FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-30072

Plaintiff-Appellee, D.C. No.

v.  1:09-cr-00023-

M JDS-1 ARK STEVEN ELK SHOULDER,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Montana

Jack D. Shanstrom, Senior District Judge, Presiding

Submitted June 1, 2012*

Portland, Oregon

Filed October 5, 2012

Before: A. Wallace Tashima, Carlos T. Bea, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

12119
COUNSEL

Lisa J. Bazant, Billings, Montana, for the appellant.

Marcia Hurd, Office of the United States Attorney, Billings,

Montana, for the appellee.

OPINION

IKUTA, Circuit Judge:

This appeal challenges the constitutionality of certain key

provisions of the Sex Offender Registration and Notification

Act (SORNA). Pub. L. 109-248, Tit. I, 120 Stat. 590 (2006)

(codified in scattered sections of the U.S.C.). Defendant Mark

Steven Elk Shoulder was prosecuted under 18 U.S.C.

§ 2250(a) for failing to comply with the sex offender registration requirements set forth in 42 U.S.C. § 16913. He now

argues that his conviction was invalid, because SORNA violates the Ex Post Facto Clause and the Due Process Clause,

and because Congress lacked the constitutional authority to

12122 UNITED STATES v. ELK SHOULDER
enact SORNA. We reject these constitutional challenges, and

affirm the judgment of the district court.

I

SORNA was enacted in response to “Congress’ awareness

that pre-[SORNA] registration law consisted of a patchwork

of federal and 50 individual state registration systems.” Reynolds v. United States, 132 S. Ct. 975, 978 (2012) (citing 73

Fed. Reg. 38045 (2008)). SORNA sought to improve the uniformity and effectiveness of those systems by, among other

things, “creating federal criminal sanctions applicable to those

who violate the Act’s registration requirements.” Id. To effectuate this goal, SORNA’s registration requirement, 42 U.S.C.

§ 16913, requires all state and federal sex offenders, as defined,1

to “register, and keep the registration current, in each jurisdiction where the offender” resides, works, or goes to school.2

 A

person who fails to register as required by § 16913 may be

criminally prosecuted under 18 U.S.C. § 2250(a). This provision requires the government to prove that the defendant: (1)

is required to register under SORNA, (2) is a “sex offender”

as defined due to a conviction under federal law (or the law

of certain other listed jurisdictions) or a person who “travels

in interstate or foreign commerce, or enters or leaves, or

1

42 U.S.C. § 16911(1) provides: “The term ‘sex offender’ means an

individual who was convicted of a sex offense.” The term “sex offense”

is defined in § 16911(5)(A)(i) to include: “a criminal offense that has an

element involving a sexual act or sexual contact with another.” 

2

42 U.S.C. § 16913(a) provides: 

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. For initial

registration purposes only, a sex offender shall also register in the

jurisdiction in which convicted if such jurisdiction is different

from the jurisdiction of residence. 

UNITED STATES v. ELK SHOULDER 12123
resides in, Indian country” and, (3) knowingly failed to register or update a registration as required by SORNA.3

These SORNA provisions provide the backdrop to the facts

of this case. In 1991, Elk Shoulder was convicted in a federal

district court in Montana of sexual abuse of a six-year-old

child in violation of 18 U.S.C. § 2241(c).4 Elk Shoulder was

sentenced to 172 months in prison, followed by five years

supervised release. When Elk Shoulder was released in

December 2003, officials informed him that he was required

to register as a sex offender under Montana law. He registered

in Yellowstone County, Montana, where he signed and initialed the state’s “Sexual and Violent Offender Registration

Form.” By doing so, Elk Shoulder acknowledged that under

state law, he was required to maintain a current and updated

3

18 U.S.C. § 2250(a) states: 

(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. 

4At the time of Elk Shoulder’s conviction, § 2241(c) provided that

“[w]hoever, in the special maritime and territorial jurisdiction of the

United States or in a Federal prison, knowingly engages in a sexual act

with another person who has not attained the age of 12 years, or attempts

to do so, shall be fined under this title, imprisoned for any term of years

or life, or both.” 18 U.S.C. § 2241 (1992). 

12124 UNITED STATES v. ELK SHOULDER
registration and that his duty to register would continue for

the rest of his life, even after the expiration of probation or

parole. 

