United States of America v. Anthony Pretty on Top

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY PRETTY ON TOP,
Defendant-Appellant.
No. 20-30202
D.C. No. 1:19-cr-00135-DLC-1
MEMORANDUM*
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).
FILED
AUG 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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.

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