PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4839
WILLIAM THOMAS HATCHER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, Chief District Judge.
(1:07-cr-00012-jpj)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4845
RICHARD DEAN HINEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, Chief District Judge.
(2:07-cr-00005-jpj)
2 UNITED STATES v. HATCHER
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-5008
GREGORY V. ROBERTS,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(6:07-cr-70031-nkm)
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 07-5070
JOHN EDWARD SAWN, III, a/k/a
John Edward Sawn,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Lynchburg.
Norman K. Moon, District Judge.
(6:07-cr-00020-nkm-1)
Argued: October 30, 2008
Decided: March 13, 2009
Before KING, GREGORY, and SHEDD, Circuit Judges.
UNITED STATES v. HATCHER 3
Reversed and vacated by published opinion. Judge Gregory
wrote the majority opinion, in which Judge King joined.
Judge Shedd wrote a dissenting opinion.
COUNSEL
ARGUED: Christine Madeleine Spurell, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for
Appellants. Jennifer R. Bockhorst, OFFICE OF THE
UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: Larry W. Shelton, Federal Public
Defender, Roanoke, Virginia; Randy V. Cargill, Nancy C.
Dickenson, Assistant Federal Public Defenders, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia,
for Appellants. Julia C. Dudley, Acting United States Attor-
ney, Roanoke, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
In these consolidated appeals, William T. Hatcher, Richard
Dean Hinen, Gregory V. Roberts, and John Edward Sawn
appeal their convictions. Each of the Appellants was con-
victed of knowingly failing to register or update their registra-
tion as required by the Sex Offender Registration and
Notification Act ("SORNA"), in violation of 18 U.S.C.
§ 2250(a) (2006). The Appellants argue that SORNA is
unconstitutional because it is not a valid exercise of congres-
sional authority and because it violates the non-delegation
doctrine, the Ex Post Facto Clause, and the Due Process
Clause of the Fifth Amendment. However, we need not reach
these constitutional questions because we find that, as a mat-
ter of statutory interpretation, SORNA’s registration require-
ments did not apply to the Appellants at the time they
4 UNITED STATES v. HATCHER
committed the acts giving rise to their indictments. Therefore,
we must reverse the convictions and vacate the sentences
imposed in connection with those convictions.
I.
The Appellants were convicted of sex offenses in state
courts between 1993 and 2001. All of the Appellants had fin-
ished serving the sentences imposed on them for those
offenses prior to July 27, 2006, the enactment date of
SORNA. As a result of their convictions, the Appellants were
required to register under the sex offender registration sys-
tems of their respective states, and all of the Appellants ini-
tially complied with those registration requirements. At
various times between July 27, 2006, and February 28, 2007,
the Appellants moved to other states and failed to comply
with SORNA’s continuing registration requirements.
The Appellants were indicted on one count of traveling in
interstate or foreign commerce and knowingly failing to regis-
ter or update a sex offender registration as required by
SORNA, in violation of 18 U.S.C. § 2250(a) (2006). Each of
the Appellants was indicted after February 28, 2007.1 The
Appellants filed motions to dismiss their respective indict-
ments, but those motions were denied by the district courts.2
Hatcher, Roberts, and Sawn each entered a conditional guilty
plea, preserving the right to appeal the denial of the motion
to dismiss. Hinen was convicted in a jury trial.
1
Hatcher was initially charged via criminal complaint on February 23,
2007, with violating 18 U.S.C. § 2250(a) (2006), but he was later indicted
for the same charge on March 6, 2007.
2
Hinen and Roberts argued in their motions to dismiss that the Western
District of Virginia was an improper venue for the action, but the district
courts found venue to be proper. Because we hold that the district courts
erred in denying the Appellants’ motions to dismiss on other grounds, we
need not consider this alternative ground for reversal.
UNITED STATES v. HATCHER 5
Hatcher was sentenced to three years probation and ordered
to pay a mandatory special assessment. Hinen was sentenced
to three years probation, fined $450, and ordered to pay a
mandatory special assessment. Roberts was sentenced to time
served, five years supervised release, and ordered to pay a
mandatory special assessment. Sawn was sentenced to thirty
months imprisonment, five years supervised release, and
ordered to pay a mandatory special assessment. The Appel-
lants timely appeal.
II.
This Court reviews de novo the district court’s denial of a
motion to dismiss an indictment where the denial depends
solely on questions of law. United States v. United Med. &
Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993);
see also United States v. Brandon, 298 F.3d 307, 310 (4th Cir.
2002).
III.
A.
On July 27, 2006, the Adam Walsh Child Protection and
Safety Act of 2006 ("AWA") was signed into law. Pub. L.
