prosecute failure to comply with its demands on Tenth Amendment grounds have had to overcome substantial obstacles. First, several of Congress’s constitutional powers are far reaching and SORNA appears within their grasp. Among them are the powers to regulate interstate and foreign commerce, to tax and spend for the general welfare, and to enact laws necessary and proper to effectuate the authority the Constitution provides.173 Second, although a particular statute may implicate the proper exercise of more than one constitutional power, only one is necessary for constitutional purposes.174 Third, “while SORNA imposes a duty on the sex offender to register, it nowhere imposes a requirement on the State to accept such registration.”175 Finally, until recently some courts have held that individual defendants lacked standing to contest the statutory validity on the basis of constitutional provisions designed to protect the institutional interests of governmental entities rather than to protect private interests. Standing Several earlier courts rejected SORNA challenges under the Tenth Amendment on the grounds that the defendants lacked standing. Standing refers to the question of whether a party in litigation is asserting or “standing” on his or her own rights or only upon those of another. At one time, there was no consensus among the lower federal appellate courts over whether individuals had standing to present Tenth Amendment claims.176 More specifically, at least two circuits had held 172 U.S. CONST. amend. X (“punishment).

U.S. Const. amend. X ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.").

U.S. Const”). 173 U.S. CONST. art. I, § 8, cls. 1, 3, 18 ("“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States ... To . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; .. . . . . And To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.").

”). 174 Cf., U.S. ConstCONST. art. I, § 8, cl. 18. 175 8, cl. 18.

United States v. White, 782 F.3d 1118, 1128 (10^th10th Cir. 2015) (quoting Kennedy v. Allera, 612 F.3d 261, 269 (4^th 4th Cir. 2010), and; citing United States v. Richardson, 754 F.3d 1143, 1146-47 (9^th9th Cir. 2014); United States v. Felts, 674 F.3d 599, 602 (6^th6th Cir. 2012); United States v. JonsonJohnson, 632 F.3d 912, 920 (5^th5th Cir. 2011); United States v. Guzman, 591 F.3d 83, 94 (2d Cir. 2010)).

176 United States v. Johnson, 632 F.3d 912, 919 (5^th5th Cir. 2011) ("“The First, Second, Third, Eighth, and Tenth Circuits have held that private parties do not having standing to bring such claims. The Seventh and Eleventh Circuits have permitted private parties to assert Tenth Amendment claims.").

United States v. Shenandoah, 595 F.3d 151, 161-62 (3d Cir. 2010) ("”). Congressional Research Service 26 SORNA: A Legal Analysis of 18 U.S.C. § 2250 that defendants convicted under Section 2250 lacked standing to challenge their convictions on Tenth Amendment grounds.177 Those courts, however, did not have the benefit of the Supreme Court’s Bond and Reynolds decisions. In Bond, the Court pointed out that a defendant who challenges the Tenth Amendment validity of the statute under which she was convicted “seeks to vindicate her own constitutional rights . . . . The individual, in a proper case, can assert injury from governmental action taken in excess of the authority that federalism defines. Her rights in this regard do not belong to the State.”178 In Reynolds, the Court implicitly recognized the defendant’s standing when, at his behest, it held that SORNA did not apply to pre-enactment convictions until after the Attorney General had exercised his delegated authority.179 Yet the fact that a defendant’s Tenth Amendment challenge may be heard does not mean it will succeed.180 Spending for the General Welfare “The Congress shall have Power To lay and collect Taxes . . . to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .”181 “Objectives not thought to be within Article I’s enumerated legislative fields, may nevertheless be attained through the use of the spending power and the conditional grant of federal funds.”182 In the past, the Supreme Court has described the limits on Congress in general terms: [First,] the exercise of the spending power must be in pursuit of the general welfare . . . Second . . . if Congress desires to condition the States’ receipt of federal funds, it must do so unambiguously . . . . Third . . . conditions on federal grants . . . [must be] []related to the federal interest in particular national projects or programs. . . . Finally. . . other constitutional provisions may provide an independent bar to the conditional grant of federal funds.183 Moreover, at the end of its 2011 term in National Federation of Business v. Sebelius, seven members of a divided Court found that the power of the Spending Clause may not be exercised to 177 United States v. Shenandoah, 595 F.3d 151, 161-62 (3d Cir. 2010), abrogated by Reynolds v. United States, 432 U.S. 432 (2012) (“Shenandoah argues that SORNA is unconstitutional because it compels New York law enforcement to accept registrations from federally-mandated sex offender programs in violation of the Tenth Amendment... . . . . . We need not tarry long on this argument, because Shenandoah lacks standing to raise this issue."”); United States v. Zuniga, 579 F.3d 845, 851 (8^th8th Cir. 2009). 178 Cir. 2009).

