UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Criminal No. 10-0276 (PLF)
)
ANTHONY T. ROSS, )
)
Defendant. )
____________________________________)
OPINION
This matter is before the Court on the defendant’s motion to dismiss the
indictment against him. The Court heard oral argument on this motion on February 18, 2011,
and took it under advisement. Upon consideration of the parties’ papers, the oral arguments
presented by counsel, the relevant legal authorities, and the entire record in this case, the Court
will deny the defendant’s motion to dismiss.1
I. BACKGROUND
On November 23, 1999, following a non-jury trial in the Superior Court of the
District of Columbia, defendant Anthony T. Ross was convicted of one count of misdemeanor
sexual abuse. Mr. Ross, at the time of his offense a thirty-year-old teacher at Archbishop High
School in Washington, D.C., was found to have engaged in sexual relations with a
fifteen-year-old student. Opp. at 1; see Mot. at 1. Mr. Ross was sentenced to a term of 180 days
1
The papers reviewed in connection with the pending motion include: the
indictment (“Indictment”); the defendant’s motion to dismiss the indictment and memorandum of
points and authorities in support thereof (“Mot.”); the government’s opposition to defendant’s
motion to dismiss the indictment (“Opp.”); the defendant’s reply to the government’s opposition
(“Reply”); and the defendant’s supplement to his motion to dismiss the indictment (“Supp. to
Mot.”).
in jail, the execution of which was suspended except for 120 days of work release, followed by
eighteen months of probation. Opp. at 1; Mot. at 1. Furthermore, under District of Columbia
law, Mr. Ross was required to register as a sex offender for a period of ten years following his
release. Mot. at 1 (citing D.C. Code § 22-4001); see Opp. at 1.
On the date of his conviction, Mr. Ross was provided with a “Certification of Sex
Offender And Notice Order” that stated: “YOU ARE HEREBY GIVEN NOTICE THAT
pursuant to the Sex Offender Registration Emergency Act of 1999 . . . you are certified by this
Court as a SEX OFFENDER.” Opp. at 1-2 (emphasis in original). On December 13, 2000, Mr.
Ross signed a notice of his duty to register as a sex offender for ten years, expressly
acknowledging the following:
I understand that I have a duty to report 1) any changes of home,
work or school addresses; 2) any change in motor vehicle
information, or 3) any significant changes in physical appearance
to the Agency within 3 days. Changes in registration information
must be provided to CSOSA Sex Offender Registration Office . . . .
I am also obligated to provide verification of registration
information to the Agency, upon request, which will be at internals
no greater than quarterly if my classification is A or annually if my
classification is B or C.
Id. at 2 (emphasis in original). Mr. Ross’ sex offender classification was within the “B”
category, thereby requiring annual verification of registration. Id.
On January 18, 2002, February 26, 2003, and September 29, 2006, Mr. Ross
signed “Sex Offender Verification Forms.” Opp. at 2. He apparently did not sign such forms in
calendar years 2004 and 2005. These forms stated the following:
The D.C. Sex Offender Registration Act mandates that every
person convicted of a sexually violent offense, shall register with
the Court Services and Offender Supervision Agency and verify
2
relevant information every three months. Every other sex offender
must register and provide verification on an annual basis.
Id. Directly above Mr. Ross’ signature on each of these forms was the following attestation:
“I certify the information provided on this form is complete and accurate and I am aware of my
responsibility to provide notice to the Court Services and Offender Supervision Agency within
3 days of changing my address or other registration information.” Id.
Sometime between January 2009 and September 2010, Mr. Ross moved from the
District of Columbia to Ohio. See Opp. at 2; Indictment at 1. The government alleges that Mr.
Ross neither notified the District of Columbia of his move, nor registered as a sex offender in
Ohio. Opp. at 2. The government further alleges that Mr. Ross used a false date of birth and a
false social security number while in Ohio, in order to hide the fact that he was a convicted sex
offender. Id. at 2-3.
On October 7, 2010, a grand jury in the District of Columbia returned a one count
indictment against Mr. Ross, charging him with the failure to register under the Sex Offender
Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq., in violation of
18 U.S.C. § 2250(a). Indictment at 1. The Indictment charges activity in violation of SORNA
“[b]etween on or about January 2009 and on or about September 2010, within the District of
Columbia and elsewhere . . . .” Id. Mr. Ross was arrested two days after the return of his
indictment, on October 9, 2010, in Ohio. Opp. at 3.
Mr. Ross now moves to dismiss the Indictment on eight separate grounds. First,
Mr. Ross asserts that the Attorney General’s interim regulation, 28 C.F.R. § 72.3, which states
that SORNA applies retroactively to offenders such as Mr. Ross whose qualifying offense was
3
committed prior to SORNA’s enactment, was issued in violation of the Administrative Procedure
Act (“APA”). Mot. at 3. Second, Mr. Ross asserts that he was “unable” to register under
SORNA because he was unable to register under existing District of Columbia law. Id. Third,
Mr. Ross asserts that SORNA is not applicable to him because the District of Columbia has yet
to implement SORNA. Id. Fourth, Mr. Ross asserts that SORNA is not applicable to him
because he was “unable” to “initially register” under SORNA. Id. at 4. Fifth, Mr. Ross asserts
that Congress improperly delegated the legislative function of determining the retroactivity of
SORNA to the Attorney General, in violation of the non-delegation doctrine. Id. Sixth, Mr.