Weeks later, in February 2004, Elk Shoulder violated the

terms of his supervised release and was sentenced to thirty

months in prison, followed by thirty months of supervised

release. Upon his release from prison a second time in April

2006, he again registered as a sex offender in Yellowstone

County. SORNA was enacted three months later. In August

2006, Elk Shoulder again violated the terms of his supervised

release and was sentenced to another twenty-four months in

prison.

After his release from prison a third time in May 2008, Elk

Shoulder moved around Montana, living at various times in

the Northern Cheyenne Indian Reservation, Bozeman, Lame

Deer, Billings, and Wolf Point. He did not register as a sex

offender in any of these locales. 

In 2009, Elk Shoulder was indicted under 18 U.S.C.

§ 2250(a) for violating the SORNA registration requirements

in 42 U.S.C. § 16913. Before trial, Elk Shoulder brought two

motions to dismiss the indictment. In the first, he asserted that

SORNA’s registration provision exceeded Congress’s authority under the Commerce Clause. In the second, he claimed

that the retroactive application of these provisions violated the

Ex Post Facto Clause. The district court denied both motions.

After a bench trial, the court found Elk Shoulder guilty

beyond a reasonable doubt. He was sentenced to a term of

thirty months imprisonment, to be followed by five years

supervised release. 

On appeal, Elk Shoulder argues that the district court erred

in rejecting his constitutional challenges to SORNA. We

address each of his arguments in turn.

UNITED STATES v. ELK SHOULDER 12125
II

We first consider Elk Shoulder’s argument that SORNA’s

statutory scheme for requiring sex offenders to register and

criminalizing certain failures to register violates the Ex Post

Facto Clause. 

[1] The Constitution provides: “No . . . ex post facto Law

shall be passed.” U.S. Const. art. I § 9, cl. 3. As the Supreme

Court has succinctly explained, “[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins v. Youngblood, 497 U.S. 37,

43 (1990); see also United States v. Elkins, 683 F.3d 1039,

1044 (9th Cir. 2012) (holding that the Ex Post Facto Clause

“bars the enactment of any law that imposes a punishment for

an act which was not punishable at the time it was committed;

or imposes additional punishment to that then prescribed.”)

(quoting Russell v. Gregoire, 124 F.3d 1079, 1083 (9th Cir.

1997) (internal quotation marks omitted). 

Elk Shoulder asserts that SORNA’s registration requirement constitutes an additional punishment for his federal sex

offense, which he committed in 1991. Because SORNA was

not enacted until 2006, he argues that the Ex Post Facto

Clause prohibited Congress from applying the registration

requirement to him.5

[2] Elk Shoulder’s argument is foreclosed by our recent

decision in United States v. Elkins. 683 F.3d 1039. In Elkins,

a defendant who had been convicted of a sex offense under

5To the extent Elk Shoulder argues that 18 U.S.C. § 2250 also violates

the Ex Post Facto Clause, his claim is meritless. Elk Shoulder’s criminal

conduct (failing to register following his 2008 release from prison)

occurred after SORNA was enacted in July 2006. Therefore, a conviction

under § 2250 cannot violate the Ex Post Facto clause in Elk Shoulder’s

case. Cf. Miller v. Florida, 482 U.S. 423, 430 (1987) (“A law is retrospective if it changes the legal consequences of acts completed before its effective date.” (internal quotation marks omitted)). 

12126 UNITED STATES v. ELK SHOULDER
Washington law in 1994 failed to register when he moved

from Washington to California in 2010, and was indicted

under § 2250. Id. at 1041-42. Elkins filed a motion to dismiss

the indictment arguing, among other things, that the requirement to register violated the Ex Post Facto Clause in his case

because it was punitive in nature and was based on a prior

conviction that occurred before SORNA was enacted. Id. at

1043-44. We concluded that SORNA’s registration requirement was not punitive in nature, and therefore did not violate

Elkins’s constitutional rights. Id. at 1045. We based this conclusion on Smith v. Doe, 538 U.S. 84 (2003), in which the

Supreme Court applied a five factor test,6 and concluded that

Alaska’s Sex Offender Registration Act, which is similar to

SORNA in all material ways, was not punitive in nature. Id.

at 105-06. We thus rejected the ex post facto challenge to

SORNA, and in doing so joined all of our sister circuits that

have considered the issue. Elkins, 683 F.3d at 1045.7 Because

Elk Shoulder also argues that SORNA’s registration requirement cannot be applied to him because it is punitive in nature,

Elkins’s reasoning is equally applicable to Elk Shoulder. 

