The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER ADOPTING REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO DISMISS INDICTMENT
Defendant, Harold George Voice, is charged with one court of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). Docket 1. Voice moves to dismiss the indictment filed against him based upon the fact that the Sexual Offender Registration Notification Act (SORNA) is unconstitutional in several respects.
The court referred the motion to dismiss the indictment to the magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge recommends that this court deny Voice's motion to dismiss the indictment in all respects. Voice objects to several legal conclusions in the magistrate judge's report and recommendation. The government has not responded to Voice's objections.
The court must make a de novo review "of those portions of the [Magistrate's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also United States v. Lothridge, 324 F.3d 599 (8th Cir. 2003); Jones v. Pillow, 47 F.3d 251, 253 (8th Cir. 1995). 28 U.S.C. § 636(b)(1) requires that when a party objects to the report and recommendation of a magistrate judge concerning a dispositive matter, "[a] judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see also Fed. R. Civ. P. 72(b). After a de novo review of the magistrate judge's report and recommendation and a review of the record, the court adopts the report and recommendation as supplemented below.
The magistrate judge found that SORNA does not violate the Ex Post Facto clause of the United States Constitution.
A. Prospective Application
The magistrate judge found that SORNA works prospectively because it creates a new punishment for a new offense, which is failing to register as a sex offender after July 27, 2006. Voice objects to this finding, arguing that applying SORNA to him imposes punishment for an act that was not punishable at the time it was committed.
Voice is charged with failing to register between August 5, 2008, and October 2, 2008. This time period is after SORNA's effective date and after the Attorney General's regulations were promulgated clarifying SORNA's applicability to previously convicted sex offenders. Under similar circumstances, in United States v. May, 535 F.3d 912, 919 (8th Cir. 2008), the Eighth Circuit determined that SORNA works prospectively and therefore does not violate the Ex Post Facto Clause. Pursuant to this precedent, the court finds that SORNA applies prospectively and does not violate the Ex Post Facto Clause.
The magistrate judge further determined that SORNA did not retroactively increase Voice's punishment. Voice objects to this finding, contending that SORNA imposes additional punishment to the punishment he received when he was initially convicted of the sex offense in 1998. Voice argues that at the time of his 1998 underlying conviction, he was subject to a Class I misdemeanor penalty for failure to register pursuant to the Jacob Wetterling Act. SORNA increases that penalty to a federal felony that carries up to ten years in prison. Voice urges that this difference in penalties distinguishes his case from the May case.
In May, the Eighth Circuit did not need to address whether SORNA would violate the Ex Post Facto Clause if it subjected a defendant to higher penalties than the statutory scheme in place at the time the defendant committed the initial sex offense, because as a repeat offender, May was already subject to a ten-year statutory maximum under the Lychen Act. Id. at 920, n.4.
The Tenth Circuit in United States v. Hinckley, 550 F.3d 926, 936 (10th Cir. 2008), however, did reach this issue and found that SORNA does not violate the Ex Post Facto Clause. Defendant had argued that the only laws in effect at the time of his offense were state statutes and the Jacob Wetterling Act, which carried lesser penalties than SORNA. In rejecting this argument, the Tenth Circuit adopted the rationale of May that SORNA is a civil retroactive registration scheme that relies on criminal penalties to further its civil intent and does not increase the punishment for acts committed prior to SORNA"s effective date. Id. at 938. Therefore, based upon the Eighth Circuit's rationale in May and the Tenth Circuit's decision ...