Ross asserts that retroactive application of SORNA violates the Ex Post Facto Clause. Id.
Seventh, Mr. Ross asserts that application of SORNA to him violates the Due Process Clause.
Id. And eighth, Mr. Ross asserts that SORNA is an unlawful exercise of federal power under the
Commerce Clause. Id.
II. SORNA OVERVIEW
A. The Statute, the Interim Regulation, the Preliminary and Final SMART Guidelines,
and the Final Rule
“Since 1994, federal law has required States, as a condition for the receipt of
certain law enforcement funds, to maintain federally compliant systems for sex-offender
registration and community notification.” Carr v. United States, 130 S. Ct. 2229, 2232 (2010).
“In an effort to make these state schemes more comprehensive, uniform, and effective, Congress
in 2006 enacted [SORNA] as part of the Adam Walsh Child Protection and Safety Act,
PUB. L. NO . 109-248, TIT . I, 120 STAT . 590.” Id.; see 42 U.S.C. § 16901 (Congress enacted
4
SORNA to “establish[] a comprehensive national system for the registration of [sex] offenders
. . . .”).
Section 16913 of Title 42 provides, 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). As part
of “[k]eeping the registration current,” a sex offender “shall, not later than 3 business days after
each change of name, residence, employment, or student status, appear in person in at least 1
jurisdiction involved pursuant to subsection (a) . . . and inform that jurisdiction of all changes in
the information required for that offender in the sex offender registry.” Id. § 16913(c). In
addition, Section 16913 provides the requirements for sex offenders registering for the first time.
See id. § 16913(b). And Section 16913 further provides that
[t]he Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex offenders
convicted before [the enactment of SORNA on July 27, 2006] or
its implementation 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 [the initial registration provision].
Id. § 16913(d).
It is a federal criminal offense to violate SORNA’s registration requirements.
Carr v. United States, 130 S. Ct. at 2232; see 18 U.S.C. § 2250(a). Any person who (1) “is
required to register under [SORNA],” (2) “travels in interstate or foreign commerce,” and
(3) “knowingly fails to register or update a registration as required by [SORNA],” shall be fined
or imprisoned “not more than 10 years, or both.” 18 U.S.C. § 2250(a); see United States v.
Cotton, Criminal No. 10-0126, 2011 WL 180196, at *1 (D.D.C. Jan. 20, 2011).
5
SORNA was enacted, effective immediately, on July 27, 2006. United States v.
Cotton, 2011 WL 180196, at *1. On February 28, 2007, the Attorney General issued an
immediately effective interim regulation for the purpose of “specif[ying] the applicability of the
requirements of [SORNA] to sex offenders convicted prior to the enactment of that Act.”
28 C.F.R. § 72.1. This interim regulation expressly states that SORNA applies “to all sex
offenders, 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. In other words, under this regulation,
SORNA applies retroactively to sex offenders with pre-SORNA convictions like Mr. Ross.
See id. In promulgating this regulation, the Attorney General “did not provide notice of
proposed rulemaking, 5 U.S.C. § 553(b), or allow a 30-day [comment] period before the rule
became effective, 5 U.S.C. § 553(d), as required by the [APA].” United States v. Cotton,
2011 WL 180196, at *2. “Instead, he invoked the ‘good cause’ exception of the APA for these
requirements.” Id. (citing 5 U.S.C. § 553(b)(3)(B) & (d)(3); 72 Fed. Reg. 8894, 8896-97 (2007)).
Three months later, on May 30, 2007, the Attorney General published proposed
comprehensive guidelines for SORNA, referred to as the “SMART” guidelines after the Office of
Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. See
72 Fed. Reg. 30,210 (May 30, 2007). These preliminary SMART guidelines also state that
SORNA applies retroactively:
The applicability of the SORNA requirements is not limited to sex
offenders whose predicate sex offense convictions occur following
a jurisdiction’s implementation of a conforming registration
program. Rather, SORNA’s requirements apply to all sex
offenders, including those whose convictions predate the
enactment of the Act.
6
Id. at 30,212. Comments on these preliminary SMART guidelines were accepted through
August 1, 2007. Id. at 30,210.
On July 2, 2008, after considering comments submitted during the notice and
comment period, the Attorney General issued the final SMART guidelines. See 73 Fed. Reg.
38,030 (July 2, 2008). He specified that these final guidelines carried out the statutory directive
“to issue guidelines to interpret and implement SORNA,” and further stated that these final
guidelines would “provide guidance and assistance to covered jurisdictions — the 50 States, the
District of Columbia, the principal U.S. territories, and Indian tribal governments — in
implementing the SORNA standards in their registration and notification programs.” Id.
at 38,044. Like the Attorney General’s interim regulation and the preliminary guidelines, these
final guidelines expressly state that SORNA applies retroactively:
The applicability of the SORNA requirements is not limited to sex
offenders whose predicate sex offense convictions occur following
a jurisdiction’s implementation of a conforming registration
program. Rather, SORNA’s requirements took effect when
SORNA was enacted on July 27, 2006, and they have applied since
that time to all sex offenders, including those whose convictions
predate SORNA’s enactment.