6The Court’s analysis focused on “whether, in its necessary operation,

the regulatory scheme: [1] has been regarded in our history and traditions

as a punishment; [2] imposes an affirmative disability or restraint; [3] promotes the traditional aims of punishment; [4] has a rational connection to

a nonpunitive purpose; or [5] is excessive with respect to this purpose.”

Smith, 538 U.S. at 97. 

7

See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir. 2010),

abrogated on other grounds by Reynolds, 132 S. Ct. 975; 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), abrogated on other grounds by

Reynolds, 132 S. Ct. 975; United States v. Gould, 568 F.3d 459, 466 (4th

Cir. 2009); United States v. Young, 585 F.3d 199, 202-06 (5th Cir. 2009);

United States v. Felts, 674 F.3d 599, 605-06 (6th Cir. 2012); United States

v. Leach, 639 F.3d 769, 772-73 (7th Cir. 2011); United States v. May, 535

F.3d 912, 919-20 (8th Cir. 2008), abrogated on other grounds by Reynolds, 132 S. Ct. 975; United States v. Hinckley, 550 F.3d 926, 935-38

(10th Cir. 2008), abrogated on other grounds by Reynolds, 132 S. Ct. 975;

United States v. W.B.H., 664 F.3d 848, 852-60 (11th Cir. 2011). 

UNITED STATES v. ELK SHOULDER 12127
Despite this precedent, Elk Shoulder argues that the Court’s

analysis in Smith “no longer hold[s] true in today’s society,”

and the purpose and effect of SORNA’s registration requirement is punitive in nature. Elk Shoulder focuses on the

Supreme Court’s holding that the Alaska registration statute

does not resemble shaming punishments of the colonial period

(the first factor of Doe’s five-factor test), and that there was

“no evidence that [the registration requirement] has led to

substantial occupational or housing disadvantages for former

sex offenders that would not have otherwise occurred through

the use of routine background checks by employers and landlords.” 538 U.S. at 100 (the second factor). According to Elk

Shoulder, today SORNA’s registration requirement imposes

significant hardships on offenders, who are “held to public

ridicule by community members,” and face difficulty finding

and maintaining both employment and housing. He notes that

local newspapers frequently maintain interactive maps of the

registered residences of sex offenders, and cites “reports of

incidents of citizens standing on street corners bearing signs

with the names and addresses of offenders blaz[o]ned across

the front.”

This argument fails. Most important, we have recently reaffirmed the nonpunitive nature of SORNA in Elkins, which we

are bound to follow. Miller v. Gammie, 335 F.3d 889, 899

(9th Cir. 2003) (en banc). Further, Smith v. Doe contemplated

that information from the Alaska sex registration statute

would be available on the internet, but determined that such

internet notification was nonpunitive because its principal

effect was to “inform the public for its own safety, not to

humiliate.” 583 U.S. at 99. The Court further noted that there

was no evidence that the Alaska act had “led to substantial

occupational or housing disadvantages that would not have

otherwise occurred through the use of routine background

checks by employers and landlords.” Id. at 100. Because

“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 92 (internal citation and

12128 UNITED STATES v. ELK SHOULDER
quotation marks omitted), Elk Shoulder’s conclusory statements and handful of anecdotal examples cannot carry the

heavy burden of showing substantial changes in society that

would require us to revisit the Supreme Court’s conclusion.

[3] We thus reject Elk Shoulder’s argument that application of the SORNA registration requirements to him on the

basis of his earlier conviction violates the Ex Post Facto

Clause.

III

[4] We next turn to Elk Shoulder’s arguments that

SORNA’s registration requirement violates his rights under

the Fifth Amendment, which bars the federal government

from depriving persons of “life, liberty, or property, without

due process of law.” U.S. Const. amend. V. 

Elk Shoulder first asserts that he was deprived of his right

to due process because it was impossible for him to comply

with SORNA. As noted above, in order to convict Elk Shoulder under § 2250(a), the government had to prove that Elk

Shoulder knowingly failed “to register or update a registration

as required by” SORNA. § 2250(a)(3) (emphasis added). Elk

Shoulder points out that SORNA required states to adopt the

new procedures for sex offender registries established by the

Act, or lose part of their federal funding. 42 U.S.C.

