NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0060n.06 No. 11-3582 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. TERRENCE SHANNON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF OHI O

Be fore : SI L ER and KETHL EDGE, Circuit Judges; MURPHY, District Court J udg e. * SILE R , Circuit J udg e. Def endant Terr ence Shannon pled g uilty to one count of possession of a firea rm by a felon in violation of 18 U.S.C. § 922(g ). The district c ourt sentenc ed Shannon to 52 months of i mprisonment and ordered that he reg ister as a sex offe nder under the Sex Offen der Reg istration and Notification Act (“SORNA” ), 42 U.S.C. § 16901, for his ear lier juvenile offe nder adjudication for

g ross sexual impos ition, in vi olation of Ohio Rev. Code § 2907.05. On appea l, Shannon raises three issues reg arding his sentenc ing. First, whether the district court err ed in applying a four- level enhanc ement for possession of a firea rm in conne ct i o n wi t h another felony offe nse pursuant to USSG § 2K2.1(b)( 6). Second, whether the district court proper ly order ed Shannon to re g ister as a sex off ender under SORNA as a condition of supervised r elea se.

The Honora

ble Stephen J

. Murphy , I I I , United States District J udg e for the Easter n District * of Michig an, sitting by

desig nation.No. 11-3582

United States v. Shannon Third, whether

the SORNA reg istration require ment violates the Ex Post F acto Clause of the U.S. Constit ution. See U.S. Const. art. I , § 9, cl. 3. We AF F IRM

. I

. Shannon was a

rre sted in 2010, afte r officers found him in possession of a loaded handg un and 2.2 g rams of cra ck coca ine. He pled g uilty to the firea rm char g e. His prese ntence investigation repor t (“PSR”) assig ned Shannon a total offe nse level of twenty -one and a criminal history cate g ory of I V, and r ecommende d an imprisonment rang e of 57 to 71 months. Shannon objec ted to a four

level enha

nceme nt to his ba se level offe nse for possession of a firea rm in connec tion with another felony , arguing that he car ried the firea

rm for protec tion and not for criminal activity

. He also objected to the probation office r’s rec ommendation that he reg ister as a sex offe nder under SORNA, arguing that he should not be require d t o comply beca use as a juvenile delinquent he was not convicted of

a cr ime. At sentenc ing, the district court imposed a four- level enh ancement for use of a firea rm in

connec tion with another felony offe nse under USSG § 2K2.1(b)( 6). The district court found that the United States met its burden of showing that the enh an ceme nt should apply

. The district court g rante d S h an non’s objection with respe ct to state law sex offe nder reg istration but denied the objection as it a

pplies to fede ral re g istration, requiringthat he re g ister in O hio pur suant to Sec tion 113 of the Ada

m Walsh C hild Protection and Safety Act of 2006. The district court sentenc ed Sha nnon to concur

rent terms of 52 months, depar ting downwar d from the guidelines rang e, and r equire d him to reg ister as a sex offender

. I I

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United States v. Shannon A four- level enhanc ement to the defe ndant’s base o ffe nse level applies if the defe ndant “used

or possessed any firea

rm or ammunition in connec tion with another felony offe nse.” USSG § 2K2.1. “Possession of firea

rms that is mere ly coincidenta l to the underly ing felony offe nse is insufficient” to war rant an application of the enhanc ement. United States v. Taylor , 648 F.3d 417, 432 (6th Cir. 2011). We revie w the sentenc ing court’s fac tual finding s for clea r err or and acc ord “due defe renc e” to the sentenc ing court’s deter mination that the firea

rm was used or possessed “in connec tion with” the other f

elony

. Id. at 430-31. Shannon arg

ues that the g overnme nt failed to satisfy its burden and offe red no proof that the firea rm was possessed in connec tion with the drug s or another felony

. When c onsidering whether there is a connec tion betwee n a g un and a drug offe nse, we consider the proxi mity of the g un to the drug s and whether the defe ndant has an innocent explanation for the firea rm. Id

. at 432. Howeve r,

an “alter native explanation for the prese nce of a g un does not prec lude that g un from also being used to fac ilitate a drug offe nse.” United States v. Oglesby , 210 F. App’x 503, 507 (6th Cir. 2007)

