The Hon. Lynn S. Adelman, United States District Court 

for the Eastern District of Wisconsin, sitting by designation.

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1786

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DONALD LEACH,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

No. 3:09-CR-00070—Robert L. Miller, Jr., Judge.

ARGUED OCTOBER 18, 2010—DECIDED MAY 3, 2011

Before POSNER and WOOD, Circuit Judges, and ADELMAN,

District Judge.



WOOD, Circuit Judge. Donald Leach moved from

Indiana to South Carolina in late 2008 without promptly

notifying government officials in either state. This would

be unremarkable if Leach had not been convicted of a
2 No. 10-1786

sex offense in 1990, but he had. That conviction triggered

a requirement pursuant to the Sex Offender Registration

and Notification Act (“SORNA”), 18 U.S.C. § 2250(a), to

register with Indiana and South Carolina authorities

when he moved across state lines. Unbeknownst to

Leach, an anonymous caller reported to Indiana officials

that Leach had moved out of state shortly after his departure. In February 2009, Leach tardily passed the same

information along to the Indiana child support enforcement office. At no time did he register with the

authorities in South Carolina. The following week, a

deputy United States Marshal and a local officer

arrested Leach, who was then returned to Indiana, where

he was indicted for knowingly failing to register as a

sex offender after traveling in interstate commerce in

violation of SORNA. Leach moved to dismiss his indictment, arguing that SORNA violates the Ex Post Facto

Clause of the United States and Indiana Constitutions. The

district court denied Leach’s motion to dismiss, and

Leach entered a conditional guilty plea while preserving

his right to appeal that sole issue. We find no

ex post facto violation and affirm the judgment of the

district court.

I

The material facts in this case are not disputed. Donald

Leach was convicted of child molestation, a Class C felony

under Indiana law, on April 11, 1990. Just before his

release from prison in 1994, Indiana’s first sex offender

registration statute went into effect. Although the state
No. 10-1786 3

law obliged Leach to register upon his release from

prison, he failed to register at that time. In 2004, Leach

was again released from an Indiana prison on an

unrelated theft conviction. At that time, Leach signed

State Form 46656, “Notification of Requirement to

Register with Law Enforcement as Sex/Violent Offender.” He registered that year with the Wabash

County Sheriff’s Department. In 2007, he signed a

similar form reiterating Indiana’s registration requirements and specifying that if he changed his residence

he would be required to register in his new county of

residence within three working days. On September 9,

2008, Leach registered again with the Wabash County

Sheriff’s sex offender registration office. When he moved

to South Carolina later that year, however, Leach failed

to update his registration with Indiana authorities or

register in South Carolina.

On July 27, 2006, Congress passed SORNA “to protect

the public from sex offenders” by establishing a “comprehensive national system for the registration of those

offenders” as part of the Adam Walsh Child Protection

and Safety Act of 2006. See 42 U.S.C. § 16901. SORNA

imposes a federal obligation on all sex offenders to

register in each jurisdiction where he resides, works,

and goes to school. § 16913(a). (We understand this to

require registration in each of these places, if they are

different; it would make no sense to think that registration is necessary only if all three happen to be in the

same jurisdiction.) The statute makes it a federal crime

for any person who is required to register and travels

in interstate commerce knowingly to fail to register or
4 No. 10-1786

update a registration. 18 U.S.C. § 2250(a). The government charged Leach for a knowing failure to register

and update his registration after traveling in interstate

commerce from January 6, 2009, to February 20, 2009.

Leach conditionally pleaded guilty to the single-count

indictment and the district court imposed a 27-month

term of imprisonment and three years of supervised

release. This appeal followed.

II

A

As a preliminary matter, the district court correctly

concluded that venue was proper in the Northern

District of Indiana even though Leach was arrested in

South Carolina. Some may find this surprising, since the

Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy

and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed. . . .”

U.S. CONST. amend. VI. For purposes of SORNA, however, a sex offender violates the statute only when he

travels across state lines and fails to register. See Carr v.

United States, 130 S. Ct. 2229, 2240 (2010) (observing that

the “act of travel” is more than a “jurisdictional predicate” for § 2250, it is “the very conduct at which

Congress took aim”). Federal law says that any offense

“begun in one district and completed in another, or

committed in more than one district,” may be prosecuted

“in any district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a). SORNA re-
No. 10-1786 5

quired Leach to update his registration with Indiana

authorities when he left the state, see § 16913(c), and

register with South Carolina authorities when he established a residence there, see § 16913(a). Venue was

proper in Indiana, as it would have been in South

Carolina if the government had opted to prosecute

there. See United States v. Howell, 552 F.3d 709, 718 (8th

Cir. 2009).

B

Leach spends considerable effort arguing that SORNA

violates the Ex Post Facto Clause of the Indiana Constitution. In support, he relies on the Indiana Supreme

Court’s recent opinion invalidating portions of the

Indiana sex offender registration statute on state constitutional grounds. See Wallace v. State, 905 N.E.2d 371

(Ind. 2009). But the question before us is not whether

Indiana has adopted a compliant registration system (an

issue relating only to its entitlement to certain federal

funds, see Carr, 130 S. Ct. at 2232), nor is it whether

SORNA—a federal statute—“complies” with the law of

any particular state. The Supremacy Clause establishes

that state constitutional provisions cannot override

federal statutes. See U.S. CONST. art. VI, cl. 2; see also

United States v. Baer, 235 F.3d 561, 562 (10th Cir. 2000).