Id. at 38,046; see id. at 38,063 (“SORNA applies to all sex offenders, including those convicted
of their registration offenses prior to the enactment of SORNA or prior to particular jurisdictions’
incorporation of the SORNA requirements into their programs.”). These final guidelines stated
that their effective date was July 8, 2008. Id. at 38,030. Under 5 U.S.C. § 553(d), however,
these guidelines became effective not on July 8, 2008, but rather on August 1, 2008 — thirty
days after their publication. See United States v. Utesch, 596 F.3d 302, 307, 311 & n.8
(6th Cir. 2010); United States v. Cotton, 2011 WL 180196, at *13.
7
On December 29, 2010, the Attorney General issued a final rule, effective January
28, 2011, that “finaliz[ed] [the] interim [regulation] specifying that the requirements of
[SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which
registration is required before the enactment of that Act.” 75 Fed. Reg. 81,849, 81,850. The
Attorney General noted that the final SMART guidelines, like the interim regulation, “state that
SORNA applies to all sex offenders regardless of when they were convicted . . . .” Id.
Nevertheless, the December 29, 2010 “rulemaking . . . aim[ed] to eliminate any possible
uncertainty or dispute concerning the scope of SORNA’s application by finalizing the interim
[regulation].” Id.2
B. Circuit Splits Regarding SORNA’s Retroactive Application
As discussed, it is a federal criminal offense to violate SORNA’s registration
requirements: Any person who (1) “is required to register under [SORNA],” (2) “travels in
interstate or foreign commerce,” and (3) “knowingly fails to register or update a registration as
required by [SORNA],” shall be fined or imprisoned “not more than 10 years, or both.”
18 U.S.C. § 2250(a). In Carr v. United States, the Supreme Court held that the three elements of
this offense are to “be read sequentially,” meaning that “the statutory sequence begins when a
person becomes subject to SORNA’s registration requirements. The person must then travel in
2
In describing SORNA’s regulatory framework, the case law occasionally makes
reference to “regulations,” “rules,” and “guidelines,” interchangeably. See, e.g., United States v.
Johnson, 632 F.3d 912, 917 (5th Cir. 2011) (describing the final SMART guidelines as “final
SORNA regulations”); see also United States v. Utesch, 596 F.3d 302, 312 n.10 (6th Cir. 2010).
For purposes of clarity and consistency, the Court uses the terms “interim regulation,”
“preliminary SMART guidelines,” “final SMART guidelines,” and “final rule,” as specifically
described in this Opinion.
8
interstate commerce and thereafter fail to register.” Carr v. United States, 130 S. Ct. at 2235. “In
other words, Carr clarified that ‘[o]nce a person becomes subject to SORNA’s registration
requirements, which can occur only after the statute’s effective date, that person can be convicted
under § 2250 if he thereafter travels and then fails to register.’” United States v. Cotton,
2011 WL 180196, at *2 (quoting Carr v. United States, 130 S. Ct. at 2236) (alteration in
original). “Precisely when a sex offender . . . with a pre-SORNA conviction” — like Mr. Ross
— “‘becomes subject to SORNA’s registration requirements,’” however, is a matter that has
been disputed in federal courts throughout the country. Id. (quoting Carr v. United States,
130 S. Ct. at 2234 n.2).
As the Supreme Court has observed:
There is a . . . conflict among the Courts of Appeals as to when
SORNA’s registration requirements became applicable to persons
convicted of sex offenses prior to the statute’s enactment. Several
Circuits, including the Seventh, have taken the position that the
Act did not apply to such sex offenders until the Attorney General
provided for their inclusion by issuing [the] interim regulation . . .
on February 28, 2007. . . . Other Circuits have held that persons
with pre-SORNA sex-offense convictions became subject to the
Act’s registration requirements upon the statute’s enactment in July
2006.
Carr v. United States, 130 S. Ct. at 2234 n.2 (internal citations omitted); see United States v.
Johnson, 632 F.3d 912, 922 (5th Cir. 2011) (“Five circuits have held that the Act did not apply to
offenders with pre-enactment convictions until the Attorney General issued the [interim]
regulation. . . . Yet four other circuits have held that the language of the statute itself applied the
provisions to persons with pre-SORNA sex-offense convictions.”) (internal citations omitted).
9
In this case, the government does not advance the argument that SORNA applied
retroactively upon its enactment on July 27, 2006; accordingly, the Court will not address that
question. Instead, the parties focus their briefing on the validity of the Attorney General’s
interim regulation issued on February 28, 2007, 28 C.F.R. § 72.3, see Mot. at 9-19; Opp. at 7-19,
which expressly provides that SORNA’s requirements “apply to all sex offenders, including sex
offenders convicted of the offense for which registration is required prior to the enactment of
[SORNA].” 28 C.F.R. § 72.3. Mr. Ross argues that the Attorney General’s interim regulation
“violates the [APA] . . . because it was promulgated without a required 30-day notice and
comment period.” Mot. at 3. The government disagrees and argues that the interim regulation
“is valid because the Attorney General properly found good cause for dispensing with the notice,
comment, and publication requirements of the APA.” Opp. at 7.