§§ 16924(a), 16925. Elk Shoulder argues that, because Montana had not yet conformed its sex offense registry to

SORNA’s requirements, it was impossible for him to register

“as required by” SORNA. 

[5] We have previously rejected this argument, both in

United States v. George, 625 F.3d 1124, 1128-29 (9th Cir.

2010), vacated on other grounds, 672 F.3d 1126 (9th Cir.

2012), and in Elkins, 683 F.3d at 1046. As we stated in Elkins,

“the federal government’s prosecution of an alleged violation

of SORNA is not dependent on the individual state’s impleUNITED STATES v. ELK SHOULDER 12129
mentation of the administrative portion of SORNA.” Elkins,

683 F.3d at 1046; accord id. at 1046 n.9 (the “duty to register

in a state registry is independent of a state’s degree of implementation of SORNA.” (quoting Felts, 674 F.3d at 603)); see

also Guzman, 591 F.3d at 93; Gould, 568 F.3d at 464.

Because Elk Shoulder could have registered with the State of

Montana’s registry, and because this would have allowed him

to register “as required by” SORNA, it was not impossible for

Elk Shoulder to meet the requirements of § 2250(a). Thus,

this case presents no impossibility-based due process problems.

[6] Second, Elk Shoulder asserts that he did not receive

notice that failure to register as a sex offender would violate

SORNA, and therefore he did not receive notice sufficient to

comply with the Due Process Clause. This argument is meritless. In order to convict a defendant under § 2250(a), “the

government [must] prove that a convicted sex offender knew

of a registration requirement and knowingly failed ‘to register

or update a registration.’ ” United States v. Crowder, 656 F.3d

870, 876 (9th Cir. 2011) (quoting § 2250(a)(3)). A SORNA

defendant’s knowledge of his failure to “register or update a

registration” as required by state law is sufficient to satisfy the

“notice” requirement of the Due Process Clause. Elkins, 683

F.3d at 1049-50; accord United States v. Brown, 586 F.3d

1342, 1351 (11th Cir. 2009) (“[W]e join our sister circuits in

concluding that ‘notice of a duty to register under state law is

sufficient to satisfy the Due Process Clause.” (internal quotation marks omitted)). The defendant need not know that the

same failure also violates SORNA. Thus, because Elk Shoulder received notice of his obligation to register under Montana state law, he received all the notice the Due Process

Clause requires.

IV

[7] Finally, Elk Shoulder argues that Congress lacks the

Constitutional authority to punish his failure to register under

12130 UNITED STATES v. ELK SHOULDER
SORNA. At issue is whether Congress has the authority to

impose SORNA registration requirements on individuals who,

like Elk Shoulder, are convicted of federal sex crimes.8

“The Federal Government ‘is acknowledged by all to be

one of enumerated powers.’ ” Nat’l Fed’n of Ind. Bus. (NFIB)

v. Sebelius, 132 S. Ct. 2566, 2576 (2012) (quoting McCulloch

v. Maryland, 17 U.S. (4 Wheat.) 316, 405 (1819)). No clause

in Article I expressly authorizes Congress to impose registration requirements on federal convicts such as Elk Shoulder.

Nevertheless, the government argues that because Congress

had authority to enact § 2241(c) (Elk Shoulder’s statute of

conviction) under the Constitution’s Property Clause, U.S.

Const., art. IV, § 3, cl. 2,9 Congress also had the authority to

enact §§ 16913 and 2250(a) under the Necessary and Proper

Clause, which empowers Congress “[t]o 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,” U.S. Const.

art. I, § 8, cl. 18.

A

The Supreme Court provided a framework for analyzing

such arguments in United States v. Comstock, 130 S. Ct. 1949

(2010). In Comstock, the Court upheld a civil commitment

statute that allowed the government to detain, past their

release dates, sexually dangerous individuals who were

already in federal custody, as a valid use of Congress’s power

8Because Elk Shoulder was convicted of a sex offense under federal

law, we do not reach his argument that SORNA’s imposition of registration requirements on sex offenders convicted under state law exceeded

Congress’s power under the Commerce Clause. 

9

“The Congress shall have Power to dispose of and make all needful

Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular

State.” U.S. Const., art. IV, § 3, cl. 2. 