Bond v. United States, 564 U.S. 211, 220 (2011); see also United States v. Felts, 674 F.3d 599, 607 (6^th6th Cir. 2012) ("(“The United States counters that Felts lacks standing to assert SORNA'’s alleged violation. This is no longer an accurate statement of law. The United States'’ brief was filed on June 6, 2011, ten days before the Supreme Court decided Bond... . . . . An individual can assert that the enforcement of a law violates the Tenth Amendment, particularly when a defendant has a significant liberty interest at stake. Because Felts was prosecuted for violating SORNA, he has standing to challenge the act for being enforced in violation of the Tenth Amendment.").

Reynolds v. United States, 132 S. Ct. 975, 984 (2012)”). 179 Reynolds, 565 U.S. at 442-43; see also United States v. Knutson, 680 F.3d 1021, 1023 (8^th8th Cir. 2012) ("“This court had previously held that pre-Act offenders lack standing to challenge SORNA. However, after the parties filed their briefs, the Supreme Court ruled that pre-Act offenders have standing to challenge SORNA under the non-delegation doctrine. Reynolds, 132 S. Ct. at 984.").

U.S. Const. art. I, §8, cl. 1.

South Dakota v. Dole, 483 U.S. 203, 207 (1987).

Id. at 207-208.

National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566, 2601-607 (Roberts, Ch.”). 180 White, 782 F.3d at 1128 (“We join all of the federal circuits to have considered this issue in holding that SORNA does not violate the Tenth Amendment.”) (citing cases from the Ninth, Eighth, Fifth, and Second Circuits). 181 U.S. CONST. art. I, § 8, cl. 1; see generally Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. DOC. NO, 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C1-2/ALDE_00001055/. 182 South Dakota v. Dole, 483 U.S. 203, 207 (1987). 183 Id. at 207-08. Congressional Research Service 27 SORNA: A Legal Analysis of 18 U.S.C. § 2250 coerce state participation in a federal program.184 Congress may use the spending power to induce state participation; it may not present the choice under such circumstances that a state has no realistic alternative but to acquiesce.185 SORNA establishes minimum standards for the state sex offender registries and authorizes the Attorney General to enforce compliance by reducing by up to 10% the funds a non-complying state would receive in criminal justice assistance funds.186 Some defendants have suggested that this impermissibly commandeers state officials to administer a federal program and therefore exceeds Congress’s authority under the Spending Clause. Generally, while Congress may encourage state participation in a federal program, it is not constitutionally free to require state legislators or executive officials to act to enforce or administer a federal regulatory program.187 To date, the federal appellate courts have held that SORNA’s reduction in federal law enforcement assistance grants for a state’s failure to comply falls on the encouragement, rather than the directive, side of the constitutional line.188 The fact that most states do not feel compelled to bring their systems into full SORNA compliance may lend credence to that assessment.189 Commerce Clause “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”190 The Supreme Court explained in Lopez, and again in Morrison, that Congress’s Commerce Clause power is broad but not boundless. 184 Nat’l Fed. of .Indep. Bus. v. Sebelius, 567 U.S. 519, 575-86 (2012) (Roberts, Ch. J. joined by Breyer and Kagan, JJ.); id. at 671-89 (Scalia, J., dissenting, joined by Kennedy, Thomas, and Alito, JJ.). 185 Cf. id. at 581-82 (Roberts, Ch. J.) (“JJ.); 132 S. Ct. at 2656-67 (Scalia, J. with Kennedy, Thomas, and Alito, JJ.) (dissenting).

Cf., id. at 2604-605 (Roberts, Ch.J.)("It is easy to see how the Dole Court could conclude that the threatened loss of less than half of one percent of South Dakota'’s budget left that State with a 'prerogative'‘prerogative’ to reject Congress'’s desired policy, '‘not merely in theory but in fact.'’ The threatened loss of over 10 percent of a State'’s overall budget, in contrast, is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion."”); id. at 2659676 (Scalia, J.)(dissenting)(", dissenting) (“[W]hile Congress may seek to induce States to accept conditional grants, Congress may not cross the '‘point at which pressure turns into compulsion, and ceases to be inducement."’”). See generally CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and Analysis, by [author name scrubbed].