The question whether the Attorney General’s interim regulation “was properly
promulgated . . . has also divided the Circuits.” Carr v. United States, 130 S. Ct. at 2234 n.2; see
Cotton v. United States, 2011 WL 180196, at *3. The Fourth and Eleventh Circuits have found
that the Attorney General properly invoked the good cause exception and that the Attorney
General’s interim regulation therefore was valid under the APA. See United States v. Gould,
568 F.3d 459, 469-70 (4th Cir. 2009); United States v. Dean, 604 F.3d 1275, 1281-82 (11th Cir.
2010).3 The Sixth and Ninth Circuits, by contrast, have found that the Attorney General failed to
establish good cause for waiving the notice and comment period and that the interim regulation
therefore violated the APA. United States v. Cain, 583 F.3d 408, 422-23 (6th Cir. 2009); United
3
The Seventh Circuit also has upheld the Attorney General’s interim regulation —
though it did so without analysis, dismissing the defendant’s APA argument as “frivolous.” See
United States v. Dixon, 551 F.3d 578, 583 (7th Cir. 2008).
10
States v. Utesch, 596 F.3d at 308-10; United States v. Valverde, 628 F.3d 1159, 1168 (9th Cir.
2010). And the Fifth Circuit similarly has concluded that the Attorney General “did not have
good cause for failing to publish the rule thirty days before its effective date nor did good cause
exist to bypass the notice-and-comment requirements.” United States v. Johnson, 632 F.3d
at 930. But unlike the Sixth and Ninth Circuits, the Fifth Circuit found “that the Attorney
General’s APA violations were harmless error.” Id. at 933.
Neither the Supreme Court nor the Court of Appeals for the District of Columbia
Circuit has ruled on this issue.4 In this circuit, however, Judge Bates, in United States v. Cotton,
agreed “with the reasoning of the Sixth and Ninth Circuits, under which the interim rule is
invalid . . . .” United States v. Cotton, 2011 WL 180196, at *14. Judge Bates rejected the view
that the APA violations were harmless error. Id. at 13.
III. DISCUSSION
A. Validity and Applicability of the Final SMART Guidelines
Since the government does not advance the argument that SORNA applied
retroactively upon its enactment, the first question before the Court “is whether there exists any
valid regulation [or guidelines] promulgated by the Attorney General pursuant to § 16913(d) that
subjected [Mr. Ross] to SORNA during the period covered by his indictment,” United States v.
Utesch, 596 F.3d at 308 — that is, “[b]etween on or about January 2009 and on or about
4
The Supreme Court recently granted a writ of certiorari in Reynolds v. United
States, 131 S. Ct. 1043 (2011), on the question whether the petitioner “ha[s] standing under . . .
[SORNA] to raise claims concerning the Attorney General’s interim rule and [whether] review
. . . is needed to resolve the circuit conflict[.]” Petition for Writ of Certiorari at i, Reynolds v.
United States, No. 10-6459.
11
September 2010.” Indictment at 1. There are three possible candidates: “(1) the February 28,
2007 interim regulation, (2) the preliminary SMART guidelines issued on May 30, 2007, and
(3) the final SMART guidelines issued on July 2, 2008.” United States v. Utesch, 596 F.3d
at 308; see United States v. Valverde, 628 F.3d at 1164; United States v. Cotton, 2011 WL
180196, at *13.5 The Court concludes that it “need not reach the precise issue on which the
Circuits [are in] conflict, namely whether the Attorney General had good cause to issue” the
February 28, 2007 interim regulation. United States v. Alvarado-Aceves, Criminal No. 09-2720,
2010 WL 730361, at *3 (S.D. Tex. Mar. 2, 2010). Nor need it decide the validity or applicability
of the preliminary SMART guidelines. A determination on these issues “is neither necessary nor
germane” to Mr. Ross, id., because the period of his indictment falls well after the issuance of the
procedurally valid final SMART guidelines, expressly providing that SORNA applies “to all sex
offenders, including those whose convictions predate SORNA’s enactment.” 73 Fed. Reg.
38,030, 38,046; see id. at 38,063; see also United States v. Utesch, 596 F.3d at 310-11; United
States v. Valverde, 628 F.3d at 1169.
The final SMART guidelines “complied with the APA’s procedural requirements
. . . .” United States v. Valverde, 628 F.3d at 1164; see United States v. Utesch, 596 F.3d at 310
(“[T]he comprehensive SMART guidelines . . . were promulgated according to notice and
comment procedures.”); United States v. Cotton, 2011 WL 180196, at *13. As the Sixth Circuit
stated:
5
The December 29, 2010 final rule is not a possible candidate because it was
effective on January 28, 2011, well after the time charged in Mr. Ross’ Indictment.
12
The preliminary [SMART] guidelines, which included a provision
making SORNA retroactive . . . , were published on May 30, 2007
and stated that comments would be accepted until August 1,
2007. . . . The Attorney General then issued the final SMART
guidelines on July 2, 2008, responding to the comments received
and maintaining that SORNA would be applied retroactively. . . .
[T]his process is precisely what the APA requires.
United States v. Utesch, 596 F.3d at 310 (internal citations omitted). The final SMART
guidelines were effective thirty days after their publication, that is, on August 1, 2008. United
States v. Cotton, 2011 WL 180196, at *13 (citing United States v. Utesch, 596 F.3d at 307);
see United States v. Valverde, 628 F.3d at 1169.