No. 109-248, §§ 101-55, 120 Stat. 587, 590-611 (2006). Title
I of the AWA is SORNA, which was enacted for the purpose
of "protect[ing] the public from sex offenders and offenders
against children" through the creation of a "comprehensive
national system for the registration of those offenders." 42
U.S.C.A. § 16901 (West 2008). To that end, jurisdictions
must "maintain a jurisdiction-wide sex offender registry" that
complies with the standards set out by SORNA. 42 U.S.C.A.
§ 16912(a) (West 2008). Sex offenders are required to provide
several types of information for inclusion in the sex offender
registry, including their names and aliases, Social Security
numbers, addresses of residences, names and addresses of
places of employment, names and addresses of educational
6 UNITED STATES v. HATCHER
institutions in which the offenders are enrolled, and vehicle
information. 42 U.S.C.A. § 16914(a) (West 2008).
In addition to detailing the kinds of information that must
be included in the sex offender registry, SORNA dictates
when and how convicted sex offenders must register. See 42
U.S.C.A. § 16913 (West 2008). As a general matter, sex
offenders must register and keep their registration current in
each jurisdiction where they reside, work, or attend school. 42
U.S.C.A. § 16913(a) (West 2008). Sex offenders are required
to initially register in one of two ways: if the sex offender was
sentenced to a term of imprisonment for his underlying
offense, he must register before completing the sentence of
imprisonment for that offense; otherwise, the sex offender
must register within three days of being sentenced for the
offense. 42 U.S.C.A. § 16913(b) (West 2008). Following the
initial registration, sex offenders must keep their registration
current by notifying at least one jurisdiction where they are
required to register of all changes of name, residence,
employment, or student status within three days of the
change. 42 U.S.C.A. § 16913(c) (West 2008).
Of particular importance to this appeal is 42 U.S.C.A.
§ 16913(d) (West 2008), titled, "Initial registration of sex
offenders unable to comply with subsection (b) of this sec-
tion." This subsection is located within the same section as the
aforementioned registration requirements. According to
§ 16913(d),
The Attorney General shall have the authority to
specify the applicability of the requirements of this
subchapter to sex offenders convicted before July 27,
2006 [SORNA’s enactment date] or its implementa-
tion in a particular jurisdiction, and to prescribe rules
for the registration of any such sex offenders and for
other categories of sex offenders who are unable to
comply with subsection (b) of this section.
UNITED STATES v. HATCHER 7
To enforce its registration provisions, SORNA includes 18
U.S.C. § 2250(a) (2006), which makes it a federal felony,
punishable by up to ten years imprisonment, inter alia, for a
person who is required to register under SORNA to travel in
interstate commerce and knowingly fail to register or update
his sex offender registration.
On February 28, 2007, after the Appellants had committed
the acts giving rise to their indictments, the Attorney General
issued an interim rule stating that the registration require-
ments of SORNA applied to all convicted sex offenders,
including those offenders who were convicted of sex offenses
prior to the enactment of SORNA ("pre-SORNA offenders").
72 Fed. Reg. 8894, 8896 (Feb. 28, 2007). According to the
Attorney General, the purpose of the interim rule was to
"foreclos[e] any dispute as to whether SORNA is applicable
where the conviction for the predicate sex offense occurred
prior to the enactment of SORNA." Id. The Attorney General
cited § 16913(d) as the source of his authority to promulgate
the rule, "regardless of whether SORNA would apply with
such scope absent this rule." Id.
B.
The Appellants argue that the district courts erred in deny-
ing their motions to dismiss because the registration require-
ments of SORNA did not apply to them at the time they
committed their alleged SORNA violations. The Appellants
were convicted of their underlying sex offenses and had com-
pleted their sentences prior to the enactment of SORNA.
Their indictments for violations of SORNA related to conduct
that was committed sometime between SORNA’s enactment
and the issuance of the interim rule regarding the applicability
of SORNA to pre-SORNA offenders. According to the
Appellants, until the Attorney General issued the interim rule,
SORNA’s application to pre-SORNA offenders was not
established, and thus the Appellants should not have been
charged with violating SORNA’s registration requirements.
8 UNITED STATES v. HATCHER
In order to rule on the merits of the Appellants’ claim, we
must interpret the meaning of 42 U.S.C.A. § 16913(d) (West
2008). Other circuits have recently weighed in on this issue,
albeit with differing results. Compare United States v. Mad-
era, 528 F.3d 852 (11th Cir. 2008) (per curiam) (holding that
SORNA’s registration requirements did not apply to pre-
SORNA offenders until the issuance of the interim rule), with
United States v. May, 535 F.3d 912 (8th Cir. 2008) (holding
that SORNA’s registration requirements applied to pre-
SORNA offenders from the time of SORNA’s enactment) and
United States v. Hinckley, No. 07-7107, 2008 U.S. App.
