Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 09-1946

UNITED STATES OF AMERICA,

Appellee,

v.

KENNETH THOMPSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Lynch, Chief Judge,

Selya and Howard, Circuit Judges

Virginia G. Villa, Assistant Federal Defender, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Thomas E.

Delahanty II, United States Attorney, was on brief, for appellee.

June 3, 2011
SELYA, Circuit Judge. Defendant-appellant Kenneth

Thompson challenges his conviction under the Sex Offender

Registration and Notification Act (SORNA). Pub. L. No. 109-248,

tit. I, §§ 101-155, 120 Stat. 587, 590-611 (2006). After careful

consideration, we affirm.

The facts are straightforward. In 2001, the defendant

was convicted federally of possession of child pornography, and in

a parallel state proceeding of gross sexual assault and sexual

abuse of a minor. He served concurrent prison terms for these

offenses and, in December of 2006, began serving the probationary

portions of those sentences. He also registered as a sex offender

as required by both federal and Maine law. See 42 U.S.C. § 16913;

Me. Rev. Stat. Ann. tit. 34-A, § 11223.

The next summer, the authorities learned that the

defendant had violated the conditions of his probation. An attempt

to arrest him at the address listed in his sex offender

registration proved fruitless because he no longer lived there. 

His whereabouts were unknown until February of 2008, when he

registered a motor vehicle in New Mexico.

In due course, a federal grand jury sitting in the

District of Maine indicted the defendant on a single count of

failing to register as a sex offender under SORNA. See 18 U.S.C.

§ 2250(a). The defendant moved to dismiss the indictment on

constitutional grounds, but the district court demurred. United

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States v. Thompson, 595 F. Supp. 2d 143, 150 (D. Me. 2009). The

defendant subsequently entered a conditional guilty plea, Fed. R.

Crim. P. 11(a)(2), reserving his right to appeal the denial of his

pretrial motion to dismiss. The district court accepted the plea

and sentenced the defendant to a 37-month incarcerative term. This

timely appeal followed.

All of the defendant's claims are constitutional in

nature and engender de novo review. United States v. Volungus, 595

F.3d 1, 4 (1st Cir. 2010). We start with his claim that his

conviction offends the Due Process Clause. This claim has two

parts. We scrutinize each of these components separately.

First, the defendant notes that at the time of his

interstate travel and later failure to register, neither Maine nor

New Mexico had yet enacted statutes or promulgated regulations

implementing SORNA. Thus, he contemplates, he could not have

registered under SORNA. For that reason, he says that his

conviction offends due process.

This contention is foreclosed by circuit precedent. We

have held squarely that, under SORNA, "the registration

requirements for sex offenders are neither conditioned on nor

harnessed to state implementation of SORNA's state-directed

mandates." United States v. DiTomasso, 621 F.3d 17, 27 (1st Cir.

2010). That holding disposes of the defendant's first due process

argument, and anything more would be supererogatory.

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The defendant's second due process argument also founders

on the shoals of circuit precedent. He asserts that the government

could not prove that he "knowingly" violated the statute; after

all, neither Maine nor New Mexico had notified him of his

obligation to register under SORNA, nor was there any other proof

that he had actual knowledge that such an obligation existed. But

this assertion rests on the unfounded assumption that section

2250(a) requires a showing of specific intent (i.e., a conscious

flouting of SORNA's registration requirement) rather than merely a

showing of general intent (i.e., a knowing failure to register,

simpliciter). Our decision in United States v. Stevens, ___ F.3d

___, ___ (1st Cir. 2011) [No. 09-2024, slip op. at 7], consigns

this assertion to the scrap heap. The defendant's second due

process argument therefore fails. 

Next, the defendant argues that his indictment

transgressed the Commerce Clause, U.S. Const. art. I, § 8, cl. 3,

because Congress lacked power thereunder to enact SORNA. This

argument, too, runs up against settled law. We repeatedly have

upheld SORNA against Commerce Clause challenges. See, e.g.,

Stevens, ___ F.3d at ___ [slip op. at 9]; DiTomasso, 621 F.3d at

26. These precedents are controlling.

Finally, the defendant advances a series of arguments

premised on the Ex Post Facto Clause. U.S. Const. art. I, § 9, cl.

3. These arguments are hopeless.

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We need not tarry. The defendant insists that using a

pre-SORNA conviction to ground the current indictment violates ex

post facto principles. We do not agree.

The defendant's position overlooks the reality that new

acts — his interstate travel and subsequent failure to register —

comprise elements of the offense of conviction. There is,

therefore, no colorable ex post facto claim. See United States v.

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

May, 535 F.3d 912, 919-20 (8th Cir. 2008). 

In an effort to blunt the force of this reasoning, the

defendant repeatedly invokes the decision of the Supreme Judicial

Court of Maine in State v. Letalien, 985 A.2d 4, 7 (Me. 2009)

(discussing retroactive application of Maine's sex offender

registration and notification law). Letalien is of no consequence

here. Federal jurisprudence, not state jurisprudence, governs the

resolution of ex post facto challenges in federal criminal cases. 

See, e.g., United States v. Rodriguez, 630 F.3d 39, 41-42 (1st Cir.

2010) (looking to federal law to analyze ex post facto issue in

federal criminal case); United States v. Muñoz-Franco, 487 F.3d 25,

55 (1st Cir. 2007) (same); cf. U.S. Const. art. VI, cl. 2 ("This

Constitution, and the Laws of the United States which shall be made

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in Pursuance thereof . . . shall be the supreme Law of the Land;

and the Judges in every State shall be bound thereby. . . .").1

We need go no further. For the reasons elucidated above,

we summarily affirm the defendant's conviction. See 1st Cir. R.

27.0(c).

Affirmed.

In all events, the defendant committed his predicate sex 1

crimes in 2001, and Letalien applies only to crimes committed prior

to the 1999 effective date of Maine's sex offender registration

statute. See Letalien, 985 A.2d at 26.

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