During oral argument, counsel for Mr. Ross asserted that the final SMART
guidelines did not make SORNA applicable to pre-SORNA offenders like him, because these
guidelines are solely instructions to jurisdictions on how to implement SORNA — not rules or
regulations requiring registration by offenders whose convictions pre-date SORNA. Mr. Ross
restated this argument in the recent supplement to his motion: “[T]he SMART Guidelines cannot
be considered the effective date for retroactive application of SORNA because that was not the
stated purpose of the SMART Guidelines. Instead, the Guidelines were issued to provide the
States with guidance in implementing SORNA.” Supp. to Mot. at 2 (citing 73 Fed. Reg. 38,030,
38,044).
The Court disagrees. Although the final SMART guidelines do “provide guidance
and assistance to covered jurisdictions . . . in implementing SORNA standards in their
registration and notification programs,” 73 Fed. Reg. 38,030, 38,044, they also expressly “repeat
that ‘SORNA applies to all sex offenders, including those convicted of their registration offenses
prior to the enactment of SORNA or prior to particular jurisdictions’ incorporation of the
13
SORNA requirements into their programs.’” Kennedy v. Allera, 612 F.3d 261, 267 (4th Cir.
2010) (quoting 73 Fed. Reg. 38,030, 38,063); see United States v. Utesch, 596 F.3d at 310.
These “comprehensive” guidelines, United States v. Utesch, 596 F.3d at 310, clearly have
(at least) two purposes: (1) to provide guidance and assistance to jurisdictions; and
(2) to impose requirements on sex offenders whose convictions predate SORNA by specifying
that SORNA applies retroactively. These procedurally valid final SMART guidelines complied
with the APA and “carry the force of law.” Id.; see United States v. Valverde, 628 F.3d at 1164.
And they were effective on August 1, 2008 — well before Mr. Ross allegedly violated SORNA
between January 2009 and September 2010. See Indictment at 1.
Counsel for Mr. Ross asserted, in the alternative, that even if the Court concluded
that these final SMART guidelines did make SORNA applicable to pre-SORNA offenders, by
their terms the guidelines impose a limitation: retroactivity is not triggered until the relevant
jurisdiction implements SORNA. See Supp. to Mot. at 2 (citing 73 Fed. Reg. 38,030,
38,063-64). Mr. Ross’ argument focuses on the following language in the final SMART
guidelines:
With respect to sex offenders with pre-SORNA or
pre-SORNA-implementation convictions who remain in the
prisoner, supervision, or registered sex offender populations at the
time of implementation . . . jurisdictions should endeavor to
register them in conformity with SORNA as quickly as possible
. . . . Jurisdictions are . . . authorized to phase in SORNA
registration for such sex offenders in conformity with the
appearance schedule of SORNA § 116. In other words, sex
offenders in these existing sex offender populations who cannot be
registered within the normal SORNA time frame (i.e., before
release from imprisonment or within three business days of
sentencing for the registration offense) must be registered by the
jurisdiction when it implements the SORNA requirements . . . .
14
73 Fed. Reg. 38,030, 30,063-64 (emphasis added). Although Mr. Ross acknowledges that the
final SMART guidelines “do state that SORNA applies to offenders whose convictions predate
SORNA,” Supp. to Mot. at 2, Mr. Ross interprets the language quoted above to mean that the
final SMART guidelines make SORNA retroactive to offenders with pre-SORNA convictions
only after the relevant jurisdiction implements the SORNA requirements into its system. See id.
at 2-3. Because the District of Columbia has not yet implemented the requirements of SORNA,
Mr. Ross continues, SORNA does not apply retroactively to him.
Again, the Court disagrees. The plain text of the final SMART guidelines refutes
Mr. Ross’ argument: “SORNA applies to all sex offenders, including those convicted of their
registration offenses prior to the enactment of SORNA or prior to particular jurisdictions’
incorporation of the SORNA requirements into their programs.” 73 Fed. Reg. 38,030, 38,063
(emphasis added); see also id. at 38,046; United States v. Utesch, 596 F.3d at 310-11; United
States v. Valverde, 628 F.3d at 1169; United States v. Cotton, 2011 WL 180196, at *13.
SORNA and the SMART guidelines deal both with a jurisdiction’s duty to implement the statute
and, separately, with a sex offender’s duty to register. The offender’s duty to register is not
contingent on the jurisdiction’s implementation. Mr. Ross “overlooks the fact that the section of
the [final SMART guidelines] on which he relies addresses the duty of jurisdictions to identify
and register sex offenders who cannot be registered under the ordinary initial registration
procedure. That section does nothing to negate [Mr. Ross’] independent duty as a sex offender to
register under SORNA.” Kennedy v. Allera, 612 F.3d at 267. The Court therefore rejects Mr.
