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6th Circuit Upholds SORNA Conviction Despite Incomplete State "Implementation"

6th Circuit Upholds SORNA Conviction Despite Incomplete State "Implementation"

By Derek Gilna

David Wayne Felts' conviction for failure to register under the Sex Offender Registration Notification Act (SORNA) was upheld by the Sixth Circuit Court of Appeals, which rejected his various arguments which revolved around the question of whether or not a conviction can stand when his home state has not yet fully complied with the implementation of the statute. Unfortunately for the defendant, the Court ruled against him, following the lead of six other circuits in this case of first impression.

According to SORNA, a sex offender has a duty to "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," 42 U.S.C., Section 16913(a), and "not later than 3 business days after each change of name, residence, employment, or student status to appear in person" to update his registration information. 42 U.S.C. Section 16913(c).

SORNA, passed in 2006, gave the states three years to implement the registration requirements of the act, but Tennessee had failed to complete this process when the defendant was arrested and convicted. In rejecting the defendant's attack on his conviction the court cited the case of U.S. v. Gould, 568 F.3d 459 (4th Circuit 2009), which held that "the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA's requirement that a sex offender register applies whether registration would be accomplished through pre-SORNA registration facilities or under SORNA-compliant programs."

The Appellate Court also rejected the defendant's facial challenge that no one could be prosecuted for a SORNA violation if they resided in a state which was not fully SORNA-compliant. The court found that where "a non-compliant state-law contains all of the requirements that SORNA requires, and offender has fair notice...(that he must) fulfill all of the requirements under federal law...Under any conceivable definition of the word ‘register,’ Felts did not register."

The court also rejected attacks based upon alleged violation of the Constitution's Ex Post Facto clause, as well as Tenth Amendment deficiencies, since the state is free to not comply with SORNA if they choose not to accept federal funding. See: United States v. Felts, 674 F.3d 599 (6th Cir., 2012).

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Related legal case

United States v. Felts