42 U.S.C. §16925(a).

Kenneth R. Thomas. 186 34 U.S.C. § 20925(a). 187 New York v. United States, 505 U.S. 144, 175-76 (1992); Printz v. United States, 521 U.S. 898, 935 (1997) ("“We held in New York that Congress cannot compel the States to enact or enforce a federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the States'’ officers directly.").

”). 188 United States v. Felts, 674 F.3d 599, 608 (6^th6th Cir. 2012) ("“SORNA does not fall under the rubric of PrintzPrintz, but rather relies on Congress’s spending power. Failure to implement SORNA results in a loss of 10% of federal funding under [the law enforcement assistance program]. Conditioning of funds in this manner is appropriate under South Dakota v. Dole (stating that Congress'’s power to condition the receipt of federal funds under the spending power is valid so long as (1) the spending/withholding is in the pursuit of the general welfare; (2) the conditional nature is clear and unambiguous; (3) the condition is rationally related to the purpose of the federal interest, program, or funding; and (4) the conduct required to comply with the condition is not barred by the constitution itself)."”). SeeSee also United States vv. White, 782 F.3d 1118, 1127-28 (10^th10th Cir. 2015); United States v. Smith, 655 F.3d 839, 848 (8^th8th Cir. 2011); United States v. Johnson, 632 F.3d 912, 920 (5^th5th Cir. 2011); Kennedy v. Allera, 612 F.3d 261, 268-70 (4^th4th Cir. 2010); United States v. Guzman, 591 F.3d 83, 95 (2d Cir. 2010).

189 The Justice Department indicates that fifteeneighteen states are now in substantial compliance with SORNA requirements, Jurisdictions That Have Substantially Implemented SORNA. U.S. Department of Justice, Office of Justice Programs, Office of Sex Offender Sentencing, Monitoring, Apprehending, Registration, and Tracking (SMART), SORNA Implementation Status, available at https://smart.gov/sorna-map.htm. 190 U.S. CONST. art. I, § 8, cl. 3; see generally Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. DOC. NO, 112-9, https://constitution.congress.gov/browse/essay/artI-S8-C3-1-1/ALDE_00001057/ Congressional Research Service 28 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Modern Commerce Clause jurisprudence has identified three broad categories of activity that Congress may regulate under its commerce power. First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities. Finally, Congress’ commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce . . . i.e., those activities that substantially affect interstate commerce.191 The lower federal appellate courts have rejected Commerce Clause attacks on Section 2250 in the interstate travel cases, because there they believe Section 2250 “fits comfortably with the first two Lopez prongs[, i.e. the regulation of (1) the “channels” of interstate commerce and (2) the “instrumentalities” of interstate commerce].”192 They have also rejected Commerce Clause attacks on SORNA in intrastate cases based on the strength of the Necessary and Proper Clause: Requiring sex offenders to update their registrations due to intrastate changes of address or employment status is a perfectly logical way to help ensure that states will more effectively be able to track sex offenders when they do cross state lines. To the extent that §16913 regulates solely intrastate activity, its means are reasonably adapted to the attainment of a legitimate end under the commerce power and therefore proper.193 Necessary and Proper The Supreme Court in Comstock described the breadth of Congress’s authority under the Necessary and Proper Clause in the context of another Walsh Act provision. The Walsh Act authorizes the Attorney General to hold federal inmates beyond their release date to initiate federal civil commitment proceedings for the sexually dangerous.194 Comstock and others questioned application of the statute on the grounds that it exceeded Congress’s legislative authority under the Commerce and Necessary and Proper Clauses.195 191, available at http://www.ojp.usdoj.gov/smart/newsroom_jurisdictions_sorna.htm.

U.S. Const. art. I, §8, cl. 3.