Ross’ challenge to the retroactive application of SORNA, because — well before the period
charged in Mr. Ross’ Indictment — the procedurally valid final SMART guidelines expressly
15
provided that “SORNA would be applied retroactively” to him. United States v. Utesch, 596
F.3d at 310; see also United States v. Cotton, 2011 WL 180196, at *13.6
B. Duty to Register Under District of Columbia Law
In his motion, Mr. Ross initially argued that, even if SORNA applies retroactively,
he “was ‘unable’ to register under SORNA because [he] had no duty to register under existing
District of Columbia law, during the time period charged in the indictment.” Mot. at 19. The
government disagrees, asserting that “[u]nder D.C. law, [Mr. Ross] did have a duty to register.
22 D.C. Code § 4001 et seq. clearly articulates this duty.” Opp. at 19. In his reply, Mr. Ross
acknowledges that this is not a question before the Court at this stage; rather, it is a jury question.
See Reply at 4. The Court therefore will not address it.
C. Implementation of SORNA by the District of Columbia
Mr. Ross argues that he has no duty to register under SORNA because the District
of Columbia has yet to implement the Act. See Mot. at 20. The government does not dispute
that the District of Columbia “has yet to fully implement SORNA.” Opp. at 20. It argues,
however, that Mr. Ross “nevertheless has a duty under federal law to maintain his sex offender
6
In the supplement to his motion to dismiss, Mr. Ross raises a new argument: he
asserts that the recent December 29, 2010 final rule “would have been completely unnecessary if
the SMART guidelines constituted a rule applying SORNA retroactively.” Supp. to Mot. at 4.
The Court disagrees. In issuing the December 29, 2010 rule, the Attorney General noted that in
United States v. Utesch the Sixth Circuit had held that the final SMART guidelines “are,
independently of the interim rule, a valid final rule providing that SORNA applies to all sex
offenders, including those whose convictions predate SORNA.” 75 Fed. Reg. 81,849, 81,850.
The Attorney General specified that the December 29, 2010 final rule “reflects no disagreement
with [the Sixth Circuit’s conclusion] but rather aims to eliminate any possible uncertainty or
dispute concerning the scope of SORNA’s application by finalizing the interim rule.” Id.
16
registration with the jurisdictions in which he resides” and asserts that it is sufficient that the
District of Columbia “did have a procedure in place” — albeit, not the SORNA procedure —
“for sex offenders like [Mr. Ross] to register.” Id.
Mr. Ross’ argument once again “‘depends on a construction of SORNA that links
the requirement imposed on the States to implement the registration standards mandated by
SORNA in a manner that would have the requirement imposed on individuals be dependent on
the State’s implementation.’” United States v. Cotton, 2011 WL 180196, at *14 (quoting United
States v. Gould, 568 F.3d at 463). The Court agrees with Judge Bates that “SORNA’s language
does not provide that linkage.” Id. As he explained:
A sex offender’s duty to register under SORNA is not
contingent on a jurisdiction’s implementation of SORNA. See
United States v. Gould, 568 F.3d at 465 (“[T]he requirement
imposed on individuals to register is independent of the
requirement imposed on the States to implement the enhanced
registration and notification standards of SORNA.”); United States
v. Hinckley, 550 F.3d 926, 939 (10th Cir. 2008) (rejecting
defendant’s argument that it was impossible for him to register
under SORNA because the state had not passed legislation
implementing SORNA); United States v. Dixon, 551 F.3d at 582
(same).
The structure of SORNA’s requirements indicates that the
sex offenders’ individual duty to register and the State’s duty to
enhance its registries and standards as mandated by the Act are
separate. See United States v. Gould, 568 F.3d at 464. As the
Attorney General’s SMART Guidelines explain, “[s]ome of the
provisions in SORNA are formulated as directions to sex
offenders, including those appearing in sections 113(a)-(b). . . .
Other SORNA provisions are cast as directions to jurisdictions
. . . .” 73 Fed. Reg. at 38048 (emphasis added). Furthermore, the
SMART Guidelines “emphasize, with greater particularity, that
‘SORNA applies to all sex offenders, including those convicted of
their registration offenses prior to the enactment of SORNA or
prior to particular jurisdictions’ incorporation of the SORNA
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requirements into their programs.’” United States v. Gould,
568 F.3d at 465 (quoting 73 Fed. Reg. at 38063). “Accordingly,
SORNA’s requirement that a sex offender register applies whether
registration would be accomplished through preSORNA
registration facilities or under SORNA-complaint programs.” Id.
at 465-66. [The defendant’s] duty to register under SORNA
existed, then, whether or not D.C. had implemented SORNA’s
enhanced registration and notification standards.
United States v. Cotton, 2011 WL 180196, at *15 (emphasis in original); see United States v.
Hester, 589 F.3d 86, 93 (2d Cir. 2009) (“That SORNA also requires jurisdictions to update and
improve their registration programs, and that New York and Florida had not yet met those
administrative requirements, does not excuse [the defendant’s] failure to meet the registration
requirements that SORNA imposes on individual sex offenders and to register with the programs
that did exist.”); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (“[A] sex
offender is not exempt from SORNA’s registration requirements merely because the jurisdiction
in which he is required to register has not yet implemented SORNA.”); see also United States v.
Heth, 596 F.3d 255, 258 (5th Cir. 2010) (“SORNA imposes a separate and distinct requirement
on the states to implement SORNA-compliant sex offender registries within a specified time
after the Act’s enactment . . . .”).
