USA v. Gary Hardeman

Filing

FILED OPINION (ARTHUR L. ALARCON, SUSAN P. GRABER and MARSHA S. BERZON) REVERSED AND REMANDED. Judge: SPG Authoring, FILED AND ENTERED JUDGMENT. [8471947]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA ,
Plaintiff-Appellant,

No. 11-10540

v.

D.C. No.
3:10-cr-00859RS-1

GARY HARDEMAN ,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted
September 14, 2012—San Francisco, California
Filed January 14, 2013
Before: Arthur L. Alarcón, Susan P. Graber,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Graber

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UNITED STATES V . HARDEMAN
SUMMARY*

Criminal Law
The panel reversed the district court’s order dismissing on
ex post facto grounds a count charging the defendant with
committing an offense involving a minor while under a duty
to register as a sex offender, in violation of 18 U.S.C.
§ 2260A.
The district court held that the § 2260A count violated the
Ex Post Facto Clause because the defendant’s duty to register
arose through retroactive state laws.
The panel disagreed. The panel wrote that even accepting
the defendant’s argument that the state laws applied the
registration requirement to him retroactively, the additional
punishment under § 2260A is not for his earlier crimes, and
the § 2260A count therefore does not violate ex post facto
principles.

COUNSEL
Owen P. Martikan and J. Douglas Wilson, Assistant United
States Attorneys, San Francisco, California, for PlaintiffAppellant.
Daniel P. Blank, Assistant Federal Public Defender, San
Francisco, California, for Defendant-Appellee.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
GRABER, Circuit Judge:
Title 18 U.S.C. § 2260A criminalizes the commission of
certain federal offenses involving a minor while the
perpetrator is under a legal duty to register as a sex offender.
After Defendant Gary Hardeman allegedly traveled to
Mexico and engaged in illicit sexual conduct involving a
minor, the government indicted Defendant on one count of
violating 18 U.S.C. § 2423(c) and, because he was under a
state-law duty to register as a sex offender, one count of
violating § 2260A. The district court held that, because
Defendant’s duty to register arose through retroactive state
laws, the § 2260A count violated the Ex Post Facto Clause,
and the court dismissed that count. Reviewing de novo the
constitutional question in this interlocutory appeal by the
government, United States v. Begay, 622 F.3d 1187, 1193
(9th Cir. 2010), cert. denied, 132 S. Ct. 3026 (2011), we hold
that § 2260A does not violate the Ex Post Facto Clause.
Accordingly, we reverse.
In 1980, Defendant pleaded guilty in California state
court to the felony of committing lewd and lascivious acts
upon a child under the age of 14, in violation of California
Penal Code section 288. At that time, California law required
Defendant to register as a sex offender—but only until
expungement (if any) of the conviction. Cal. Penal Code
§§ 290, 1203.4 (1980). In 1982, before Defendant’s felony
conviction had been expunged, the California legislature
amended its laws so that a felony sex conviction required
ongoing registration, regardless of expungement. Cal. Penal
Code § 290.1 (1982). In 1983, Defendant successfully sought

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expungement of his felony conviction, but he remained under
an ongoing state-law duty to register.
In 1986, Defendant was convicted in state court of
annoying a child, a misdemeanor under California Penal
Code section 647a. At the time, California law required a
misdemeanor sex offender to register as a sex offender—but
only until expungement (if any) of the conviction. Cal. Penal
Code §§ 290, 1203.4 (1986). In 1991, Defendant successfully
sought expungement of his misdemeanor conviction. In
1994, the California legislature amended its laws so that any
sex conviction—felony or misdemeanor—required
continuous registration, regardless of expungement. Cal.
Penal Code § 290.1 (1994).
In 2010, a grand jury indicted Defendant on two counts:
one count of engaging in illicit sexual conduct in a foreign
place, in violation of 18 U.S.C. § 2423(c); and one count of
committing that offense while under a duty to register as a
sex offender, in violation of 18 U.S.C. § 2260A. Defendant
moved to dismiss the § 2260A count on the ground, among
others, that the count violated the Ex Post Facto Clause. The
district court agreed, and it dismissed that count. The
government timely appeals pursuant to 18 U.S.C. § 3731.
Title 18 U.S.C. § 2260A states:
Whoever, being required by Federal or
other law to register as a sex offender,
commits a felony offense involving a minor
under [specified sections, including section
2423], shall be sentenced to a term of
imprisonment of 10 years in addition to the
imprisonment imposed for the offense under

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that provision. The sentence imposed under
this section shall be consecutive to any
sentence imposed for the offense under that
provision.
In effect, § 2260A provides that, if the government proves
that a defendant was subject to a sex-offender registration
requirement at the time he or she committed certain sex
crimes involving a minor, he or she will receive an additional
10 years of imprisonment. The § 2260A count against
Defendant violates ex post facto principles1 only if it: (1) is
“retrospective, that is, it must apply to events occurring
before its enactment,” Weaver v. Graham, 450 U.S. 24, 29
(1981); and (2) “increases the penalty by which a crime is
punishable,” Cal. Dep’t of Corr. v. Morales, 514 U.S. 499,
507 n.3 (1995).2
Defendant argues that the combination of § 2260A and
California’s registration laws—which he asserts applied
retroactively to him—violates ex post facto principles. He
acknowledges that the application of California’s registration
laws to him, standing alone, is constitutional. See People v.
1