United States v. Morrison, 529 U.S. 598, 608-60909 (2000) (citing inter alia United States v. Lopez, 514 U.S. 549, 558-59 (1995)). Of late, seven MembersJustices of the Court have explained that the Commerce Clause does not authorize Congress to punish those who elect not to engage in commerce, National Federation of Independent Business. See Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2591 567 U.S. 519, 558 (Roberts, Ch. J. joined by Breyer and Kagan, JJ.) ("“The individual mandate forces individuals into commerce precisely because they elected to refrain from commercial activity. Such a law cannot be sustained under a clause authorizing Congress to '‘regulate Commerce.'"); 132 S. Ct. at 2644’”); id. at 649 (Scalia, J. with, dissenting, joined by Kennedy, Thomas, and Alito, JJ.) (dissenting) ("“But that failure—that abstention from commerce—is not '‘Commerce.'’ To be sure, purchasing insurance is 'Commerce'; ‘Commerce’; but one does not regulate commerce that does not exist by compelling its existence.").

”). 192 United States v. Coleman, 675 F.3d 615, 620 (6^th6th Cir. 2012) (citing United States v. George, 625 F.3d 1124, 1129-130 (9^th Cir. 2010);inter alia United States v. Vasquez, 611 F.3d 325, 330-31 (7th325, 330-31 (7^th Cir. 2010); United States v. Shenandoah, 595 F.3d 151, 160 (3d Cir. 2010); United States v. Guzman, 591 F.3d 83, 89-92 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 259-61 (5^th5th Cir. 2009); United States v. Gould, 568 F.3d 459, 470-75 (4^th4th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1210-212 (11^th12 (11th Cir. 2009); United States v. Lawrence, 548 F.3d 1329, 1337 (10^th10th Cir. 2008); and United States v. May, 535 F.3d 912, 911-22 (8^th8th Cir. 2008)). See also United States v. Bollinger, 798 F.3d 201, 217 (4th Cir. 2015) (“This Court has concluded that SORNA is constitutional because it regulates the use of the channels and instrumentalities of interstate commerce.”); United States v. Manning, 786 F.3d 684, 685-86 (8th Cir. 2015); United States v. White, 782 F.3d 1118, 1123-26 (10^th10th Cir. 2015); United States v. Parks., 698 F.3d 1, 6-7 (1^st 1st Cir. 2012). 193Cir. 2012).

United States v Thompson, 811 F.3d 717, 723-25 (5^th5th Cir. 2016); United States v. Pendleton, 636 F.3d 78, 87-8 88 (3d Cir. 2011) (quoting Guzman, 591 F.3d at 90-1 and91; citing Vasquez, 611 F.3d at 330; Ambert, 561 F.3d at 1211-21212; and United States v. Howell, 552 F.3d 709, 717 (8^th8th Cir. 2009)). 194 18 U.S.C. § 4248. 195 United States v. Comstock, 560 U.S. 126, 132 (2010); see generally, Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. DOC. NO. 112-9 (discussing the Necessary and Proper Clause), https://constitution.congress.gov/browse/essay/artI-S8-C18-1/ALDE_00001242/ Congressional Research Service 29 SORNA: A Legal Analysis of 18 U.S.C. § 2250 The Court pointed out that the Necessary and Proper Clause has long been understood to empower Congress to enact legislation “rationally related to the implementation of a constitutionally enumerated power.”196 Moreover, be the chain clear and unbroken, the challenged statute need not necessarily be directly linked to a constitutionally enumerated power.197 The Comstock “statute [18 U.S.C. § 4248] is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws [(to carry into effect its Commerce Clause power for instance)], to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others.”198 The Court, however, warned that its conclusion depended on several factors specific to the case before it.199 Acting on this suggestion, the Fifth Circuit, sitting en banc, concluded, erroneously according to the Supreme Court, that SORNA, as applied to Kebodeaux, rested beyond Congress’s legislative reach.200 Kebodeaux had been convicted by a military court for having sexual relations with a consenting fifteen-year-old while he was a twenty-one-year-old airman. He was sentenced to six months and given a bad conduct discharge in 1999. He registered as a sex offender with Texas authorities in 2007. He was convicted for violating Section 2250 in 2008, when he failed to report that he had relocated from El Paso to San Antonio.201 The Constitution empowers Congress to make rules for the governing and regulation of the armed forces.202 It also vests Congress with broad implementing authority to enact legislation necessary and proper to carry into effect this military governance power and the other powers conveyed by the Constitution.203 The Fifth Circuit believed that, unlike the Comstock statute, the application of SORNA was insufficiently proximate to a federal custodial interest and was too sweeping in its conceptual foundation (“[t]hat reasoning opens the door . . . to congressional power over anyone who was ever convicted of a federal crime of any sort”).204 196 Id. at 133-34 (citing, Cir. 2009)).