LEXIS 24989 (10th Cir. Dec. 9, 2008) (same).
To ascertain the meaning of § 16913(d), this Court must
first examine the plain language of the subsection. See Hill-
man v. IRS, 250 F.3d 228, 232 (4th Cir. 2001). As a general
rule, "when the terms of a statute are clear, its language is
conclusive and courts are ‘not free to replace . . . [that clear
language] with an unenacted legislative intent.’" United States
v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (quoting INS
v. Cardoza-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J.,
concurring)). This Court recognizes two "exceptionally rare"
exceptions to this rule: (1) "when literal application of the
statutory language at issue produces an outcome that is
demonstrably at odds with clearly expressed congressional
intent to the contrary," and (2) "when literal application of the
statutory language at issue ‘results in an outcome that can
truly be characterized as absurd.’" Hillman, 250 F.3d at 233
(quoting Sigmon Coal Co. v. Apfel, 226 F.3d 291, 304 (4th
Cir. 2000)).
Only if we determine that the terms of a statutory provision
are ambiguous are we then permitted to consider other evi-
dence to interpret the meaning of the provision, including the
legislative history and the provision’s heading or title. See
Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) ("[W]e
do not resort to legislative history to cloud a statutory text that
is clear."); Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co.,
UNITED STATES v. HATCHER 9
331 U.S. 519, 528-29 (1947) ("[T]he title of a statute and the
heading of a section cannot limit the plain meaning of the
text. For interpretative purposes, they are of use only when
they shed light on some ambiguous word or phrase." (internal
citations omitted)).
Applying these principles of statutory interpretation, we
find that SORNA’s registration requirements did not apply to
pre-SORNA offenders until the Attorney General issued the
interim rule specifying the applicability of SORNA’s registra-
tion requirements to those offenders. Examining the plain lan-
guage of § 16913(d), the subsection contains two clauses. The
first clause states that the Attorney General "shall have the
authority to specify the applicability of the requirements of
this subchapter to sex offenders convicted before July 27,
2006 or its implementation in a particular jurisdiction." 42
U.S.C.A. § 16913(d) (West 2008). This clause, fairly read,
delegates to the Attorney General the authority to specify the
requirements of SORNA3 for all sex offenders who were con-
victed before the enactment of SORNA.4 Madera, 528 F.3d at
858. Congress’ use of the phrase "shall have the authority"
indicates that Congress is giving the Attorney General exclu-
sive authority to determine the applicability of SORNA to
pre-SORNA offenders, and that, until such a determination is
3
The term "this subchapter" refers to Subchapter I, "Sex Offender Reg-
istration and Notification," which contains all of SORNA’s registration
requirements.
4
The dissent contends that if § 16913(d) is read in the context of
SORNA’s other provisions, "subsection (d) merely authorizes the Attor-
ney General to exempt persons with sex offenses that predate July 27,
2006, from SORNA’s reach." (Dis. Op. 20). Furthermore, in reaching this
interpretation of § 16913(d), the dissent concludes that the subsection is
unambiguous.
Curiously, the dissent’s finding that § 16913(d) is "unambiguous"
requires it to substitute the term "applicability" that actually appears in
§ 16913(d) with the term "exemption," which does not appear. Thus, while
the dissent claims merely to adhere to the plain language of the subsection,
its interpretation in fact revises one of its pivotal terms.
10 UNITED STATES v. HATCHER
made, SORNA’s requirements would apply only prospec-
tively and not to pre-SORNA offenders such as the Appel-
lants. See id. at 857; Hinckley, 2008 U.S. App. LEXIS 24989,
at *67 (McConnell, J., dissenting). The Appellants’ indict-
ments were based on conduct occurring prior to the Attorney
General’s issuance of the interim rule, at a time when
SORNA’s registration requirements did not yet apply to them.
Therefore, they cannot be prosecuted for conduct that was not
criminal at the time it was committed. See Landgraf v. USI
Film Prods., 511 U.S. 244, 265 (1994) ("[T]he legal effect of
conduct should ordinarily be assessed under the law that
existed when the conduct took place . . . ." (internal quotation
omitted)).
In the second clause of § 16913(d), Congress delegates to
the Attorney General the authority to prescribe the registration
rules "of any such sex offenders and for other categories of
sex offenders who are unable to comply with subsection (b)
of this section." The second clause of the subsection thus
gives the Attorney General the authority to promulgate regis-
tration rules for two distinct groups of sex offenders: (1) sex
offenders who were convicted before July 27, 2006, and (2)
offenders who are unable to comply with subsection (b), the
subsection containing SORNA’s initial registration require-
ments. Madera, 528 F.3d at 858; Hinckley, 2008 U.S. App.