And even if Indiana’s system were flawed (a point on

which we express no opinion), Leach was also required

to register in South Carolina and did not. We are thus

left only with Leach’s argument that SORNA violates

the Ex Post Facto Clause of the United States Constitution.

We review a challenge to the constitutional validity of
6 No. 10-1786

a federal statute de novo. United States v. Sidwell, 440

F.3d 865, 870 (7th Cir. 2006).

The Ex Post Facto Clause, U.S. CONST. art. I, § 9, cl. 3,

prohibits retroactive punishment. The Supreme Court

has held that “the constitutional prohibition on ex post

facto laws applies only to penal statutes which disadvantage the offender affected by them.” Collins v.

Youngblood, 497 U.S. 37, 41 (1990); see also O’Grady v.

Village of Libertyville, 304 F.3d 719, 723 (7th Cir. 2002). The

Court has emphasized the restriction of the Clause to

penal statutes, see Kansas v. Hendricks, 521 U.S. 346, 370

(1997), and thus a civil regulatory regime “will implicate

ex post facto concerns only if it can be fairly characterized

as punishment.” See Bae v. Shalala, 44 F.3d 489, 492 (7th

Cir. 1995). Logically there are only two conceivable ways

in which one might argue that an ex post facto violation

arises under SORNA: either Leach could contend that

the criminal penalties under 18 U.S.C. § 2250(a) are retroactive, or he could assert that the registration requirements under 42 U.S.C. § 16913 constitute punishment.

Leach has not clearly distinguished between the two

approaches, and so we will consider each possibility in

turn.

Section 2250(a) imposes up to ten years’ imprisonment

for failure to comply with SORNA’s registration requirements. This is certainly a penal statute, and so the only

question is whether it is retrospective. A sex offender

violates the statute when, at any time after SORNA was

enacted, he travels in interstate commerce and then fails

to register. See Carr, 130 S. Ct. at 2232-33. Because the law
No. 10-1786 7

targets only the conduct undertaken by convicted sex

offenders after its enactment, it does not violate the

Ex Post Facto Clause. See Weaver v. Graham, 450 U.S. 24, 29

(1981) (observing that a law “must apply to events

before its enactment” to be ex post facto). 

In fact, as we came to understand at oral argument,

Leach is not actually arguing that § 2250(a) retrospectively targets conduct that was lawful before the

statute was enacted. The crux of his point seems instead

to be that obliging him to comply with the registration

requirements imposed by 42 U.S.C. § 16913 effectively

increases the punishment for his 1990 conviction. We

recognize that SORNA imposes significant burdens on

sex offenders who, like Leach, may have committed

their crimes and completed their prison terms long

before the statute went into effect. Leach must register

in every jurisdiction where he lives, works, or goes to

school; he must notify government officials within

three business days of changing his residence; he must

furnish the government with fingerprints, a photograph,

a physical description of himself, vehicle identification

information, and any other materials required by the

Attorney General. 42 U.S.C. § 16913-14. All of these requirements are triggered without respect to the date of

the convictions: federal guidelines say that an offender

who was convicted before SORNA was enacted must

comply with them. 28 C.F.R. § 72.3. But that does not

make them retrospective: SORNA merely creates new,

prospective legal obligations based on the person’s prior

history.
8 No. 10-1786

To violate the Ex Post Facto Clause, moreover, a law

must be both retrospective and penal. But whether a

comprehensive registration regime targeting only sex

offenders is penal, as Leach concedes, is not an open

question. In Smith v. Doe, 538 U.S. 84 (2003), the

Supreme Court held that an Alaska sex offender registration and notification statute posed no ex post facto

violation because it was a civil, rather than penal, statute.

Citing Smith, we observed in Dixon v. United States, a

case that did not squarely present the issue, that a defendant could not challenge SORNA’s registration requirements on ex post facto grounds because the statute

is, in fact, regulatory. 551 F.3d 578 (7th Cir. 2008), rev’d on

other grounds sub nom. Carr v. United States, 130 S. Ct.

2229 (2010). Leach has not identified any aspects of

SORNA’s registration provisions that distinguish this

case from Smith. This is unsurprising, since we too are

unable to find any meaningful distinctions. Therefore,

we join our sister circuits in concluding that SORNA is

not an ex post facto law. See United States v. DiTomasso,

621 F.3d 17, 25 (1st Cir. 2010); United States v. Guzman, 591

F.3d 83, 94 (2d Cir. 2010); United States v. Shenandoah,

595 F.3d 151, 158-59 (3d Cir. 2010); United States v. Gould,

568 F.3d 459, 466 (4th Cir. 2009); United States v. Young, 585

F.3d 199, 203-06 (5th Cir. 2009); United States v. May,

535 F.3d 912, 919-20 (8th Cir. 2008); United States v. George,

625 F.3d 1124, 1131 (9th Cir. 2010); United States v.

Hinckley, 550 F.3d 926, 936 (10th Cir. 2008); United States

v. Ambert, 561 F.3d 1202, 1207 (11th Cir. 2009).

The judgment of the district court is AFFIRMED.

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