10-3545-cr United States v. Caraway UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCA L RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, 2 on the 6 thday of September, two thousand eleven. 3 4 PRESENT: 5 6 DEBRA ANN LIVINGSTON, 7 DENNY CHIN, 8 RAYMOND J. LOHIER, J R ., 9 10 Circuit Judges

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_______________________________________________ 12 13 UNITED STATES OF AMERICA, 14 15 Appellee , 16 -v.- No. 10-3545-cr 17 18 NORMAN S. CARAWAY, 19 Defendant-Appellant

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M ONICA J. R ICHARDS , Assistant United States Attorney, for 22 William J. Hochul, Jr., United States Attorney, Western 23 District of New York, Buffalo, New York, for Appellee

. 24 25 L AURIE S. H ERSHEY , Manhasset, New York, for Defendant26 Appellant

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1UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED 1 that the judgment of the district court be AFFIRMED. 2 Defendant-Appellant Norman S. Caraway app eals from a judgment of the United States 3 District Court for the Western District of New York (Arcara, J. ) sentencing him to 46 months’ 4 imprisonment for failure to meet the requirements of the Sex Offender Registration and Notification 5 Act (“SORNA”), 42 U.S.C. § 16901 et seq. Caraway was charged in a s uperseding indictment with, 6 inter alia , one count of traveling in interstate co mmerce while knowingly failing to register and 7 update a registration as required by SORNA, in violation of 18 U.S.C. § 2250(a). On July 22, 2009, 8 Caraway filed both a counseled and a pro se motion to dismiss the superseding indictment, arguing 9 primarily that SORNA violated the Ex Post Fact o Clause, the Tenth Amendment, and the Commerce 10 Clause of the United States Constitution. The district court adopted the Magistrate Judge’s Report 11 and Recommendation (Schroeder, M.J. ) recommending that the motions to dismiss be denied. 12 Caraway then pleaded guilty to the failure to register as a sex offender charge pursuant to 13 a plea agreement, dated April 23, 2010, in which he re served his right to appeal the denial of his 14 pretrial motions to dismiss. The district c ourt accepted the plea agreement and sentenced Caraway 15 on August 5, 2010. Judgment was entered on August 26, 2010. Caraway timely appealed. We 16 assume the parties’ familiarity with the underlying facts and procedural history. 17 * * * 18 We review de novo a district court’s legal conclusions, “including those interpreting and 19 determining the constitutionality of a statute.” United States v. Stewart , 590 F.3d 93, 109 (2d Cir. 20 2009), cert. denied , 130 S. Ct. 1924 (2010). We review arguments or objections not brought to the 21
2district court’s attention for plain error. See Fed. R. Crim. P. 52(b); Puckett v. United States , 129 1 S. Ct. 1423, 1429 (2009). 2 On appeal, Caraway primarily argues that SORNA was retroactively applied to him in 3 violation of the Ex Post F acto Clause of the Constitution. Caraway’s argument is foreclosed by our 4 decision in United States v. Fuller , 627 F.3d 499 (2d Cir. 2010), where “we h[e]ld that SORNA 5 applied upon its enactment to all sex offenders regardless of when convicted,” id. at 507. Because 6 Caraway’s “travel and failure to register occu rred after SORNA’s enactment and [its] effective 7 date . . . there is no ex post facto problem.” Id. at 508 (internal quotation marks and emphasis 8 omitted). Caraway’s argument therefore fails. 9 We have reviewed Caraway’s remaining arguments, including his constitutional challenges 10 to SORNA contained in his supplemental pro se brief, and find them to be without merit under our 11 case law. See United States v. Guzman , 591 F.3d 83, 89-91 (2d Cir. 2010) (holding that SORNA’s 12 registration requirements and criminal enforcement provision are proper under the Commerce 13 Clause); United States v. Venturella , 391 F.3d 120, 133 (2d Cir. 2004); see also Smith v. Doe , 538 14 U.S. 84, 93 (2003). For the foregoing reasons, the judgment of the district court is AFFIRMED. 15

FOR THE COURT: 16 Catherine O’Hagan Wolfe, Clerk 17 18

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