LEXIS 24989, at *67-68 (McConnell, J., dissenting). Reading
the first clause in conjunction with the second clause, it fol-
lows that the Attorney General has the authority both to
"specify the applicability" of SORNA with regard to pre-
SORNA offenders and to prescribe registration rules for all
pre-SORNA offenders and for other sex offenders who are
unable to comply with the initial registration requirements.
The Government contends, however, that § 16913(d) is
ambiguous, which would warrant looking beyond the plain
language of the subsection to its title, "Initial registration of
sex offenders unable to comply with subsection (b) of this
section." According to the Government, this title serves to
UNITED STATES v. HATCHER 11
narrow the scope of the Attorney General’s authority to spec-
ify the applicability of SORNA’s registration requirements, so
that it extends only to those pre-SORNA offenders who are
unable to comply with the initial registration requirements.
Since the Appellants were able to initially register under the
sex offender registration systems of their respective states,
they do not fall within this narrow category of offenders, and
thus SORNA’s registration requirements applied to them from
the time of SORNA’s enactment.
Indeed, those circuits that have held that SORNA’s regis-
tration requirements applied to pre-SORNA offenders at the
time of SORNA’s enactment have done so based on a finding
that the language of § 16913 is ambiguous. See May, 535 F.3d
at 918; Hinckley, 2008 U.S. App. LEXIS 24989, at *14-15.
Specifically, those circuits have adopted the reasoning of
United States v. Beasley, No. 1:07-CR-115-TCB, 2007 U.S.
Dist. LEXIS 85793 (N.D. Ga. Oct. 10, 2007), which found an
ambiguity in the second clause of subsection (d). May, 535
F.3d at 918-19; Hinckley, 2008 U.S. App. LEXIS 24989, at
*13-15. According to Beasley,
An additional possible meaning of subsection (d) is
that past offenders ("offenders convicted before the
enactment of this Act") are included within (and not
a separate group from) the broader category of "sex
offenders who are unable to comply with subsection
(b)," and it is only as to those "sex offenders who are
unable to comply with subsection (b)" that the Attor-
ney General was given authority under subsection
(d) to issue clarifying regulations.
2007 U.S. Dist. LEXIS 85793, at *17-18; accord May, 535
F.3d at 918; Hinckley, 2008 U.S. App. LEXIS 24989, at *13-
14.
However, this alternative interpretation of § 16913(d) is
foreclosed by the plain language of the subsection. The sec-
12 UNITED STATES v. HATCHER
ond clause of the subsection specifies that the Attorney Gen-
eral may prescribe registration rules for "such sex offenders,"
i.e. pre-SORNA offenders, and for "other categories of sex
offenders" who are unable to comply with the initial registra-
tion requirements. 42 U.S.C.A. § 16913(d) (West 2008); see
also Hinckley, 2008 U.S. App. LEXIS 24989, at *73 (McCon-
nell, J., dissenting). It is thus clear that the category of pre-
SORNA offenders is a distinct category from "categories of
sex offenders who are unable to comply with subsection (b),"
and the category of pre-SORNA offenders is not included
within this latter group. To interpret § 16913(d) as including
the set of pre-SORNA offenders within the set of "categories
of sex offenders who are unable to comply within subsection
(b)" ignores the term "other," which indicates that the two sets
are distinct. "It would be like interpreting a statute that applies
to ‘humans and to other categories of primate who walk on
two legs’ as excluding paraplegic humans." Hinckley, 2008
U.S. App. LEXIS 24989, at *73 (McConnell, J., dissenting).
Moreover, such an interpretation of § 16913(d) overlooks
the first clause of the subsection, which states that the Attor-
ney General has the authority to determine SORNA’s applica-
bility to pre-SORNA offenders, and that clause has no
language limiting its scope to cover only those pre-SORNA
offenders who are also unable to comply with the initial regis-
tration requirements of subsection (b). If this Court were to
find that such a narrow reading of the subsection were plausi-
ble, we would effectively have to read limiting language into
the first clause. Had Congress intended to delegate to the
Attorney General only the authority to determine SORNA’s
applicability for past offenders who were also unable to com-
ply with subsection (b), it would have been quite easy for
Congress to do so by including limiting language in the first
clause of the subsection. However, Congress did not do so,
and this Court should not "‘replace . . . [that clear language]
with an unenacted legislative intent.’" Morison, 844 F.2d at
1064 (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 453
(1987) (Scalia, J., concurring)).
UNITED STATES v. HATCHER 13
Nor can we say that applying the plain language of the sub-
section runs counter to clearly expressed congressional intent
or produces an absurd outcome. See Hillman, 250 F.3d at 233.