Upon his Superior Court conviction in 1999, Mr. Ross was given notice that,
“pursuant to the Sex Offender Registration Emergency Act of 1999 . . . [he was] certified . . . as a
SEX OFFENDER.” Opp. at 2 (emphasis in original). He then acknowledged on four separate
occasions his duty to register as a sex offender and to report any change in address within three
days to the District of Columbia Court Services and Offender Supervision Agency. See id.
Furthermore, Mr. Ross does not dispute that the District of Columbia maintained a sex offender
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registry during the relevant time period. See Opp. at 19; Reply at 3-4; D.C. Code § 22-4001
et seq.; see also Carr v. United States, 130 S. Ct. at 2239 n.7 (By the time of SORNA’s
enactment, “‘every State[, the District of Columbia, and the Federal Government] had enacted
some’ type of registration system.”) (quoting Smith v. Doe, 538 U.S. 84, 90 (2003)); United
States v. Whaley, 577 F.3d 254, 259 (5th Cir. 2009). Mr. Ross therefore could have registered as
a sex offender through the District of Columbia sex offender registry. See United States v.
Cotton, 2011 WL 180196, at *15.
D. Initial Registration Under SORNA
Mr. Ross next argues that he was unable to initially register under SORNA
because his conviction pre-dates SORNA’s registration and notification requirements. See Mot.
at 23. Section 16913(b) of Title 42 provides:
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 (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.
42 U.S.C. § 16913(b). Mr. Ross contends that because he “was released from prison prior to
SORNA’s enactment in July 2006 . . . . , he is not covered by the ‘initial registration’ provision
of § 16913(b).” Mot. at 23.
The Court disagrees. Mr. Ross’ argument
fails because, as a threshold matter, he does not fall within the
category of sex offenders “unable” to “initially register” described
in section 16913(b). That section applies to sex offenders who do
not currently have any registration requirement: sex offenders
currently in prison or yet to be sentenced. See 42 U.S.C.
§ 16913(b). In contrast, [Mr. Ross] is a sex offender with a current
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registration obligation who must “register, and keep [his]
registration current” under state and federal law, covered by the
registration requirements described under sections 16913(a) and
(c). See United States v. May, 535 F.3d 912, 919 (8th Cir. 2008).
“A sex offender is able to register under SORNA if he is able to
register by means of an existing state registration facility.” United
States v. Gould, 568 F.3d at 466; see 73 Fed. Reg. at 38063
(“Jurisdictions are specifically required to register such sex
offenders if they remain in the [state or other jurisdiction’s] system
as prisoners, supervisees, or registrants.”). Hence, [Mr. Ross] is
“able” — indeed, he has a duty — to register and keep his
registration current under D.C. law, and he is therefore “able” to
register under SORNA.
United States v. Cotton, 2011 WL 180196, at *16 (emphasis in original).
E. Constitutional Arguments
1. Non-Delegation Doctrine
Mr. Ross argues that SORNA is unconstitutional because, “[b]y delegating to the
Attorney General the broad authority to specify SORNA’s applicability to offenders convicted
before the passage of the Act, before SORNA’s implementation, and before they are initially able
to register, Congress violated the non-delegation doctrine.” Mot. at 25. Although Congress
“may delegate authority to the executive to promulgate rules and create law,” United States v.
Cotton, 2011 WL 180196, at *16, the Supreme Court has established that it may do so “only
when Congress provides an ‘intelligible principle’ to guide the delegated party.” Id. (quoting
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928)). A non-delegation
challenge to a law will fail “if Congress clearly delineates the general policy, the public agency
which is to apply it, and the boundaries of this delegated authority.” American Power & Light
Co. v. SEC, 329 U.S. 90, 105 (1946). As this Court has observed, “[o]nly twice in [the Supreme
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Court’s] history, and not since 1935, has [it] invalidated a statute on the ground of excessive
delegation of legislative authority.” Milk Industry Found. v. Glickman, 949 F. Supp. 882, 889
(D.D.C. 1996) (internal quotations and citation omitted); see United States v. Ambert, 561 F.3d
1202, 1213 (11th Cir. 2009).
The Court is
satisfied that Congress has provided the Attorney General with
“intelligible principles” in [SORNA]. Congress has undeniably
provided the Attorney General with a policy framework in § 16901
to guide his exercise of discretion under § 16913(d); and it has
made a series of legislative judgments in §§ 16911, 16913, 16914,
and 2250 that constrict the Attorney General’s discretion to a
narrow and defined category.
United States v. Ambert, 561 F.3d at 1213. Thus, “Congress’s delegation to the Attorney
General to determine the retroactive applicability of SORNA is well within the limits of possible
delegation.” United States v. Cotton, 2011 WL 180196, at *17; see United States v. Whaley,
577 F.3d at 264 (“The delegation to the Attorney General to determine the retroactive
applicability of SORNA is well within the limits of permissible delegation.”); United States v.
Ambert, 561 F.2d at 1213-14.
2. Ex Post Facto Clause
Mr. Ross argues that retroactive application of SORNA violates the Ex Post Facto
Clause. Mot. at 27. This Clause “prohibits punishment of a defendant ‘for an act which was not
punishable at the time it was committed.’” United States v. Gould, 568 F.3d at 466 (quoting
Weaver v. Graham, 450 U.S. 24, 28 (1981)). Mr. Ross contends that SORNA does just that: “the
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retroactive application of SORNA increases [his] punishment for an offense allegedly committed
seven years prior to the enactment of SORNA . . . .” Mot. at 27.
