United States v. Gary Hardeman

Title 18 U.S.C. § 2260 A 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 Harde-man 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 § 2260 A. The district court held that, because Defendant’s duty to register arose through retroactive state laws, the § 2260 A 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, — U.S. -, 131 S.Ct. 3026 , 180 L.Ed.2d 852 (2011), we hold that § 2260 A 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…