Although Congress’ intent in passing SORNA was to create
a comprehensive national system for the registration of sex
offenders, 42 U.S.C.A. § 16901 (West 2008), our interpreta-
tion of the subsection does not eviscerate such a comprehen-
sive registration system and in fact arguably helps to achieve
such a system. The subsection delegated to the Attorney Gen-
eral the authority to determine whether SORNA’s require-
ments apply to pre-SORNA offenders, and on February 28,
2007, the Attorney General issued an interim rule exercising
that authority. Now that the Attorney General has issued the
interim rule, there can be no doubt that SORNA’s registration
requirements now apply to pre-SORNA offenders. Given the
patchwork of state approaches towards sex offender registra-
tion that existed prior to the enactment of SORNA, it was not
"absurd" for Congress to delegate this authority to the Attor-
ney General, with the intent that he exercise it to effectuate a
comprehensive registration system.
It is important to note that the decision reached today is
quite narrow, for we do not hold that SORNA’s registration
requirements do not apply to persons who were convicted of
sex offenses prior to SORNA’s enactment date. Rather, we
hold only that SORNA’s registration requirements did not
apply to pre-SORNA offenders until the Attorney General
issued the interim rule on February 28, 2007.
IV.
Because the Appellants’ indictments were based on con-
duct that pre-dated the Attorney General’s interim rule speci-
fying that SORNA’s registration requirements applied to pre-
SORNA offenders, we reverse the Appellants’ convictions
and vacate the sentences imposed in connection with those
convictions.
14 UNITED STATES v. HATCHER
REVERSED AND VACATED
SHEDD, Circuit Judge, dissenting:
The majority holds that the Sex Offender Registration and
Notification Act ("SORNA")1 did not apply to the defendant-
appellants (the "Defendants") until the Attorney General
issued interim rules seven months after SORNA’s effective
date. In my view, the majority reaches this conclusion by
reading one of SORNA’s subsections — 42 U.S.C.
§ 16913(d) — out of context. When read in light of § 16913
as a whole and SORNA’s other provisions — as controlling
case law requires — I conclude that § 16913 is unambiguous
and required the Defendants to comply with SORNA on its
effective date. Consequently, I would affirm the judgments of
the district courts.
I.
As the majority notes, all of the Defendants were convicted
of sex offenses under state law between 1993 and 2001, and
they completed any prison sentences associated with their
convictions before July 27, 2006. As a result of their convic-
tions, the Defendants were required to register as sex offend-
ers under various state statutes, and at least initially they all
complied with those state registration requirements.
On July 27, 2006, SORNA became law. SORNA’s stated
purpose is "to protect the public from sex offenders and
offenders against children" by "establish[ing] a comprehen-
sive national system for the registration of those offenders."
42 U.S.C. § 16901. Among other things, SORNA requires
every state to maintain a sex offender registry conforming to
SORNA’s requirements, id. § 16912(a); requires certain per-
sons to register as sex offenders in each state where they
1
Congress passed SORNA as title one of the Adam Walsh Child Protec-
tion and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587 (2006).
UNITED STATES v. HATCHER 15
reside, where they are employed, and where they are a stu-
dent, id. § 16913(a); and requires those persons to keep their
registrations current, id. § 16913(c). SORNA also authorizes
the Attorney General to specify "the applicability of" SORNA
to persons convicted of sex offenses before July 27, 2006. Id.
§ 16913(d). Moreover, SORNA makes it unlawful for a per-
son who is required to register under SORNA and travels in
interstate commerce to knowingly fail to register or update a
registration as required by SORNA. 18 U.S.C. § 2250.
On February 28, 2007, seven months after SORNA’s enact-
ment, the Department of Justice (the "DOJ") published
interim rules specifying the applicability of SORNA to per-
sons convicted of sex offenses before July 27, 2006. See 28
C.F.R. §§ 72.1 to 72.3 (the "Interim Rules"); see also Appli-
cability of the Sex Offender Registration and Notification
Act, 72 Fed. Reg. 8,894 (Feb. 28, 2007). The Interim Rules
make it clear that these sex offenders were covered by
SORNA on its effective date. The Interim Rules state that
"[t]he requirements of [SORNA] . . . apply to all sex offend-
ers, including sex offenders convicted of the offense for
which registration is required prior to the enactment of that
Act." 28 C.F.R. § 72.3. Moreover, the DOJ’s statement
accompanying its publication of the Interim Rules states:
"Considered facially, SORNA requires all sex offenders who
were convicted of sex offenses in its registration categories to
register in relevant jurisdictions, with no exception for sex
offenders whose convictions predate the enactment of
SORNA." 72 Fed. Reg. at 8,896 (emphasis added).
After the DOJ published the Interim Rules, the Defendants
were indicted for violating one of SORNA’s provisions, see
18 U.S.C. § 2250, by being persons required to register under
SORNA, traveling in interstate commerce, and failing to reg-
ister or update their registrations as required by SORNA. All
of the conduct charged in the indictments occurred prior to
February 28, 2007, the effective date of the Interim Rules.