18 U.S.C. §4248.

United States v. Comstock, 560 U.S. 126, 132 (2010).

Id. at 133-34, citing among others, McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 421 (1810), and; Gonzalez v. Raich, 545 U.S. 1, 22 (2005)). 197 Id. at 148 (“).

Id. at 148 ("[W]e must reject respondents'’ argument that the Necessary and Proper Clause permits no more than a single step between an enumerated power and an Act of Congress").

Id. at 149.

Id. (".”). 198 Id. at 149. 199 Id. (“We take these five considerations together. They include (1) the breadth of the Necessary and Proper Clause, (2) the long history of federal involvement in this arena, (3) the sound reasons for the statute'’s enactment in light of the Government'Government’s custodial interest in safeguarding the public from dangers posed by those in federal custody, (4) the statute'statute’s accommodation of state interests, and (5) the statute'’s narrow scope. Taken together, these considerations lead us to conclude that the statute is a "‘necessary and proper"’ means of exercising the federal authority that permits Congress to create federal criminal laws... ").

. . . . ”). 200 United States v. Kebodeaux, 687 F.3d 232, 253-54 (5^th5th Cir. 2012), rev’d, 570 U.S. 387 (2013) Cir. 2012) (Congress lacks the legislative authority to require under SORNA "“a former federal sex offender to register an intrastate change of address after he has served his sentence and has already been unconditionally released from prison and the military.").

”). 201 United States v. Kebodeaux, 647 F.3d 137, 138-39 (5^th5th Cir. 2011), vac'vac’d for reh'’g en banc, 647 F.3d 605 (5^th 5th Cir. 2011), rev’d, 570 U.S. 387 (2013). 202 U.S. CONST. art. I, § 8, cl. 14 (“2011), rev'd, 133 S. Ct. 2496 (2013).

U.S. Const. art. I, §8, cl. 14 ("The Congress shall have Power ... . . To make Rules for the Government and Regulation of the land and naval Forces."”). Some of the analysis that follows was borrowed from a Kebodeaux legal sidebarCRS Legal Sidebar, CRS, SORNA Clears Constitutional Hurdle.

203 U.S. ConstCONST. art. I, § 8, cl. 18 ("“The Congress shall have Power ... . . To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.").

”). 204 Kebodeaux, 687 F.3d at 244-45 ("“In summary, even taking into account '‘the breadth of the Necessary and Proper Clause,' Comstock, 130 S. Ct. at 1965, SORNA' Congressional Research Service 30 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Justice Breyer, the author of the Supreme Court’s Kebodeaux majority opinion, provided a two-fold response.205 First, by operation of SORNA’s predecessor, the Wetterling Act, Kebodeaux’s registration requirement arose proximate to his release from federal custody. “[A]s of the time of Kebodeaux’s offense, conviction and release from federal custody, these Wetterling Act provisions applied to Kebodeaux and imposed upon him registration requirements very similar to those that SORNA later imposed.”206 Second, “[n]o one here claim[ed] that the Wetterling Act, as applied to military sex offenders like Kebodeaux, falls outside the scope of the Necessary and Property Clause. And it is difficult to see how anyone could persuasively do so.”207 Perhaps the same might be said of federal sex offenses enacted under Congress’s enumerated powers other than the military clauses. Yet Chief Justice Roberts in his Kebodeaux concurrence asserted that, “[t]he fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict’s purely intrastate conduct.”208 Nevertheless, a subsequent circuit court opinion concluded that Congress’s authority under the Necessary and Proper Clause extends to a defendant convicted of a Commerce Clause-based federal offense who was never unconditionally released from federal supervision.209 There, the U.S. Court of Appeals for the Tenth Circuit acknowledged the Kebodeaux concurring views of Chief Justice Roberts and Justice Alito, but observed that, “for our purposes, the majority opinion binds us, and its analysis does not confine SORNA’s constitutionality to applications involving only the Military Regulation Clause. Nothing in the majority opinion isolates the Military Regulation Clause as the sole foundation of congressional authority in support of SORNA.”210 Clause,’ Comstock, 130 S. Ct. at 1965, SORNA’s registration requirements and criminal penalty for failure to register as a sex offender, as applied to those, like Kebodeaux, who had already been unconditionally released from federal custody or supervision at the time Congress sought to regulate them, are not '‘rationally related'’ or '‘reasonably adapted' ’ to Congress'’s power to criminalize federal sex offenses to begin with. The statute'’s regulation of an individual, after he has served his sentence and is no longer subject to federal custody or supervision, solely because he once committed a federal crime, (1) is novel and unprecedented despite over 200 years of federal criminal law, (2) is not "‘reasonably adapted"adapted’ to the government'’s custodial interest in its prisoners or its interest in punishing federal criminals, (3) is unprotective of states'’ sovereign interest over what intrastate conduct to criminalize within their own borders, and (4) is sweeping in the scope of its reasoning.").

