United States v. Hardeman

The application of 18 U.S.C. § 2260A, which criminalizes committing certain federal offenses while under a legal duty to register as a sex offender, does not violate the Ex Post Facto Clause, even if the defendant’s registration duty arose retroactively.

Title 18 U.S.C. § 2260A imposes a ten-year prison sentence for committing certain federal offenses involving a minor while subject to a sex-offender registration requirement. Gary Hardeman was indicted on one count of engaging in illicit sexual conduct in a foreign place in violation of 18 U.S.C. § 2423(c) and, because he was subject to a sex-offender registration requirement under California law, one count of violating § 2260A. In the 1980s, Hardeman was convicted of two crimes requiring him to register as a sex offender. Hardeman succeeded in having both convictions expunged. At that time, California law required registration until expungement of conviction. Later, however, California law was amended to require ongoing registration irrespective of expungement. The district court dismissed the § 2260A count on the basis that it violated ex post facto principles, because Hardeman’s duty to register resulted from retroactive state laws. Subsequently, the government brought this interlocutory appeal. The application of a law violates the Ex Post Facto Clause if it “(1) is retrospective, that is, it must apply to events occurring before its enactment, and (2) increases the penalty by which a crime is punishable.” Hardeman argued that § 2260A provided additional punishment for his 1980s crimes. The Ninth Circuit panel disagreed, analogizing § 2260A to ordinary recidivism statutes, which the Supreme Court has held do not violate ex post facto principles on the basis that “the enhanced penalty punishes only the latest crime and is not retrospective additional punishment for the original crimes.” Moreover, the panel noted that the sentence imposed by § 2260A is based on the § 2423(c) count, not Hardeman’s prior convictions. With the foregoing in mind, the panel reversed the district court’s order dismissing the § 2260A count. REVERSED and REMANDED.