United States v. Anthony Pretty on Top

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2021
• Docket: 20-30202
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30202

Plaintiff-Appellee, D.C. No. 1:19-cr-00135-DLC-1

v.

ANTHONY PRETTY ON TOP, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Anthony Pretty On Top appeals his bench-trial conviction for failure to

register as a sexual offender under the Sex Offender Registration and Notification

Act (“SORNA”), in violation of 18 U.S.C. § 2250(a), arguing that the district court

should have granted his motion for a judgment of acquittal because SORNA is

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). constitutionally infirm as applied to juvenile offenders. We have jurisdiction under

28 U.S.C. § 1291. Reviewing de novo, see United States v. Juvenile Male, 670

F.3d 999, 1009 (9th Cir. 2012), we affirm.

Pretty On Top contends that, because he was a juvenile when he committed

the underlying sex offense, the application of SORNA to him violates the Ex Post

Facto Clause and the Eighth Amendment, as well his rights to due process and

equal protection. Pretty On Top’s arguments are foreclosed. See United States v.

Elkins, 683 F.3d 1039, 1041 (9th Cir. 2012) (holding that, because SORNA’s

requirements are not punitive, it is not a violation of the Ex Post Facto Clause to

apply SORNA to a defendant based on his conviction as a juvenile sex offender);

Juvenile Male, 670 F.3d. at 1008-14 (rejecting due process, equal protection, and

Eighth Amendment challenges to SORNA’s registration requirements as applied to

juvenile offenders). While Pretty On Top argues that this court “should readdress

the issue of whether SORNA as it pertains to juvenile delinquents is

constitutionally infirm,” he does not point to any authority that is “clearly

irreconcilable” with our previous decisions. See Miller v. Gammie, 335 F.3d 889,

900 (9th Cir. 2003) (en banc) (three-judge panel is bound by prior precedent unless

that precedent is “clearly irreconcilable” with an intervening decision of a higher

court).

To the extent Pretty On Top contends that SORNA’s registration

2 20-30202 requirements violate the Ex Post Facto Clause because he could potentially obtain

relief from his registration requirements under Montana law while still being

required to register under SORNA, we agree with the district court that this claim

is not ripe. See Texas v. United States, 523 U.S. 296, 300 (1998) (claim is not ripe

if it rests upon future events that may not occur). In any event, this court has

consistently held that SORNA’s registration requirements are nonpunitive, even

where there are differences between the applicable state and federal reporting

requirements. See United States v. Elk Shoulder, 738 F.3d 948, 953-54 (9th Cir.

2013); Elkins, 683 F.3d at 1048-49.

AFFIRMED.

3 20-30202