”). 205 United States v. Kebodeaux, 133 S. Ct. 2496570 U.S. 387 (2013). 206 Id. at 393. 207 Id. at 393-94. (2013).

Id. at 2502.

Id. See also United States v. Coppock, 765 F.3d 921, 924-25 (8^th8th Cir. 2014); United States v. Brunner, 726 F.3d 299, 303 (2d Cir. 2013).

Kebodeaux, 133 S. Ct. at 2507 208 Kebodeaux, 570 U.S. at 400 (Roberts, Ch. J., concurring); Justice Alito also concurred only in the judgment, idid. at 2508403 (Alito, J., concurring).

209 United States v. Brune, 767 F.3d 1009, 1016-17 (10^th10th Cir. 2014). 210 Id. See also United States v. Thompson, 811 F.3d 717, 723 & n.9 (5th Cir. 2016) (“He claims that the Necessary and Proper Clause of the U.S. Constitution does not authorize Congress to criminalize his ‘purely intrastate conduct’—namely, relocating from one city in Texas to another city in Texas without updating his sex offender registration. According to Thompson, Congress may only criminalize a sex offender’s intrastate conduct if the defendant either (1) ‘served in the armed forces’ or (2) committed an offense on ‘federal property.’ Thompson does not fall into either of these categories. Thus, claims Thompson, the district court should have dismissed the indictment…. Thompson’s constitutional challenge is meritless. The Courts of Appeals have repeatedly upheld SORNA’s registration and penalty provisions under the Necessary and Proper Clause, even when the defendant neither served in the military, nor committed an offense or lived on federal property, nor moved within interstate or foreign commerce.”) (collecting cases). Congressional Research Service 31 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Separation of Powers: Non-Delegation The first section of the first article of the Constitution declares that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”211 This language means that Congress “may not transfer to another branch ‘powers which are strictly and exclusively legislative.’”212 This non-delegation doctrine, however, does not prevent Congress from delegating the task of filling in the details of its legislative handiwork, as long as it provides “intelligent principles” to direct the effectuation of its legislative will.”213 In Reynolds, the Supreme Court read SORNA to “require[] the Attorney General to apply SORNA to all pre-Act offenders as soon as feasible.”214 The question later in Gundy was whether “Congress ma[de] an impermissible delegation when it instructed the Attorney General to apply SORNA’s registration requirements to pre-Act offenders as soon as feasible?”215 For a majority of the Court, “under [the] Court’s long-established law, that question is easy, its answer is no.”216 Similarly, the U.S. Court of Appeals for the Second Circuit concluded “that the Secretary [of Defense]’s discretion in designating certain military offenses as sex offenses under § 20911(5)(A)(iv) [of SORNA] has been clearly and intelligibly limited by Congress.”217 211 U.S. CONST. art. I, § 1; see generally, Cong. Research Serv., The Constitution of the United States of America: Analysis and Interpretation, S. DOC. NO. 112-9, https://constitution.congress.gov/browse/essay/artI-S1-1-1/ALDE_00000009/. 212 Gundy v United States, 139 S. Ct. 2116, 2123 (2019) (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 42-43 (1825)); see also Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935) (“Congress manifestly is not permitted to abdicate or to transfer to others the essential legislative functions with which it is [constitutionally] vested.”); A.L.A. Cir. 2014).

Id.

U.S. Const. art. I, §1.

Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). See also A.L.A Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935).

