Rehearing granted, March 4, 2010
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-8513
MICHAEL EDWARD KENNEDY, #35377-098,
Petitioner - Appellant,
v.
MICHAEL P. ALLERA, United States Probation Service; WILLIAM
S. HENRY, United States Probation Service; EDWARD F. REILLY,
Chairman, United States Parole Commission; JOHN JOSEPH
CURRAN, JR., Office of the Attorney General; KATHRYN
SEIFERT, Director, Eastern Shore Psychological Services,
Respondents - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, Chief District
Judge. (1:05-cv-00129-BEL)
Submitted: October 5, 2009 Decided: October 22, 2009
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney, Greenbelt, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Larry D. Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Edward Kennedy appeals the district court’s
denial of his 28 U.S.C. § 2241 (2006) petition and his motion
for a temporary restraining order. On appeal, Kennedy asserts
that the district court erred in finding that he was required to
register as a sex offender under the Sex Offender Registration
and Notification Act (“SORNA”), 42 U.S.C. § 16913(b) (2006);
that he was unable to “initially register” under SORNA; that
SORNA violates the Commerce Clause; the Attorney General
violated the Administrative Procedure Act (“APA”), 5 U.S.C.
§ 533(d) (2006), in retroactively applying SORNA without notice
and a comment period; and that the United States Parole
Commission violated the Tenth Amendment in forcing Kennedy to
register in violation of Maryland law. We affirm.
I. Kennedy’s registration under Maryland law
Under SORNA, “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). Kennedy
first argues that, because Maryland law does not provide a means
for him to register as a sex offender because his offense
occurred out of state prior to 1997, he cannot comply with
SORNA. Allera responds that, regardless of Maryland law, SORNA
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requires him to register. We review questions of statutory
interpretation de novo. United States v. Abuagla, 336 F.3d 277,
278 (4th Cir. 2003).
Kennedy’s arguments are premised on the notion that
Kennedy was not required to register as a sex offender under
Maryland law. However, a review of Maryland law indicates that,
regardless of the requirements of Maryland’s registry at the
time Kennedy was released from prison, Kennedy is currently
required to register as a sex offender under Maryland law. The
Code of Maryland requires the registration of “sexually violent
offenders.” Md. Code Ann., Crim. P. § 11-704(a)(3) (LexisNexis
2008). A sexually violent offender is defined, for purposes of
the Maryland Code, as one who has been convicted of a sexually
violent offense. Md. Code Ann., Crim. P. § 11-701(j)(1)
(LexisNexis 2008). Among other definitions, the Code defines a
sexually violent offense as a crime committed in another state
that, if had been committed in Maryland, would constitute a
crime specifically enumerated in the sex offender registration
statute as one requiring registration. Md. Code Ann., Crim. P.
§ 11-701(k)(3).
Kennedy was convicted of felony-murder and rape. See
United States v. Kennedy, 714 F.2d 968, 971 (9th Cir. 1983).
One of the specifically enumerated offenses requiring
registration is first degree rape, which the Maryland Code
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defines as engaging in nonconsensual vaginal intercourse with
another by force, and suffocating, strangling, or inflicting
serious physical injury while doing so. Md. Code Ann., Crim. L.
§ 3-303 (LexisNexis 2002); Md. Code Ann., Crim. P. § 11-701(k).
Though Kennedy was convicted of the federal equivalent of first
degree rape prior to the enactment of laws requiring the
registration of sexually violent offenders in Maryland, the
Maryland statute has been made retroactive “to include a
registrant convicted of an offense committed before July 1,
1997, and who is under the custody or supervision of a
supervising authority on October 1, 2001.” Md. Code Ann., Crim.
P. § 11-702.1(a) (LexisNexis 2008). Kennedy was convicted of
rape prior to July 1, 1997, and was under parole supervision on
October 1, 2001. Accordingly, because Kennedy is required to
register as a sex offender under Maryland law, his first
argument is without merit.
Similarly, Kennedy’s argument that he was unable to
“initially register” under SORNA is without merit, as he was
required to do so under Maryland law. Under 42 U.S.C.
§ 16913(b),
The sex offender shall initially register --
(1) before completing a sentence of imprisonment with
respect to the offense giving rise to the registration
requirement; or
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(2) not later than 3 business days after being
sentenced for that offense, if the sex offender is not
sentenced to a term of imprisonment.
Part (d) of § 16913 gave the Attorney General the authority to
specify the applicability of the initial registration
requirement to sex offenders convicted before SORNA’s
implication. The Attorney General later issued a regulation
retroactively applying SORNA’s registration requirements to
individuals, like Kennedy, who were unable to initially
register, as they were convicted before SORNA’s enactment. See
28 C.F.R. § 72.3. Though Kennedy asserts that this retroactive
application still does not afford him a method by which to
“initially register,” this argument is without merit, as he is
presently required to register by Maryland law. As we found
recently in United States v. Gould, 568 F.3d 459, 466-67 (4th
Cir. 2009), “a sex offender is able to register under SORNA if
he is able to register by means of an existing state
registration facility, even if he was released before SORNA was
enacted.” Therefore, this argument is without merit.
II. Commerce Clause
Kennedy next asserts that, if this court finds that
“SORNA creates an independent federal mandate on individuals to
register that is not dependent on state implementation of the
Act,” then SORNA unconstitutionally violates the Commerce
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Clause, as it “regulates purely intrastate activity that does
not substantially affect interstate commerce.” However, we need
not reach the issue of SORNA’s Commerce Clause implications
because Maryland law requires Kennedy to register.
III. Administrative Procedure Act
Kennedy next asserts that, if this court determines
that SORNA requires Kennedy to register, the Attorney General
violated the APA, by failing to provide notice and a comment
period. Pursuant to 5 U.S.C. § 553(b), (d), proposed rules are
required to be published in the Federal Register for at least
thirty days prior to their effective dates, in order to give the
public time to comment. Agencies can dispense with this notice
“when the agency for good cause finds . . . that notice and
public procedure thereon are impracticable, unnecessary, or
contrary to the public interest.” 5 U.S.C. § 553(b). When
promulgating the retroactive application of SORNA, the Attorney
General invoked this provision. 72 Fed. Reg. 8896. Again, as
Kennedy has qualified his argument by stating that it only
applies if this court determines SORNA requires him to register
as a sex offender independently of Maryland, we do not reach
this issue, as Kennedy was required to register under Maryland
law.
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IV. Tenth Amendment
Finally, Kennedy asserts that the United States Parole
Commission lacked authority under the Tenth Amendment to force
Kennedy to register in Maryland when such registration violated
Maryland law. However, because Maryland law required Kennedy to
register as a sex offender, this argument is wholly without
merit.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument as the facts and legal
contentions are adequately expressed in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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