After unsuccessfully moving to dismiss their indictments, all
16 UNITED STATES v. HATCHER
of the Defendants were convicted for violating 18 U.S.C.
§ 2250.
Though the Defendants raise a number of challenges on
appeal, the gravamen of their argument is that we should
vacate their convictions and dismiss their indictments because
all of their relevant conduct occurred before SORNA applied
to them. At least two other circuit courts recently rejected
similar arguments. See United States v. Hinckley, 550 F.3d
926 (10th Cir. 2008) (holding that SORNA applied to the
defendant on SORNA’s effective date); see also United States
v. May, 535 F.3d 912 (8th Cir. 2008) (same), but see United
States v. Madera, 528 F.3d 852 (11th Cir. 2008) (holding that
SORNA did not apply to the defendant until the Attorney
General issued the Interim Rules).2
II.
A.
We review questions of statutory interpretation de novo.
Blaustein & Reich, Inc. v. Buckles, 365 F.3d 281, 286 (4th
Cir. 2004). As with any question of statutory interpretation,
the "first step . . . is to determine whether the language at
issue has a plain and unambiguous meaning with regard to the
particular dispute in the case." Robinson v. Shell Oil Co., 519
U.S. 337, 340 (1997). The Supreme Court has stated that
"[t]he plainness or ambiguity of statutory language is deter-
mined by reference to the language itself, the specific context
in which that language is used, and the broader context of the
statute as a whole." Id. at 341. A statute is ambiguous if its
language, when read in context, is susceptible to more than
one reasonable interpretation. Newport News Shipbuilding &
Dry Dock Co. v. Brown, 376 F.3d 245, 248 (4th Cir. 2004).
2
Both Hinckley and May reach the same result as I do, but those cases
employ a slightly different analysis. They conclude that § 16913(d) is
ambiguous, but I conclude that it is unambiguous.
UNITED STATES v. HATCHER 17
If the statutory language is unambiguous, however, the
inquiry "is at an end, for [i]f the language is plain and the stat-
utory scheme is coherent and consistent, we need not inquire
further. Our sole function is to enforce [the statute] according
to its terms." William v. Gonzales, 499 F.3d 329, 333 (4th Cir.
2007) (alterations in original) (citations omitted).
B.
With these principles in mind, I turn first to the language
of § 16913 — a provision that defines SORNA’s applicability
— and in particular subsection (d), the subsection on which
the majority focuses. Subsection (d) states in its entirety:
The Attorney General shall have the authority to
specify the applicability of the requirements of this
subchapter to sex offenders convicted before July 27,
2006 or its implementation in a particular jurisdic-
tion, and to prescribe rules for the registration of any
such sex offenders and for other categories of sex
offenders who are unable to comply with subsection
(b) of this section.
42 U.S.C. § 16913(d).
Reading this language, the majority concludes that subsec-
tion (d) contains two clauses. The first clause, the majority
states, authorizes the Attorney General to specify the applica-
bility of SORNA’s requirements to all sex offenders who
were convicted before SORNA’s enactment. The second
clause authorizes the Attorney General to prescribe initial reg-
istration requirements for certain sex offenders. Ante at 9-10.
Accepting the majority’s view that subsection (d) contains
two clauses and that its first clause resolves the question pre-
sented in these appeals, I disagree with the majority’s inter-
pretation of that clause.
The majority concludes that SORNA did not apply to the
Defendants until the Attorney General issued the Interim
18 UNITED STATES v. HATCHER
Rules. In the majority’s view, Congress delegated the "Attor-
ney General exclusive authority to determine the applicability
of SORNA to pre-SORNA offenders" because subsection (d)
states that the Attorney General "shall have the authority" to
specify the applicability of SORNA. Ante at 9. Since Con-
gress delegated the Attorney General authority to specify
SORNA’s applicability, the majority concludes that SORNA
could not apply to any sex offender whose conviction pre-
dated SORNA until the Attorney General said otherwise.
In my view, the majority misreads subsection (d) in part
because it does not give appropriate consideration to all of
§ 16913’s subsections and SORNA’s other provisions. As the
Supreme Court has stated, "[i]t is a fundamental canon of stat-
utory construction that the words of a statute must be read in
their context and with a view to their place in the overall stat-
utory scheme." Davis v. Michigan Dep’t of Treasury, 489
U.S. 803, 809 (1989). Indeed, "a reviewing court should not
confine itself to examining a particular statutory provision in
isolation. The meaning — or ambiguity — of certain words
or phrases may only become evident when placed in context."
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120,
132 (2000). In light of § 16913 as a whole and SORNA’s
other provisions, it becomes clear that subsection (d) does not
exempt the Defendants from SORNA’s reach pending a deter-
mination by the Attorney General.