213 Gundy, 139 S. Ct. at 2123 (“So we have held, time and again, that a statutory delegation is constitutional as long as Congress ‘lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority is directed to conform.’” (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989))); see also Hampton & Co. v. United States, 276 U.S. 294, 409 (1928) ("“If Congress shall lay down by legislative act an intelligible principle to which the person or body authorized to [perform the delegated task] is directed to conform, such legislative action is not a forbidden delegation of legislative power."”); see also AmericanAm. Power Co. v. SEC, 329 U.S. 90, 105 (1946) ("“The legislative process would frequently bog down if Congress were constitutionally required to appraise before-hand the myriad situations to which it wishes a particular policy to be applied and to formulate specific rules for each situation. Necessity therefore fixes a point beyond which it is unreasonable and impracticable to compel Congress to prescribe detailed rules; it then becomes constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority."”); Whitman v. AmericanAm. Trucking Ass'’ns, Inc., 531 U.S. 457, 474-75 (2001) ("“The scope of discretion §109(b)(1) allows is in fact well within the outer limits of our nondelegation precedents. In the history of the Court we have found the requisite "‘intelligible principle"’ lacking in only two statutes, one of which provided literally no guidance for the exercise of discretion, and the other of which conferred authority to regulate the entire economy on the basis of no more precise a standard than stimulating the economy by assuring '‘fair competition.' ..’. . . . [W]e have '‘almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law.’”). 214 Reynolds v. United States, 565 U.S. 432, 442-43 (2012) (emphasis added). 215 Gundy, 139 S. Ct. at 2129. 216 Id. Justice Kagan wrote the opinion for the Court joined by three colleagues; Justice Alito concurred in the judgment, id. at 2132 (“Because I cannot say that the statute lacks a discernible standard that is adequate under the approach this Court has taken for many years, I vote to affirm.”); Justice Gorsuch, joined by the Chief Justice and Justice Thomas, dissented, id. at 2131. Justice Kavanaugh took no part, id. at 2116. 217 United States v. Mingo, 964 F.3d 134, 138-39 (2d Cir. 2020) (rejecting nondelegation doctrine argument). Congressional Research Service 32 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Attachments 18 U.S.C. § 2250 (text) Failure to register (a) In General.-Whoever- (1) is required to register under the Sex Offender Registration and Notification Act; (2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act 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 the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both. (b) International Travel Reporting Violations.-Whoever- (1) is required to register under the Sex Offender Registration and Notification Act (42 U.S.C. §§16901 et seq.) [now 34 U.S.C. §§ 20901et sec.]; 1 (2) knowingly fails to provide information required by the Sex Offender Registration and Notification Act relating to intended travel in foreign commerce; and (3) engages or attempts to engage in the intended travel in foreign commerce; shall be fined under this title, imprisoned not more than 10 years, or both. (c) Affirmative Defense.-In a prosecution for a violation under subsection (a) or (b), it is an affirmative defense that- (1) uncontrollable circumstances prevented the individual from complying; (2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and (3) the individual complied as soon as such circumstances ceased to exist. (d) Crime of Violence.- (1) In general.-An individual described in subsection (a) or (b) who commits a crime of violence 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 shall be imprisoned for not less than 5 years and not more than 30 years. (2) Additional punishment.