. The close proxi mity of the firea rm and the drug s, while not dispositi ve, is itself evidenc e of a n ex u s betwee n the two. See United States v. Davis , 372 F. App’x 628, 629 (6th Cir. 2010) (noting that “we have stopped short of finding close proxi mity dispositi ve” and instead have held proxi mity is “ce rtainly indicative of a

connec tion between the g uns and the drug s”). The district court never expli cit l y s t at ed what specific drug offe nse constituted the independe nt felony connec ted to the firea rm, but it n oted that Shannon had no visible means of support, which sug g ests that Shannon was involved in drug traff icking as opposed to mere ly car rying the drug s for persona l use. This infere nce is further s u p p o rted by Shannon’s statement to the - 3 -No. 11-3582

United States v. Shannon probation office r that he did not use cra ck coca ine–with the exception of one occa sion w ithout his prior knowledg e–and that he did not enjoy the experience

. This evidenc e distinguishes United States

v. Shields , a case on which Shannon relies, wher e this court held that the § 2K2.1(b)( 6) enhanc ement did not apply to a defenda nt who was caught car

rying a gun wi t h a sm all amount of m arijuana , in part beca use the g overnment prese nted no evidenc e that the defe ndant was eng ag ed in drug traff icking

. 664 F.3d 1040, 1045 (6th Cir. 2011). The district court proper ly applied the four- level enhanc ement. I I I

. Shannon ar gues that the district court abused its discretion when it order ed, as a specia l condition of s u p ervised rele ase, that he comply with SORNA’s reg istration require ment. Specifica lly , he contends that t h e district court must g ive a rationale in open court for mandating specia l conditions of supervised rele ase, which the court did not do here

. But Shannon is mistaken about the nature of the condition a t issue. A require ment to reg ister under SORNA is a mandatory (or so-ca lled “explicit”) condition of supervised rele ase, rathe r than a specia l condition of it. See 18 U.S.C. § 3583(d); accord United States v. Ossa-G a l l eg o s , 491 F.3d 537, 540 (6th Cir. 2007) (en banc)

. Thus, if Shannon met SORNA’s reg istration require ments, the district court was statutorily require d to impose reg istration as a c ondition of supervised re lease

. Additionally , Shannon challeng es the proce dure by whi ch the district court imposed the condition of supervised rele ase, arguing that the district co u rt did not clea rly deter mine at the sent e n c in g h ear ing whether his previous conduct was “compa rable to or more sever e than ag g ravated sexual abuse or an attempt or conspirac y to commit such an offe nse” as d ef i n ed b y the SORNA - 4 -No. 11-3582

United States v. Shannon provision which re quires re g istration by juveniles ag e 14 or older who ar e adjudicated delinquent. 42 U.S.C. § 16911(1), (8)

. Ag g ravated sexual abuse is define d, in part, as knowing ly causing , or attempting to cause , another person to eng ag e in a se x ual ac t by using force ag ainst that person or threatening death, serious b o d i l y h arm, or kidnapping

. 18 U.S.C. § 2241(a)

. Shannon was adjudicate d delinquent for g ross sexual imposit ion, whi ch i s d ef i ned under Ohio law as the p u rp o s ef u l compul sion of another person to submit to sexual contac t by forc e or threat of forc e. Ohio Rev. Code § 2907.05(A) (1). We revie w de novo a district court’s imposit ion of a mandatory condition of supervised rele ase. United States v. Marlow , 278 F.3d 581, 583 (6th Cir. 2002). Shannon was at least fourtee n y ear s of ag e at the time of the juvenile offe nse. The district court stated that the incident “could have turned int o a rape situation,” that it “could have been m uch uglier than the ul timate dispositi on of the case ,” and that the GSI “sounds like it could have turned pretty violent.” Thus, even though the district co u rt d i d not expressly state t hat t his offe nse was compar able to ag g ravated s exual abuse, its comments amounted to such a finding . Although the court could have stated more clearly that the compar ability require ment was met, the rec o rd h er e s h o ws that it was. The district court, there fore , corr ectly

decide d that Shannon must comply with SORNA. I V. Shannon argues that the district court’s imposit ion of the SORNA reg istration require ment violates the Ex Post Fa cto Clause of the U.S. Constit ution. Howeve r, the Ex Post Fa cto Clause does not forbid adoption of civil, regulatory measure s with retroa ctive operation. See Smith v. Doe , 538 U.S. 84, 92 (2003) (finding Alaska’ s sex-offende r r e g is tr ation statute not punitive, but civil in nature , - 5 -No. 11-3582