Section 16913(a) states in relevant part that "[a] sex
offender shall register, and keep the registration current, in
each jurisdiction where the offender resides, where the
offender is an employee, and where the offender is a student."
42 U.S.C. § 16913(a). SORNA defines a "sex offender" as "an
individual who was convicted of a sex offense," id. § 16911,
and there is no dispute that the Defendants are "sex offenders"
within the meaning of § 16913(a) because they were all con-
victed of sex offenses under state law between 1993 and
2001. Therefore, under the plain terms of § 16913(a), SORNA
UNITED STATES v. HATCHER 19
requires the Defendants to register and keep their registrations
current.
Moreover, § 16913(a)’s command is absolute. It contains
no exceptions for persons who were convicted of sex offenses
before SORNA’s enactment. See, e.g., United States v.
Zuniga, No. 4:07CR3156, 2008 WL 2184118, at *10 (D. Neb.
May 23, 2008) (stating that § 16913(a) unambiguously
requires every sex offender to register and that its plain lan-
guage does not make a temporal distinction as to the date of
a sex offender’s conviction; instead, the statute imposes its
requirements on sex offenders without qualification); accord
Hinckley, 550 F.3d at 933 (stating that Zuniga’s interpretation
"is the only sensible result in light of the Act’s purpose, his-
tory, and surrounding language"). Similarly, § 16913(b) states
that all sex offenders "shall initially register," and it contains
no exception for sex offenders whose convictions predate
SORNA. The same is also true of § 16913(c). It directs sex
offenders to keep their registrations current, and makes no
distinction between sex offenders who were convicted of sex
offenses before or after SORNA’s enactment. See Hinckley,
550 F.3d at 944 (Gorsuch, J., concurring) ("[Section]
16913(c) . . . directs all sex offenders to keep their registration
current . . . .").
Moreover, SORNA "establishes a comprehensive national
system for the registration" of sex offenders, 42 U.S.C.
§ 16901 (emphasis added), and numerous other statutory pro-
visions confirm SORNA’s "comprehensive" nature. For
example, SORNA requires every state to maintain a state-
wide sex offender registry conforming to SORNA’s national
requirements. Id. § 16912. In other sections, SORNA requires
the Attorney General to maintain a "national database" "for
each sex offender," id. § 16919(a) (emphasis added), and a
"National Sex Offender Public Website," which "shall include
relevant information for each sex offender," id. § 16920
(emphasis added).
20 UNITED STATES v. HATCHER
In addition, SORNA defines the term "sex offender" as an
individual who "was convicted of a sex offense." Id. § 16911
(emphasis added). By using the verb "was," SORNA
expressly sweeps persons who were convicted of sex offenses
prior to SORNA’s enactment within the statute’s scope and
thus indicates that the statute is not purely prospective in
nature, applying only to persons whose sex offenses postdate
SORNA’s enactment.
Therefore, subsection (d)’s context makes it clear that the
provision should be read in light of at least three primary
guideposts: first, SORNA establishes a "comprehensive" sys-
tem for the registration of sex offenders; second, subsections
(a)-(c) require sex offenders to register, without exception;
and third, SORNA defines sex offenders as persons who were
convicted of sex offenses prior to SORNA’s enactment. Read-
ing subsection (d) against this backdrop, I conclude that sub-
section (d) is unambiguous and does not operate to negate
SORNA’s coverage of all sex offenders — coverage which is
established in subsections (a)-(c).3 Understood in context,
subsection (d) merely authorizes the Attorney General to
exempt persons with sex offenses that predate July 27, 2006,
from SORNA’s reach.4 In other words, the Attorney General
could declare that SORNA is inapplicable to certain persons.
3
Because I conclude that subsection (d) is unambiguous, the rule of len-
ity does not apply. United States v. Helem, 186 F.3d 449, 455 (4th Cir.
1999) ("The rule of lenity, which requires the court to strictly construe
criminal statutes, does not apply in this case because the statute is not
ambiguous.").
4
To the extent one considers the DOJ’s statement accompanying its
publication of the Interim Rules, the statement supports my interpretation
of subsection (d) and shows that the Interim Rules were intended to fore-
close the exact arguments pressed by the Defendants in these appeals. See
72 Fed. Reg. at 8,896 ("[S]ex offenders with predicate convictions predat-
ing SORNA who do not wish to be subject to the SORNA registration
requirements, or who wish to avoid being held to account for having vio-
lated those requirements, have not been barred from attempting to devise
arguments that SORNA is inapplicable to them, e.g., because a rule con-
firming SORNA’s applicability has not been issued. This rule forecloses
such claims by making it indisputably clear that SORNA applies to all sex
offenders (as the Act defines that term) regardless of when they were con-
victed." (emphasis added)).