UNITED STATES v. ELK SHOULDER 12131
under the Necessary and Proper Clause. Id. at 1954. In analyzing this issue, the Court weighed five considerations, id. at

1956, which (it was careful to explain), did not constitute a

test to be satisfied, id. at 1965. As explained in more detail

below, these considerations included whether the Congressional enactment: (1) was rationally related to the implementation of a constitutionally enumerated power; (2) was “a

modest addition” to existing federal legislation; (3) was reasonably adapted to its ends; (4) accommodated state interests

and state sovereignty; and (5) was not “too sweeping in

scope,” and was linked to a constitutionally enumerated

power in a manner that was not too attenuated. Id at 1956-65.

Comstock’s analysis of these five factors is directly applicable to the SORNA registration statute. 

First, Comstock determined that the civil commitment statute at issue in that case was rationally related to the constitutionally enumerated powers that authorized Congress to enact

and enforce laws. Id. at 1956. The Court reasoned that

because Congress had the power to “ensure the enforcement

of federal criminal laws enacted in furtherance of its enumerated powers,” id. at 1958, it likewise “can cause a prison to

be erected at any place within the jurisdiction of the United

States,” and direct that it be used for the imprisonment of federal criminals. Id. (quoting Ex parte Karstendick, 93 U.S. 396,

400 (1876)) (internal quotation marks omitted). Congress,

“having enacted a prison system, can enact laws that seek to

ensure that system’s safe and responsible administration.”

Comstock, 130 S. Ct. at 1958. It may also seek to “ensure the

safety of . . . those in the surrounding communities” with the

enactment of further criminal laws. Id. Each link in this chain,

the Court explained, is rationally related to the underlying

enumerated power; the powers authorizing the prisoners’ statutes of conviction. By extension, this gave Congress the

authority to confine “mentally ill and sexually dangerous persons who are already in federal custody, even if doing so

12132 UNITED STATES v. ELK SHOULDER
detains them beyond the termination of their criminal sentence.” Id. at 1961.

[8] We apply Comstock’s analysis here. The parties do not

dispute that Congress had the power to enact § 2241(c), Elk

Shoulder’s crime of conviction, under the Property Clause.

This constitutional authority gave Congress the power to

enact laws to ensure the safety of the surrounding communities by regulating and monitoring post-release behavior. See

Comstock, 130 S. Ct. at 1958. SORNA’s registration requirement, see § 16913, and the criminal penalties for the violation

of the registration requirements, see § 2250, are rationally

related to public safety, “which is advanced by alerting the

public to the risk of sex offenders in their community,” Smith,

538 U.S. at 102-03. Accordingly, SORNA was rationally

related to an enumerated power.

[9] Second, Comstock determined that the civil commitment statute was “a modest addition to a set of federal prisonrelated mental-health statutes that ha[d] existed for many decades.” Id. at 1958, 1961. The same conclusion is applicable

here. Requiring sex offenders to register and update their

addresses is “a modest addition” to the federal government’s

long history of regulating federal offenders after their release

from incarceration through probation, parole and supervised

release. See, e.g., Sentencing Reform Act of 1984, Pub. L.

No. 98-473, 98 Stat. 1987; Act of June 25, 1910, 36 Stat. 819

(establishing parole for federal prisoners). Federal law has

required states to maintain sex offender registration and community notification systems since 1994. See Carr v. United

States, 130 S. Ct. 2229, 2233 (2010). A registration requirement “imposes the more minor condition of registration,”

Smith, 538 U.S. at 104, compared to the custodial requirements of parole, probation, and supervised release.

[10] Third, Comstock held that the civil commitment statute at issue was reasonably adapted to its ends. Among other

things, “Congress could have reasonably concluded that fedUNITED STATES v. ELK SHOULDER 12133
eral inmates who suffer from a mental illness that causes them

to have serious difficulty in refraining from sexually violent

conduct, would pose an especially high danger to the public

if released.” Comstock, 130 S. Ct. at 1961 (internal citation

and quotation marks omitted). Here, Congress’s decision to

enact SORNA to enhance public safety by imposing a registration requirement on convicted federal sex offenders and

criminalizing the failure to register, is also “reasonably

adapted to the attainment of a legitimate end,” id. at 1957

(internal quotation marks omitted), namely to “protect the

public from sex offenders and offenders against children,” 42

U.S.C. § 16901, by improving the “patchwork of federal and

. . . state registration systems” that pre-dated SORNA, Reynolds, 132 S. Ct. at 978 (citing 73 Fed. Reg. 38045). Congress

determined that the deficiencies in the pre-SORNA systems

“had enabled sex offenders to slip through the cracks” resulting in some 100,000 “missing” sex offenders, and that

