[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                           FEB 02, 2010
                             No. 09-11189                   JOHN LEY
                         Non-Argument Calendar            ACTING CLERK
                       ________________________

                 D. C. Docket No. 07-00334-CR-1-MHS-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

CARLOS JUAN SIMON-MARCOS,
a.k.a. Lorenzo Antonio Corona,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                            (February 2, 2010)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Carlos Juan Simon-Marcos (“Simon-Marcos”) appeals his conviction under

18 U.S.C. § 2250(a) for failing to register in accordance with the Sex Offender

Registration Notification Act (“SORNA”). On appeal, Simon-Marcos challenges

the validity and applicability of SORNA on various grounds. After reviewing the

record and law, we find no error and AFFIRM Simon-Marcos’ conviction.

                                I. BACKGROUND

      In October 2007, a federal grand jury indicted Simon-Marcos on two counts.

R1-9. Count One charged Simon-Marcos, a previously deported alien, with being

unlawfully found in the United States, specifically Fulton County, Georgia, in

violation of 8 U.S.C. §§ 1326(a) and (b)(2). 

Count Two charged that

Simon-Marcos, a convicted sex offender as defined by SORNA, traveled in

interstate commerce and knowingly failed to register and update his registration in

Georgia, in violation of 18 U.S.C. § 2250. 

      In June 2008, Simon-Marcos filed a motion to dismiss Count Two in which

he alleged the following facts. R1-37. He explained that in 1999, he was

convicted in California state court for committing lewd and lascivious acts with a

minor. 

He participated in California’s sex offender registration program

and registered as a sex offender six separate times. 

his 1999 probated

sentence was revoked, and he was incarcerated until his deportation on 27



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September 2006. 

deportation, Simon-Marcos was found in Atlanta

on 17 August 2007. 

that he never received notice of a

requirement to register under SORNA. 

2008, the magistrate judge issued a report that recommended

the court deny Simon-Marcos’ motion to dismiss. R2-47. Ultimately, the district

court adopted the magistrate judge’s report and recommendation denying Simon-

Marcos’ motion to dismiss Count Two. R2-51. Simon-Marcos subsequently pled

guilty to both counts and accepted a plea agreement. R2-53. In the plea

agreement, Simon-Marcos admitted that he was in fact guilty of the crimes charged

in the indictment, but he reserved the right to appeal the denial of his motion to

dismiss count two. 

2009, the district court sentenced Simon-

Marcos to 60 months of imprisonment on each count to run concurrently. R2-58 at

2. Simon-Marcos filed a timely notice of appeal. R2-59.

                                  II. DISCUSSION

      Simon-Marcos makes five arguments on appeal. First, he argues that no

authority exists to enforce SORNA in states, like Georgia, which have yet to

implement the Act. Second, he contends that his conviction and sentence for

failing to register under SORNA are unconstitutional because he never received

notice of registration requirements in violation of the SORNA statute itself and



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procedural due process. Third, he asserts that SORNA is a violation of Congress’

Commerce Clause authority. Fourth, he maintains that SORNA’s retroactive

application violates the non-delegation doctrine and the Ex Post Facto Clause.

Finally, fifth, Simon-Marcos submits that his conviction under SORNA is

unconstitutional because it violates his right against self-incrimination under the

Fifth Amendment.

         We review a district court’s denial of a motion to dismiss an indictment for

abuse of discretion. United States v. Seher, 

, 1356 (11th Cir. 2009).

However, we review de novo “issues concerning statutory interpretation and

constitutional law.” United States v. Ambert, 

, 1205 (11th Cir.

2009).

         Simon-Marcos’ first four arguments have been previously decided adversely

to him. First, SORNA is enforceable in states which have yet to implement the

Act. See United States v. Brown, 

, 1348-49 (11th Cir. 2009).

Second, the failure to be notified of SORNA registration requirements did not

excuse Simon-Marcos’ duty to register. See 

Third, SORNA is not

a violation of Congress’ Commerce Clause authority. 

(citing 

). Fourth, SORNA’s retroactive application does not violate

the non-delegation doctrine nor the Ex Post Facto Clause. 

1208, 1212-14.

      As for Simon-Marcos’ fifth argument, that registering as a sex offender

would expose him to prosecution for reentry of a previously removed alien under 8

U.S.C. § 1326, we find no Fifth Amendment violation. First, Georgia’s sex

offender registration statute requires a sex offender to register his: name; social

security number; age; race; sex; date of birth; height; weight; hair color; eye color;

fingerprints; photograph; place of residence; place of employment; vehicle make,

model, color, and license tag number; E-mail address, usernames, and user

passwords; the crime which required registration; and the date released from

prison. O.C.G.A. § 42-1-12 (a)(16)(A) - (L) (2009). Simon-Marcos cannot show,

and does not attempt to show, that anything he would have been required to

provide under Georgia’s sex offender statute would have confronted him with a

substantial hazard of self-incrimination – there are no nationality, visa, or other

immigration details required to be submitted.

      Second, we rejected a similar argument in United States v. Crawford, 

, 1533-34 (11th Cir. 1990), where a defendant argued that his conviction

for possessing an unregistered firearm should be set aside because requiring him to

register the firearm would violate his privilege against self-incrimination since he

was a convicted felon. We held that the firearm registration requirement did not



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violate the defendant’s Fifth Amendment privilege and noted that “there is a

difference between using the privilege as a shield against inquisitorial and unfair

governmental practices and using it as a sword to carve a path through the law of

the land.” 

(quotation marks and citation omitted). The cases Simon-

Marcos cites in support of his Fifth Amendment argument are distinguishable from

the facts here because those cases imposed a disclosure requirement largely

designed to discover involvement in criminal activities. See Albertson v.

Subversive Activities Control Board, 

, 77-81, 

, 198-200

(1965) (setting aside order issued by Subversive Activities Control Board requiring

petitioners to register under Subversive Activities Control Act of 1950); Haynes v.

Unites States, 

, 100, 

, 732 (1968) (Fifth Amendment

privilege provided a valid defense for failing to register a sawed-off shotgun);

Marchetti v. United States, 

, 57-61, 

, 707-09 (1968) (Fifth

Amendment privilege provided a complete defense to a prosecution for failure to

register and pay tax on wagering); Leary v. United States, 

, 12-27, 53,

, 1535-43, 1557 (1969) (reversing a conviction under Marijuana Tax

Act). In contrast, SORNA is not designed to uncover criminal behavior, but is

instead intended to protect the public from sex offenders by tracking their interstate

movement. See 

.



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                               II. CONCLUSION

      Simon-Marcos appeals his conviction under 18 U.S.C. § 2250(a) for failing

to register in accordance with the Sex Offender Registration Notification Act. We

hold: (1) Georgia’s failure to implement SORNA did not affect Simon-Marcos’

duty to register as a sex offender under SORNA; (2) the government did not

violate SORNA or Simon-Marcos’ due process rights because sufficient

circumstances should have prompted Simon-Marcos to inquire into his duty to

register; (3) SORNA’s registration requirement and penalty provision constitute a

proper exercise of Congress’s Commerce Clause power; (4) the retroactive

application of SORNA does not violate the non-delegation doctrine nor the Ex Post

Facto Clause; and (5) SORNA’s registration requirement did not violate Simon-

Marcos’ Fifth Amendment right against compelled self-incrimination.

Accordingly, Simon-Marcos’ conviction is AFFIRMED.




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