United States v. Shannon

an d n ot in violation of the Ex Post Fa cto Clause). A statute civil in nature cannot i m p o s e punishment. Kan. v. Hendrick s , 521 U.S. 346, 361 (1997); see Doe v. Bredese n , 507 F.3d 998, 1003 (6th Cir. 2007). I n United States v. Felts , 674 F.3d 599, 60 6 (6 t h Cir. 2012), we held that SORNA’s

re gi s t ration require ments do not violate t he Ex Post Fa cto C lause, as the s tatute does not incre ase the puni shment for the past con v i ction; rathe r, i t provides for a conviction for failing to reg ister. At issue in this case is whether SORNA’s juvenile reg is t ra t i o n provision is never theless punitive beca

use, as Shannon argues, its eff ect is punitive. See Doe , 538 U.S. at 92-93. The juvenile reg istration provision states: The term “convic ted” or a varia nt there of, used with respe ct to a sex offe nse, includes adjudicat ed delinquent as a juvenile for that offe nse, but only if the offe nder is 14 y ear s of ag e or older at the time of the offe nse and the offe nse adjudicate d was compar able to or more sever e than ag g ravated sexual abuse (as descr ibed in section 2241 of title 18, United States Code [18 US C S § 2241]), or was an attempt or conspirac y

to commit such an offe nse. 14 U.S.C. § 16911(8). I n evaluating the punitive eff ect of SORNA’s juvenile reg istration provision,

we c onsider only

the “c lear est proof,” Doe , 538 U.S. at 92, and the f actor s spelled out in Kennedy v. M en d o za-Martinez , 372 U.S. 144 (1963), in relation to the s tatute on its fac e. Seling v. Y oung , 531 U.S. 250, 262 (2001). I n Doe , the S upreme Court applied the Mendoza- Martinez fac tors and set forth the standard for evaluating whether a sex offe nder reg istration program violates the Ex Post Fa ct o Clause. Doe, 538 U.S. at 97-105. Other circ uits have applied the Doe analy sis in deciding

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United States v. Shannon wh et her SORNA reg istration for a juvenile sex offe nse violates the Ex Post Fa cto Cla u s e. 2 L ikewise, we consider “whe ther, in its nece ssary operation, the reg u la to r y s c heme: has been reg arde d in our history and traditions as a punishment; imposes an aff irmative disability or restra int; promotes the traditional ai m s o f p unishment; has a rational connec tion to a nonpunitive purpose; or is excessive with respe ct to this purpose.” Doe , 538 U.S. at 92, 97. The Doe Court stated that “[o] ur sy stem does not treat dissemination of truthful information in further ance of a leg itimate g overnme ntal objective as punishment.” Id

. at 98. Additionally , there is “no rema ining require ment under SORNA that jurisdictions publicly disclose information about

sex offe nders whose predic ate sex offe nse ‘convictions’ are juvenile delinquency adjudications.” See Offic e of the Attorney Gen., U.S. D ep’t of J ustice, Supplemental Guidelines for Sex Offende r Reg istration and Notification, 76 Fe d. Reg

. 1630, 1632 (2011). Thus, the first Doe g uidepost leads

us to conclude that SORNA is not “so punitive either in purpose or eff ect as to neg ate” Congr ess’s intention to make it a civil regulatory statute, and it should not be equate d with our nation’s historical and tra ditional punishm ents. Doe , 538 U.S. at 92.

