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October 8, 2009

Fifth Circuit panel rejects ex post facto challenge to SORNA

Astute readers may recall that last week the Supreme Court granted cert in Carr v. United States to address whether the Ex Post Facto Clause precludes some prosecutions under the new federal Sex Offender Registration and Notification Act.  Interestingly, this week a Fifth Circuit panel in US v. Young, No. 08-51047 (5th Cir. Oct. 7, 2009) (available here) provided its own assessment.  Here is how the Young opinion starts:

Norman Lamar Young – a sex offender – appeals his conviction under 18 U.S.C. § 2250(a) for traveling in interstate commerce and then knowingly failing to update his registration information as required by the Sex Offender Registration and Notification Act (SORNA). Young contends that, as applied to him, SORNA violates his constitutional right to be free from ex post facto punishment. It does not, so we affirm.

If Norman Lamar Young seeks cert and the Supreme Court comes to a different view in Carr, I assume Young will get a helpful GVR.  But I wonder if it would have been more sensible and efficient for the Young court to have just held on to this appeal until the Supreme Court decides Carr.

October 8, 2009 at 09:14 AM | Permalink


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The Fifth Circuit has perfunctorily ignored Supreme Court death penalty precedent, such that the Supreme Court actually issued an opinion criticizing them for it. No reason to hold off on affirming a collateral consequence, which has about the same chance of going down as a conviction on habeas in the Fifth.

Sort of an oddity...despite that the Fifth Circuit has expressly and openly ignored Supreme Court death penalty precedent (even for cases on remand), the Ninth is the one with the bad rap...

Posted by: Res ipsa | Oct 8, 2009 9:23:47 AM

Res ipsa --

The Ninth Circuit got its bad rap the old-fashioned way; it earned it.

See the reversal statistics compiled by the Harvard Law Review, in paricular in Table II, p. 427.


Posted by: Bill Otis | Oct 8, 2009 10:10:10 AM

Facts of Young are significantly different from Carr. Carr's travel took place before SORNA and his failure to register did not violate federal law at the time he arrived in his new state. Young's travel and failure to register took place after passage of SORNA and issuance of AG regs, so he cannot avail himself of statutory defenses that permit avoidance of constitutional issue in Carr.

Posted by: margy love | Oct 8, 2009 11:43:54 AM

Bill--no doubt the Ninth is on the liberal fringe, which is why it gets reversed so frequently. (Though I imagine that the Warren era would have been kinder to the sprawling Ninth.) I'm not suggesting that the Ninth doesn't deserve some type of bad rap/mockery.

I was just suggesting that, when comparing a circuit that issues opinions that the Supreme Court considers too liberal versus a circuit that openly flouts the Supreme Court's direct orders, even on remand, the latter is deserving of far more chastisement. To my knowledge, the opposite has occurred.

Posted by: Res ipsa | Oct 8, 2009 1:30:00 PM

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