The Sixth Circuit Court of Appeals ruled this week that a person can be found guilty of a Sex Offender Registry and Notification Act (SORNA) violation, even if SORNA wasn't technically implemented in his state at the time he was convicted of the SORNA violation.
Sure, this sounds like an ex post facto conviction, but the Sixth Circuit assures us that it's not, and that the conviction stands.
David Wayne Felts served 15 years in prison for rape and aggravated sexual battery. After his release, he moved with his girlfriend and their daughter to Puerto Rico. One problem: He didn't notify the registration authorities back in his home state of Tennessee.
Felts was indicted for failure to register under SORNA, and later pleaded guilty. He was sentenced to 24 months.
Felts appealed, challenging his indictment on the grounds that Tennessee had not substantially implemented SORNA at the time that he was indicted. The Sixth Circuit Court of Appeals joined the six other circuits that have addressed the issue and concluded that Felts could still be indicted and convicted of a SORNA violation.
The reason? SORNA creates a federal duty to register with the relevant, existing state registries regardless of whether the state has implemented the specific, additional SORNA requirements. Since Tennessee had a sex offender registry at the time that Felts was released from prison, he could have complied with SORNA's registration requirements by registering with the existing sex offender registry, even though the state had not implemented SORNA's administrative procedures.
While we certainly appreciate a creative defense strategy, the circuits have spoken: Using a state's deficiencies as a defense to a SORNA violation isn't won't keep your client out of jail.