See United States v. Elkins , 683 F.3d 1039 (9th Cir. 2012) (conc luded that applying SORNA 2 to Elkins based on his state convic tion as a juvenile sex offe nder is not punitive); United St ates v. Juve nile Male , 670 F.3d 999, 1008 (9th Cir. 2012) (“ Ju ve n i l e Ma le II

”) (finding that beca

use SORNA was the later- enac ted, more specific prov i s i o n , and beca use Congr ess was awa

re of the Fe dera l J uvenile Delinquenc y Act (“F J DA”) , 18 U.S.C. § 031 et s eq . , “t h e district court proper ly applied SORNA’s reg istration require ments to the juvenile defe ndants in these case s ” an d not all applications of SORNA to individuals based on juvenile sex offe nder deter minations are sufficie ntly punitive to violate the Ex Post Fa cto Clause); United States v. W .B.H. , 664 F.3d 848, 860 (11th Cir. 2011) (holding that the SORNA reg istration require ment is not punitive in eff ect such that it violates the Ex P ost Fa cto C lause when the defendant, convicted of a post -SORNA crime that is not a sex offe nse, is require d to reg ister as a condition of supervised rele ase beca use of a “pre -SORNA, Alabama Youthful Off

ender conviction that is a sex offense .”).

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United States v. Shannon Next, we consider whether SORNA imposes an “af firmative disability or restra int” on those it regulates. Id

. at 100. Shannon is not phy sically restra ined by the SORNA reg istration require ment, nor is he likely to be more than inconvenienc ed by its conditions. Thus, SORNA does not rise to the level of

imposit ion of aff

irmative disability

or re straint upon Shannon. T h ird , w e c o n sider whether SORNA promotes the traditional aims of punishment, retrib uti o n and deter renc e. Id

. at 102. L ike the Alaska statute in Doe , SORNA’s regulatory reg ime is

rea sonably

related t o the dange r of rec idivism posed by sex offe nders. SORNA allows the public and law enfor ceme nt to deter mine the wher eabouts of convicted s ex o ffenders, but it does not direc tly restric t their mobilit y , employ ment, or how they spend their time. We have deter mined that SORNA in not puniti ve in nature

. Felts , 674 F.3d at 606. There fore , we find that SORNA does not promote the traditional aims of punishment. The question of whether SORNA has a rational relationship to a nonpunitive purpose is the “most signific ant” fac tor in deter mining whether a sex offe nder reg istration sy stem is nonpunitive. Do e , 5 3 8 U.S

. at 102. The Court in Doe rec og nized that the Alaska sex offe nder reg istry had t h e leg itimate nonpunitive purpose of promoting public safe ty “by aler ting the public to the risk of sex offe nders in their communit[ y ].” Id

. at 103 (quotation marks omitted). The same is true of SORNA. Finally , we deter

mine whether SORNA is excessive with respe ct to its nonpunitive purpose. The excessiveness question is n o t t o d et ermine “whe ther the leg islature made the best choice possible to addre ss the problem it seeks to reme dy ,” but rathe r “whe ther the reg ulatory means chosen

are rea sonable in light of the nonpunitive objective.” Id

. at 105. Wit h respe ct to the Tenne ssee state

sex offe nder reg istry , we found the regulatory scheme an d i t s re porting require ments not to be - 8 -No. 11-3582

United States v. Shannon excessive in Doe v. Bredese n , 507 F.3d at 1006. SORNA’s regulatory purpose and the means used to achie ve it is not materia lly differ ent from that of the Alaska statute in Doe or the Tenne ssee state reg istry

. Unac knowledg ed by Shannon, the Guidelines issu ed b y t h e At torney Gene ral allow for possible exemption from the dissemination of S hannon’s information. Thus, the degree to which his information may be publicized is not at the level of “punishment” that Shannon would have this court believe SORNA require s. Fur ther, as acknow ledg ed by the Eleventh Circuit in W .B.H. , a lower rate of rec idivism among juveniles does not equate to no rec idivism , and even if adults have a highe r

rec idivism rate , that does not me an that reg istration require ments are excessive. W .B.H. , 664 F.3d at 860. When considere d with the intended saf ety benef its, the SORNA regulatory scheme is not excessive. I n cre ating SORNA, Congr ess intended not to impose an additional punishment for past sex offe nses but instead to est ab l i sh a civil regulatory scheme

. Doe require s the “cle are st proof” that S ORNA is so punitive in eff ect, as applied to juvenile delinquents, as to neg ate that intention. Be cause Shannon has not offe red the clea rest proof to contra dict Congr ess’s intention, we reject Shannon’s ex post facto cha lleng e of SORNA’ s application to him. AF F IRMED.

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