UNITED STATES v. HATCHER 21
Further, there is simply nothing in the word "applicability"
itself which suggests any determination by the Attorney Gen-
eral must be prospective only. The language certainly allows
the Attorney General to determine that no pre-SORNA sex
offenders are exempt and that SORNA continues to apply to
them. Indeed, that is what the Attorney General did by adopt-
ing the Interim Rules. Therefore, unless the Attorney General
were to exercise his authority to exempt a sex offender from
SORNA’s reach, SORNA applies to all sex offenders, includ-
ing the Defendants, regardless of the date of their convictions.
Consistent with Supreme Court precedent, my interpreta-
tion of SORNA is "not guided by a single sentence or member
of a sentence, but [by] look[ing] to the provisions of the
whole law." Dole v. United Steelworkers of Am., 494 U.S. 26,
35 (1990) (quotation marks omitted). Indeed, to read subsec-
tion (d) as relieving every pre-SORNA sex offender of any
obligation to comply with SORNA, as the majority does, "re-
quires us to believe that Congress sought simultaneously to
achieve two manifestly irreconcilable ends: (1) to create a
‘comprehensive national system’ for the registration of sex
offenders, 42 U.S.C. § 16901, and (2) to exempt all existing
sex offenders from that comprehensive system." Hinckley,
550 F.3d at 945 (Gorsuch, J., concurring). But as the DOJ has
stated, "[i]f SORNA were deemed inapplicable to sex offend-
ers convicted prior to its enactment, then the resulting system
for registration of sex offenders would be far from ‘compre-
hensive,’ and would not be effective in protecting the public
from sex offenders." 72 Fed. Reg. at 8,896.
III.
In addition to raising the statutory interpretation argument
discussed above, the Defendants also challenge their convic-
tions on a number of constitutional grounds. Because the
majority accepted the Defendants’ statutory argument, it had
no occasion to reach their constitutional claims. Reviewing
their constitutional claims de novo, see United States v.
22 UNITED STATES v. HATCHER
Buculei, 262 F.3d 322, 327 (4th Cir. 2001) ("We review de
novo a challenge to the constitutionality of a federal statute."),
I find that the Defendants are not entitled to any relief.
The Defendants argue that their convictions violate the ex
post facto and due process clauses of the United States Con-
stitution. In essence, the Defendants contend that their convic-
tions violate these clauses because all of their charged
conduct occurred before February 28, 2007, and in their view
they had no obligation to comply with SORNA before that
date. As discussed in Part II of my dissent, however, I con-
clude that the Defendants were required to comply with
SORNA on July 27, 2006, and the Defendants were charged
with traveling in interstate commerce and failing to register or
update their registrations as required by SORNA after July 27,
2006. Therefore, their ex post facto and due process claims
are without merit. See Hinckley, 550 F.3d at 935-39 (uphold-
ing SORNA against ex post facto and due process clause chal-
lenges); May, 535 F.3d at 919-21 (same).
The Defendants next contend that SORNA violates the
commerce clause of the United States Constitution because it
fails to establish a constitutionally sufficient relationship to
the regulation of interstate commerce. I disagree. Under
Supreme Court precedent, Congress may regulate three broad
categories of activities pursuant to its commerce clause
power: (1) "the use of the channels of interstate commerce";
(2) "the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may
come only from intrastate activities"; and (3) "those activities
having a substantial relation to interstate commerce." United
States v. Lopez, 514 U.S. 549, 558-59 (1995). In these cases,
the Defendants were prosecuted for violating 18 U.S.C.
§ 2250 — a statute that contains an express jurisdictional
requirement limiting its application to persons who move in
interstate commerce in violation of SORNA. At a minimum,
this type of conduct falls within the second category identified
in Lopez and thus may be regulated pursuant to Congress’s
UNITED STATES v. HATCHER 23
commerce clause power. See Hinckley, 550 F.3d at 939-40
(rejecting a commerce clause challenge to SORNA); May,
535 F.3d at 921-22 (same).
The Defendants also contend that subsection (d) violates
the nondelegation doctrine because it authorizes the Attorney
General to determine whether SORNA shall apply retroac-
tively to sex offenders convicted before SORNA’s enactment.
For the reasons set forth in Part II of my dissent, I disagree
with the Defendants that SORNA delegated the Attorney
General authority to determine SORNA’s retroactive applica-
tion. As I stated above, SORNA’s plain and unambiguous
terms state that it applies to all persons convicted of sex
offenses, including persons whose convictions predate
SORNA’s enactment. Thus, the Defendants’ nondelegation
argument lacks merit.
IV.
In summary, I would affirm the judgments of the district
courts because the Defendants can be held liable under
SORNA for their actions during the time period between
SORNA’s enactment and the DOJ’s publication of the Interim
Rules.