SORNA’s comprehensive registries, public notification, information sharing and dissemination, and criminal enforcement

penalties, Carr, 130 S. Ct. at 2240-41, are reasonable means

for addressing this problem, see id., at 2238. Further, because

SORNA registration requirements are imposed only on individuals who were convicted of sexual offenses, it regulates

only “those who by some preexisting activity bring themselves within the sphere of federal regulation.” NFIB, 132 S.

Ct. at 2592. 

[11] Fourth, Comstock determined that the civil commitment statute “properly accounts for state interests,” and does

not “invade state sovereignty or otherwise improperly limit

the scope of powers that remain with the States.” Id. at 1962

(internal quotation marks omitted). SORNA likewise reasonably accommodates state interests. Although Congress gave

the states primary responsibility in supervising sex offenders,

SORNA is applicable only to federal sex offenders, over

whom the federal government has a “direct supervisory interest,” and those state offenders “who threaten the efficacy of

the statutory scheme by traveling in interstate commerce,”

12134 UNITED STATES v. ELK SHOULDER
thus placing themselves outsides of the state’s reach. Carr,

130 S. Ct. at 2238-39.

Additionally, SORNA’s requirement that states implement

SORNA-compliant registration and notification systems in

order to receive certain funds, see 42 U.S.C. § 16925, does

not improperly invade state interests. A state that fails to

“substantially implement” the requirement of SORNA may

lose ten percent of federal funding under the Omnibus Crime

Control and Safe Streets Act of 1968. § 16925(a). This financial loss is a “relatively mild encouragement” rather than “a

gun to the head.” NFIB, 130 S. Ct. at 2604 (striking down legislation conditioning “over 10 percent of a State’s overall

budget” on state expansion of Medicaid programs). Indeed, as

of July 27, 2011, the statutory deadline for jurisdictions to

implement SORNA, only 14 states had done so. See Melissa

Hamilton, Public Safety, Individual Liberty, and Suspect Science: Future Dangerousness Assessments and Sex Offender

Laws, 83 Temp. L. Rev. 697, 706 n.53 (2011).

[12] Fifth, Comstock held that the links between Congress’s enumerated powers and the federal civil commitment

statute “are not too attenuated.” 130 S. Ct. at 1963. The Court

rejected the argument that “when legislating pursuant to the

Necessary and Proper Clause, Congress’s authority can be no

more than one step removed from a specifically enumerated

power.” Id. Rather, the Court explained, its precedents allow

for many links in the chain. Here, the links between Congress’s enumerated powers and SORNA are no more attenuated than those in Comstock. It is a small step from

Congress’s power to enact laws, criminalize their violation,

place the violators in custody, and protect the public from federal convicts even after release, see id. at 1964-65, to requiring federal convicts who may be dangerous to the public to

provide information regarding their residences, and punishing

those who fail to do so. 

Further, Comstock concluded that the civil commitment

statute was not “too sweeping in scope.” Id. at 1963. The

UNITED STATES v. ELK SHOULDER 12135
SORNA registration requirements are likewise not “too

sweeping in scope.” Contrary to Elk Shoulder’s assertion that

authorization of lifelong registration requirements would

grant a “general police power” to Congress, the requirement

to register is not nearly as significant a burden as the indefinite detention authorized in Comstock. See id. at 1954-55.

Although the Necessary and Proper Clause provides no justification for laws effecting “a substantial expansion of federal

authority,” NFIB, 130 S. Ct. at 2592, SORNA’s registration

requirement is “narrow in scope” and “incidental to the exercise” of enumerated powers. Id. at 2592 (opinion of C.J. Roberts) (citations and internal quotation marks omitted).

[13] Accordingly, we join the Tenth Circuit Court of

Appeals in concluding that SORNA’s registration requirement, § 16913, and by extension, the statute penalizing failure

to register, § 2250, were within the scope of Congress’s

authority under the Necessary and Proper Clause. See United

States v. Yelloweagle, 643 F.3d 1275, 1277 (10th Cir. 2011)

(assuming the constitutionality of the registration provision,

and concluding that § 2250 was “a valid exercise of congressional authority under the Necessary and Proper Clause.”);

United States v. Carel, 668 F.3d 1211, 1217 (10th Cir. 2011)

(upholding the constitutionality of § 16913 “[b]ased on Congress’s authority to enact [defendant’s federal] statute of conviction” and the Necessary and Proper Clause).