-The punishment provided in paragraph (1) shall be in addition and consecutive to the punishment provided for the violation described in subsection (a) or (b). Principal State SORNA Statutes (citations) ALA. CODE §§ 15-20a-1 to 15-20a-48; ALASKA STAT. §§ 12.63.101 to 12.63.100; ARIZ. REV. STAT. ANN. §§ 13-3821 to 13-3829; ARK. CODE ANN. §§ 12-12-901 to 12-12-930; CAL. PENAL CODE §§ 290 to 290.94; COLO. REV. STAT. ANN. §§ 16-22-101 to 16-22-115 (Millard v. Rankin, 265 F. Supp. 3d 1211 (D. Colo. 2017) (holding unconstitutional as applied)); CONN. GEN. STAT. ANN. §§ 54-250 to 54-261; DEL. CODE ANN. tit. 11, §§ 4120 to 4123; FLA. STAT. ANN. §§ 943.0435 to 943.0436; Congressional Research Service 33 SORNA: A Legal Analysis of 18 U.S.C. § 2250 GA. CODE ANN. §§ 42-1-12 to 42-1-19; HAW. REV. STAT. §§ 846E-1 to 846E-10; IDAHO CODE §§ 18-8301 to 18-8331; 730 ILL. COMP. LAWS ANN. §§ 150/1 to 150/12; IND. CODE ANN. §§ 11-8-8-0.2 to 11-8-8-23; IOWA CODE ANN. §§ 692a.101 to 692a.130; KAN. STAT. ANN. § 22-4901 to 22-4913; KY. REV. STAT. ANN. §§ 17.500 to 17.580; LA. REV. STAT. ANN. §§ 15:540 to 15:553; ME. REV. STAT. ANN. tit. 34-A, §§ 11201 to 11256; MD. CODE ANN. CRIM. PRO. §§ 11-701 to 11-727; MASS. GEN. LAWS ANN. ch. 6, §§ 178c to 178q; MICH. COMP. LAWS ANN. §§ 28.721 to 28.735 (Doe #1-5 v. Snyder, 834 F.3d 696 (6th Cir. 2016) (holding retroactive application unconstitutional)); MINN. STAT. ANN. §§ 243.166 to 243.167; MISS. CODE ANN. §§ 45-33-21 to 45-33-63; MO. ANN. STAT. §§ 589.400 to 589.425; MONT. CODE ANN. §§ 46-23-501 to 46-23-520; NEB. REV. STAT. §§ 29-4001 to 29-4014; NEV. REV. STAT. §§ 179d.010 to 179d.850; N.H. REV. STAT. ANN. § 651-B:1 to 651-B:12; N.J. STAT. ANN. §§ 2C:7-1 to 2C:7-23 (In re C.K. 233 N.J. 44, 182 A.3d 917 (N.J. 2020) (holding lifelong registration requirement for juveniles unconstitutional)); N.M. STAT. ANN. §§ 29-11a-1 to 29-211a-10; N.Y. CORR. LAW §§ 168 to 168-W; N.C. GEN. STAT. §§ 14-208.5 to 14-208.45; N.D. CENT. CODE §§ 12.1-32-15; OHIO REV. CODE ANN. §§ 2950.01 to 2950.99 (In re Bruce S., 983 N.E.2d 350 (Ohio 2012) (holding retroactive application unconstitutional)); OKLA. STAT. ANN. tit. 57 §§ 581 to 590.1; OR. REV. STAT. §§ 163a.005 to 163a.235; 42 PA. STAT. ANN. 9799.10 to 9799.75 (Pennsylvania v. Wood, 208 A.3d 131 (Pa. Super. 2019) and T.S. v. Pa. State Police, 231 A.3d 103 (Pa. Commw. 2020) (holding retroactive application unconstitutional)); R.I. GEN. LAWS §§ 11-37.1-1 to 11-37.1-21; S.C. CODE ANN. §§ 23-3-400 to 23-3-555; S.D. COD. LAWS ANN. §§ 22-24b-1 to 22-24b-37; TENN. CODE ANN. §§ 40-39-201 to 40-39-218 (Doe v. Lee, 518 F. Supp. 3d 1157 (M.D. Tenn.) (holding retroactive application unconstitutional); TEX. CODE OF CRIM. PRO. arts. 62.001 to 62.408; UTAH CODE ANN. §§ 77-41-101 to 77-41-113; VT. STAT. ANN. tit. 13, §§ 5401 to 5416; VA. CODE ANN. §§ 9.1-900 to 9.1-923 WASH. REV. CODE ANN. §§ 9A.44.128 to 9A.44.148; W. VA. CODE §§ 15-12-1 to 15-12-10; WIS. STAT. ANN. §§ 301.45 to 301.50; WYO. STAT. §§ 7-19-301 to 7-19-310. Congressional Research Service 34 SORNA: A Legal Analysis of 18 U.S.C. § 2250 Author Information Charles Doyle Senior Specialist in American Public Law Disclaimer This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material. Congressional Research Service R42692 · VERSION 10 · UPDATED 35 applying the law.'").

United States v. Goodwin, 717 F.3d 511, 516 (7^th Cir. 2013) (quoting American Power Co., 329 U.S. at 105 ("A delegation is 'constitutionally sufficient if Congress clearly delineates [1] the general policy, [2] the public agency which is to apply it, and [3] the boundaries of this delegated authority.' Here, all three requirements are met.")); United States v. Fernandez, 710 F.3d 847, 849-50 (8^th Cir. 2013) ("SORNA's broad policy statement that it was designed 'to protect the public from sex offenders and offenders against children' [is] 'sufficient to provide an intelligible principle for delegation.'"). See also United States v. Cooper, 750 F.3d 263, 270-72 (3d Cir. 2014); United States v. Parks, 698 F.3d 1, 7-8 (1^st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6^th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-3 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 263-64(5^th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212-214 (11^th Cir. 2009).