United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 08-2265

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United States of America, *

*

 Plaintiff – Appellee, *

*

v. *

*

Kenneth Dean Hulen, *

* 

Defendant – Appellant. *

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Appeals from the United States

No. 08-2379 District Court for the

___________ Western District of Arkansas.

[UNPUBLISHED]

United States of America, *

*

 Plaintiff – Appellee, *

*

v. *

*

Jovel Isaias Torres, also known as *

Marlos Reyes, *

* 

Defendant – Appellant. *

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Submitted: January 13, 2009

Filed: January 27, 2009

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1

The Honorable David Gregory Kays, United States District Judge for the

Western District of Missouri, sitting by designation.

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Before MURPHY and SMITH, Circuit Judges, and KAYS,1

 District Judge.

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PER CURIAM.

Kenneth Dean Hulen and Jovel Isaias Torres were convicted of failing to

register as sex offenders as required by the Sex Offender Registration and Notification

Act (SORNA). 18 U.S.C. § 2250. They appeal from the denial of their motions to

dismiss their indictments, arguing that the government lacked evidence that they

traveled in interstate commerce after SORNA was enacted. They also argue that

SORNA violates the ex post facto clause, the nondelegation doctrine, and due process.

SORNA created a federal sex offender registry and requires sex offenders who

have been convicted under federal law or who travel in interstate commerce to update

their required registration. 18 U.S.C. § 2250(a). Hulen and Torres had both been

convicted of sex offenses under state law: Hulen in Iowa and Torres in Maryland. 

Both were later discovered in other states and so their travel in interstate commerce

at some time might be presumed. Neither had updated his registration, and they were

charged with violating SORNA. 

Hulen and Torres moved to dismiss their indictments on the ground that pretrial

discovery from the government disclosed no evidence that either of them had traveled

in interstate commerce after the effective date of the statute. The district court denied

the motions, and both men entered conditional guilty pleas. The district court

sentenced Torres to 30 months imprisonment. Hulen was sentenced to 15 months and

has already completed his term of imprisonment.
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We review de novo the denial of a motion to dismiss the indictment. United

States v. Howell, 531 F.3d 621 (8th Cir. 2008). SORNA was enacted July 27, 2006,

and we subsequently decided that § 2250(a) "punishes [only] convicted sex offenders

who travel in interstate commerce after the enactment of SORNA and who fail to

register as required by SORNA." United States v. May, 535 F.3d 912, 920 (8th Cir.

2008) (emphasis added). It is undisputed that Hulen's last interstate travel predated

the passage of SORNA. The government also states on appeal that Torres's last

interstate travel "cannot be established with certainty." 

The government concedes that "pre-SORNA interstate travel cannot violate

SORNA" and that it did not have evidence that either defendant had traveled interstate

after the effective date of the statute. The Criminal Division of the Department of

Justice has instructed the prosecution to concede this issue on appeal. For these

reasons, we reverse the order of the district court and remand for further proceedings

consistent with this opinion.

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