B

We recognize that the Fifth Circuit has disagreed with this

conclusion, and held that Congress did not have the authority

to require federal convicts who had “been unconditionally

released from federal custody or supervision” before SORNA

was enacted to comply with its registration requirements.10

10Because Elk Shoulder was serving a federally imposed term of supervised release when SORNA was enacted in July 2006, Kebedeaux’s specific holding is not applicable here. We nevertheless consider the logic of

12136 UNITED STATES v. ELK SHOULDER
See United States v. Kebodeaux, 687 F.3d 232, 244, 253 (5th

Cir. 2012). The Fifth Circuit reasoned that “[a]fter the federal

government has unconditionally let a person free, [ ] the fact

that he once committed a crime is not a jurisdictional basis for

subsequent regulation and possible criminal prosecution.” Id.

at 234-35. In effect, the Fifth Circuit deemed the links

between SORNA’s registration requirement and an enumerated Article I power to be per se too attenuated when applied

to federal convicts already released from federal custody. The

Fifth Circuit distinguished Comstock because the civil commitment statute in that case applied to prisoners still in federal

custody. Id. at 236.

We disagree. The Supreme Court has “made clear that, in

determining whether the Necessary and Proper Clause grants

Congress the legislative authority to enact a particular federal

statute, we look to see whether the statute constitutes a means

that is rationally related to the implementation of a constitutionally enumerated power.” Comstock, 130 S.Ct. at 1956.

Nothing in this jurisprudence supports Kebodeaux’s per se

rule that a Congressional enactment cannot be rationally

related to implementing an enumerated power if it applies to

federal convicts who have been released from custody before

the date of the enactment. Rather, as explained above, a registration requirement aimed at informing the public of the identity and location of individuals convicted of sex offenses is

reasonably related to Congress’s authority to ensure the safety

of the public, which in turn flows from its authority to enact

Kebedeaux because, while SORNA was enacted while Elk Shoulder was

on supervised release, SORNA’s registration requirements did not become

applicable to Elk Shoulder until after his unconditional release from

prison in May 2008. See Reynolds, 132 S. Ct. at 978 (holding that

SORNA’s registration requirements “do not apply to pre-Act offenders

until the Attorney General so specifies”); United States v. Valverde, 628

F.3d 1159, 1160 (9th Cir. 2010) (holding that the Attorney General did not

validly specify that SORNA’s registration requirements were retroactive

until August 1, 2008.). 

UNITED STATES v. ELK SHOULDER 12137
and enforce criminal laws. Indeed, in Smith v. Doe, the

Supreme Court relied on this reasonable relation between a

registration requirement and a state’s safety objectives in concluding that a state could constitutionally apply its sex

offender registration statute to a person who had been

released from custody before the statute was enacted. See 538

U.S. at 102-03 (agreeing with the appellate court that the statute had the “legitimate nonpunitive purpose of public safety,

which is advanced by alerting the public to the risk of sex

offenders in their communit[y].”) (internal quotation marks

omitted, alteration in original). While Comstock may be distinguishable on its facts, we see no reasoned basis for holding

that a law authorizing the federal government to exercise

indefinite civil custody over former federal prisoners even

after they have served their sentences, Comstock, 130 S. Ct.

at 1979 (Thomas, J., dissenting), has less of a rational relationship to an enumerated power than an enactment requiring

such former federal prisoners to provide registration information, even after they have been released from custody.

Because we reject the Fifth Circuit’s conclusion that Congress cannot “reassert jurisdiction over someone it had long

ago unconditionally released from custody,” Kebodeaux, 687

F.3d at 238, a proposition for which the Fifth Circuit provided

no support, we disagree with its analysis of the Comstock considerations, which it based almost exclusively on that conclusion.

V

[14] Because SORNA violates neither the Ex Post Facto

Clause nor Elk Shoulder’s constitutional right to due process,

and because Congress acted within its enumerated powers in

enacting it, we affirm the judgment of the district court.

AFFIRMED.

12138 UNITED STATES v. ELK SHOULDER