Defendant also urges us to affirm on the alternative ground that the
§ 2260A count violates the Due Process Clause. To the extent that
Defendant’s due process argument depends on a determination that the
§ 2260A count violates the Ex Post Facto Clause, we reject that argument
for the same reasons that we reject his ex post facto challenge. T o the
extent that Defendant’s due process arguments in the district court
concerned other issues, those issues are not before us, and we do not
resolve them in this appeal, which concerns only the dismissal of the
indictment.
2

The other type of ex post facto laws concerns a criminal statute that
retroactively forbids conduct that used to be permissible. Here, Defendant
claims only a retroactive increase in punishment.

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Fioretti, 63 Cal. Rptr. 2d 367, 370–71 (Ct. App. 1997)
(holding that retroactive application of the state sex offender
registration laws does not violate the Ex Post Facto Clause);
see also People v. Castellanos, 982 P.2d 211, 217–18 (Cal.
1999) (holding that a similar California retrospective
registration requirement does not violate the Ex Post Facto
Clause); Smith v. Doe I, 538 U.S. 84 (2003) (holding that
retrospective application of an Alaska sex-offender
registration statute does not violate the Ex Post Facto Clause);
Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004) (holding,
under AEDPA review, that retroactive application of
California Penal Code section 290 does not violate the Ex
Post Facto Clause). The reason why those laws, standing
alone, do not violate ex post facto principles is that
registration itself is not considered punitive. Fioretti, 63 Cal.
Rptr. 2d at 370. In Defendant’s view, § 2260A provides the
missing element of additional punishment for his 1980s
crimes. We disagree.
Even accepting Defendant’s argument that the state laws
applied the registration requirement to him retroactively, an
issue we need not decide, the additional punishment under
§ 2260A is not for his earlier crimes. In this regard, we see
no material difference between § 2260A and ordinary
recidivism statutes—statutes that provide enhanced penalties
for previously convicted persons. The Supreme Court has
long held that recidivism statutes do not violate the Ex Post
Facto Clause because the enhanced penalty punishes only the
latest crime and is not retrospective additional punishment for
the original crimes. “When a defendant is given a higher
sentence under a recidivism statute[,] . . . 100% of the
punishment is for the offense of conviction. None is for the
prior convictions or the defendant’s ‘status as a recidivist.’”
United States v. Rodriquez, 553 U.S. 377, 386 (2008); see

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also Nichols v. United States, 511 U.S. 738, 747 (1994)
(“[T]his Court consistently has sustained repeat-offender laws
as penalizing only the last offense committed by the
defendant.” (internal quotation marks omitted)); Gryger v.
Burke, 334 U.S. 728, 732 (1948) (“The sentence as a [repeat
offender] is not to be viewed as [an] . . . additional penalty for
the earlier crimes. It is a stiffened penalty for the latest
crime, which is considered to be an aggravated offense
because a repetitive one.”). Similarly, if Defendant is
convicted, 100% of the punishment provided by § 2260A will
be for Defendant’s recent alleged conduct in Mexico. None
will be for his prior convictions or for his resultant status as
a sex offender.
We also see no material difference between § 2260A and
the provision of the Sex Offender Registration and
Notification Act (“SORNA”) that criminalizes failing to
register as a sex offender when under a SORNA registration
duty. SORNA criminalizes certain conduct—failing to
register—if under a duty to register, even if that duty arose
retroactively. 18 U.S.C. § 2250(a). Similarly, § 2260A
criminalizes certain conduct—illicit sexual conduct involving
a minor—if under a duty to register, even if that duty arose
retroactively. In United States v. Elkins, 683 F.3d 1039, 1045
(9th Cir. 2012), we joined our sister circuits in holding that
SORNA does not violate the Ex Post Facto Clause, even
where the registration duty arose retroactively. “SORNA
provides for a conviction for failing to register; it does not
increase the punishment for the past conviction.” Id.
Similarly, § 2260A provides for a conviction for committing
certain crimes while under a duty to register; it does not
increase the punishment for the past conviction. See also
United States v. Arzate-Nunez, 18 F.3d 730, 734–35 (9th Cir.
1994) (holding that a sentencing enhancement for a prior

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aggravated felony conviction did not violate the Ex Post
Facto Clause even though, at the time the defendant
committed the previous offense, the conviction did not
qualify as an aggravated felony).
Had Congress expressly specified that enhanced penalties
would apply to persons—like Defendant—who have been
convicted of violating California Penal Code section 288 in
1980, regardless of expungement, the Ex Post Facto Clause
plainly would not be implicated. That Congress chose instead
to use a shorthand method that achieves the same thing in this
case does not change the result: The § 2260A count against
Defendant does not violate ex post facto principles.
Accordingly, we reverse the district court’s dismissal of that
count and remand for further proceedings.
REVERSED and REMANDED.

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