United States v. Gagnon

United States Court of Appeals
For the First Circuit

No. 09-1047

UNITED STATES OF AMERICA,

Appellee,

v.

BRUCE GAGNON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Boudin, Selya and Gajarsa,*

Circuit Judges.

J. Hilary Billings, with whom Eric A. Vos, Federal Public
Defender, was on brief, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief, for appellee.

September 28, 2010

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. Defendant-appellant Bruce Gagnon

challenges his conviction under the Sex Offender Registration and

Notification Act (SORNA), Pub. L. No. 109-248, tit. I, §§ 101-155,

120 Stat. 587, 590-611 (2006). This is a "gap" case — the offense

charged was committed in the interim between Congress's passage of

SORNA and the Attorney General's issuance of an implementing rule.

The recent decision of this court in United States v. DiTomasso,

___ F.3d ___ (1st Cir. 2010) [No. 08-2567], disposes of the

principal claims raised in this proceeding.1

We presume the reader's familiarity with our DiTomasso

opinion, and we refrain from repastinating that well-ploughed

ground. Insofar as Gagnon's claims resemble DiTomasso's, we reject

them for the reasons elucidated in our earlier opinion.

Although incorporating DiTomasso by reference shortens

our journey, two issues not addressed in DiTomasso remain. The

facts needed to put them into perspective are straightforward.

In December of 2000, Gagnon was convicted of a sex

offense in New Hampshire (his state of residence). He was required

by New Hampshire law to register as a sex offender, and he did so.

He kept his registration current until July of 2005, when he failed

to update it. As a result, he was charged with violating a state

1
Due to the similarity of issues, Gagnon's appeal and
DiTomasso's appeal were argued before us on the same date.

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registration law. See N.H. Rev. Stat. Ann. §§ 651-B:4 to 651-B:6.

He was convicted later that year.

In December of 2006, Gagnon traveled from New Hampshire

to Maine. On February 2, 2007, he signed a lease for an apartment

in Maine. Despite this change of residence, he neither notified

the New Hampshire authorities of his move nor registered as a sex

offender in Maine, where such registration was required. See Me.

Rev. Stat. tit. 34-A, § 11202(2).

On February 21, 2007, United States Marshals arrested

Gagnon. Shortly thereafter, a federal grand jury indicted him for

violating a SORNA provision, 18 U.S.C. § 2250(a). The indictment

alleged that Gagnon had transgressed the federal law by failing to

register as a sex offender in Maine "on about February 2, 2007."

These dates are important. Although SORNA was enacted on

July 27, 2006, Gagnon argued below that, for various reasons, the

federal statute could not constitutionally be applied in this case

because both his interstate travel and his failure to register in

Maine occurred prior to February 28, 2007 — the date on which the

Attorney General promulgated an interim rule touching upon the

applicability of SORNA's registration requirements to previously

convicted sex offenders. See DiTomasso, ___ F.3d at ___ [slip op.

at 6-7] (discussing promulgation of interim rule and attendant

circumstances); see also 42 U.S.C. § 16913(d) (authorizing Attorney

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General to undertake rulemaking in connection with SORNA's

registration requirements).

The district court rejected Gagnon's arguments. United

States v. Gagnon, 574 F. Supp. 2d 172, 176-79 (D. Me. 2008).

Following conviction and sentencing, Gagnon filed this appeal.

Gagnon repeats the same arguments on appeal. Our opinion

in DiTomasso is dispositive of the issue of the effective date of

SORNA's registration requirements vis-à-vis most previously

convicted sex offenders (including Gagnon). See DiTomasso, ___

F.3d at ___ [slip op. at 18]. That opinion spells out the reasons

why Gagnon's view of the significance of the Attorney General's

interim rule is misguided. See id. at ___ [slip op. at 13-18].

The date of SORNA's applicability to such offenders is no longer

open to debate, and that date — July 27, 2006 — precedes the events

at issue here.

The same opinion also recognizes that Congress acted

within the scope of its authority under the Commerce Clause, U.S.

Const. art. I, § 8, cl. 3, when it enacted SORNA's registration

requirements. See DiTomasso, ___ F.3d at ___ [slip op. at 19-21].

That holding defenestrates Gagnon's Commerce Clause claim.

Gagnon makes two arguments that were not addressed in

DiTomasso. First, he posits that the rule of lenity requires a

construction of the statute that would invalidate his conviction.

We examine this contention.

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 The rule of lenity requires a court to resolve "true

statutory uncertainty" in favor of the defendant in a criminal

case. United States v. Ahlers, 305 F.3d 54, 62 (1st Cir. 2002).

For present purposes, however, this rule is inapposite. When a

criminal statute has a "clear and plausible meaning," the rule of

lenity does not apply. Id. Put another way, "[i]t is only when no

reasonably clear meaning can be gleaned from the text of a statute,

leaving courts to guess at what Congress intended, that the rule of

lenity comes into play." Id.

That is not the case here. As we explained in DiTomasso,

___ F3d. at ___ [slip op. at 18], we do not find the relevant

statutory provision — 42 U.S.C. § 16913(d) — ambiguous. Rather,

when read in the full context of the statutory scheme, that

subsection, as of the date of SORNA's enactment, clearly and

unambiguously imposed an obligation on previously convicted sex

offenders to register within three business days of moving to a new

state. Given this easily discernible meaning, Gagnon's attempt to

invoke the rule of lenity must fail.

Gagnon's remaining argument is no more persuasive. He

insists that his due process rights were infringed because he did

not have fair warning of his duty to register under SORNA. This

premise is the functional equivalent of a plea that he was

justifiably ignorant of the effect of the new federal law until the

Attorney General promulgated the interim rule. Such a plea runs

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headlong into the venerable axiom that "ignorance of the law is no

excuse." United States v. Robinson, 137 F.3d 652, 654 (1st Cir.

1998).

Of course, that axiom states a general rule, and there is

an exception where the challenged conduct was "wholly passive" and

there were not attendant circumstances alerting the defendant to

the consequences of the conduct. Lambert v. California, 355 U.S.

225, 228 (1957). Gagnon seeks to wedge his case within the

contours of this exception. He does not succeed.

This exception is narrow. See United States v. Meade,

175 F.3d 215, 225-26 (1st Cir. 1999). This case does not fit

within it because, long before SORNA was enacted, Gagnon knew (or,

at least, was chargeable with knowledge) of his obligation to

register under state law and to keep his registration current.

That this notice did not specifically inform him that

failure to register under state law would also constitute a

violation of federal law does not render the notice impotent for

purposes of the case at hand. What counts is that Gagnon was on

clear notice, at the relevant time, that a failure to register

would place him on the wrong side of the law. We therefore join

several other courts that have held that notice of a defendant's

obligation to register as a sex offender under state law provides

him with effective notice of his corresponding obligation to

register under SORNA. See, e.g., United States v. Hinckley, 550

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F.3d 926, 938-39 (10th Cir. 2008), cert. denied, 129 S. Ct. 2383

(2009); United States v. May, 535 F.3d 912, 921 (8th Cir. 2008),

cert. denied, 129 S. Ct. 2431 (2009). Because Gagnon had such

notice, the requirements of the Due Process Clause are satisfied.

We need go no further. For the reasons elucidated in our

opinion in DiTomasso and augmented here, we affirm the judgment of

conviction.

Affirmed.

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