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court rejected an ex post facto
challenge to Alaska’s sex offender registration law, holding that the law did not constitute an
unconstitutional retroactive punishment. See Smith v. Doe, 538 U.S. at 105-06. Smith set forth
the established framework for analyzing a challenge under the Ex Post Facto Clause:
We must ascertain whether the legislature meant the statute to
establish civil proceedings. . . . If the intention of the legislature
was to impose punishment, that ends the inquiry. If, however, the
intention was to enact a regulatory scheme that is civil and
nonpunitive, we must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate [the
State’s] intention to deem it civil. . . . Because we ordinarily defer
to the legislature’s stated intent, . . . only the clearest proof will
suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty . . . .
Smith v. Doe, 538 U.S. at 92 (internal quotations and citations omitted) (alteration in original).
Congress expressly stated that its purpose in enacting SORNA was “to protect the
public from sex offenders and offenders against children” by “establish[ing] a comprehensive
national system for the registration of those offenders . . . .” 42 U.S.C. § 16901. SORNA’s
stated intent therefore “is civil and non-punitive . . . .” United States v. Cotton,
2011 WL 180196, at *17; see United States v. Young, 585 F.3d 199, 205 (5th Cir. 2009)
(SORNA’s “express language indicates that Congress sought to create a civil remedy.”).
Accordingly, Mr. Ross “must present the ‘clearest proof’ that either the purpose or the effect of
the [statute] is in fact so punitive as to negate its civil intent.” United States v. Young, 585 F.3d
at 205.
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The Court agrees with the weight of authority that holds that Mr. Ross “cannot by
‘clearest proof’ override the stated intent of Congress” in enacting SORNA. United States v.
Cotton, 2011 WL 180196, at *19; see United States v. Young, 585 F.3d at 205-06; United States
v. Hinckley, 550 F.3d at 935-38; United States v. Lawrance, 548 F.3d 1329, 1332-34 (10th Cir.
2008); United States v. May, 535 F.3d at 919-20. Therefore, Mr. Ross’ ex post facto challenge
fails.
3. Due Process Clause
Mr. Ross argues that application of SORNA to him violates the Due Process
Clause. Mot. at 35. Relying on Lambert v. California, 355 U.S. 225 (1957), Mr. Ross contends
that where “‘wholly passive’” conduct, such as the “‘mere failure to register,’” is criminalized,
“‘actual knowledge of the duty to register or proof of the probability of such knowledge and
subsequent failure to comply are necessary before a conviction under the ordinance can stand.’”
Mot. at 35 (quoting Lambert v. California, 355 U.S. at 228-29). Mr. Ross asserts that he was not
informed about his duty to register under SORNA; thus, criminalizing his failure to register
without such notice violates the Due Process Clause. Id.
Sex offenders with current registration requirements — like Mr. Ross — “have
notice of state registration requirements; therefore, they are not passive participants unaware of
the illegality of failing to register.” United States v. Cotton, 2011 WL 180196, at *20. Mr. Ross
“had an affirmative duty to register under state law.” Id. Indeed, upon his release from jail, he
was given a notice explaining his duty to register, and he signed the notice acknowledging his
duty to register as a sex offender for ten years. See Opp. at 1-2. This Court agrees with the
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courts that “have consistently held that a defendant’s knowledge of his or her duty to register as a
sex offender pursuant to state law satisfies the knowledge requirement under SORNA.” United
States v. Cotton, 2011 WL 180196, at *20 (citing United States v. May, 535 F.3d at 921; United
States v. Hinckley, 550 F.3d at 938; United States v. Shenandoah, 572 F. Supp. 2d 566, 580
(M.D. Pa. 2008) (citing cases), aff’d, 595 F.3d 151, 159-60 (3d Cir. 2010)). Therefore, Mr.
Ross’ Due Process Clause challenge fails.
4. Commerce Clause
Finally, Mr. Ross argues that SORNA’s penalty provision, 18 U.S.C. § 2250(a), is
an unlawful exercise of federal power under the Commerce Clause. Mot. at 36. The Court
agrees with “every . . . circuit that has examined the issue in concluding that § 2250 is a
legitimate exercise of congressional Commerce Clause authority.” United States v. Guzman,
591 F.3d 83, 90 (2d Cir. 2010); see United States v. George, 625 F.3d 1124, 1130 (9th Cir.
2010); United States v. Whaley, 577 F.3d at 258-61; United States v. Gould, 568 F.3d at 470-75;
United States v. Ambert, 561 F.3d at 1210-12; United States v. Hinckley, 550 F.3d at 940;
United States v. May, 535 F.3d at 921-22; see also United States v. Cotton, 2011 WL 180196,
at *21.
IV. CONCLUSION
For the foregoing reasons, the defendant’s motion to dismiss the indictment
[Dkt. No. 8] will be DENIED. An Order consistent with this Opinion shall issue this same day.
SO ORDERED.
/s/
PAUL L. FRIEDMAN
DATE: April 19, 2011 United States District Judge
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