United States v. Newton

UNITED STATES, Appellee

v.

William E. NEWTON Jr., Specialist
U.S. Army, Appellant

No. 14-0415

Crim. App. No. 20110499

United States Court of Appeals for the Armed Forces

Argued November 19, 2014

Decided February 25, 2015

RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.

Counsel

For Appellant: William E. Cassara, Esq. (argued); Captain
Patrick J. Scudieri (on brief); Captain James S. Trieschmann Jr.

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John
P. Carrell and Lieutenant Colonel James L. Varley (on brief).

Military Judges: Jacqueline L. Emanuel and David H. Robertson

THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Newton Jr., No. 14-0415/AR

Judge RYAN delivered the opinion of the Court.

Contrary to his pleas, a general court-martial composed of

officer and enlisted members convicted Appellant of rape of a

child under the age of twelve, indecent acts, wrongfully sending

a lewd picture to a child under the age of eighteen, and

knowingly failing to register as a sex offender as required by

the Sex Offender Registration and Notification Act (SORNA), 18

U.S.C. § 2250(a) (2006), in violation of Articles 120 and 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934

(2006). The timeframe during which the SORNA violation was

alleged to have occurred was between October 1, 2009, and July

29, 2010.

The Court of Criminal Appeals (CCA) modified some

specifications not relevant to this appeal, and then affirmed

the remaining findings and sentence as modified.

We granted review of the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
(SORNA), 18 U.S.C. § 2250(a) (2006), APPLIED TO APPELLANT
AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM
RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v.
LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v.
REYNOLDS, 710 F.3d 498 (3d Cir. 2013).

The 2008 Sentencing, Monitoring, Apprehending, Registering,

and Tracking (SMART) Guidelines provide, as is relevant to the

instant case, that an individual convicted of any of the

statutorily defined sex offenses before the date that SORNA took

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effect is required to register as a sex offender under SORNA.

The National Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38,030, 38,046 (July 2, 2008)

[hereinafter 2008 SMART Guidelines]. This retroactive

application provision is a substantive rule that was promulgated

pursuant to the Attorney General’s statutory authority to make

SORNA’s registration requirement apply to pre-act offenders. 42

U.S.C. § 16913(d) (2012). Further, this rule was promulgated

according to proper notice and comment procedures as required by

§ 553 of the Administrative Procedure Act (APA), 5 U.S.C. § 553

(2012). Accordingly, Appellant had a duty to register as a sex

offender under SORNA, and we need not address the question

whether the Attorney General had good cause to forego the notice

and comment procedures when promulgating the 2007 Interim Rule.1

Applicability of the Sex Offender Registration and Notification

Act, 72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R.

1
There is a split among the federal circuits on the question
whether the Attorney General had “good cause” to forego the
required notice and comment procedures for the 2007 Interim Rule
under 5 U.S.C. § 553(b)(3)(B). Compare United States v. Brewer,
766 F.3d 884, 887-90 (8th Cir. 2014), United States v. Reynolds,
710 F.3d 498, 509 (3d Cir. 2013), United States v. Johnson, 632
F.3d 912, 928 (5th Cir. 2011), United States v. Valverde, 628
F.3d 1159, 1165-66 (9th Cir. 2010), and United States v. Cain,
583 F.3d 408, 422-24 (6th Cir. 2009), with United States v.
Dean, 604 F.3d 1275, 1281-82 (11th Cir. 2010), and United States
v. Gould, 568 F.3d 459, 469-70 (4th Cir. 2009). Because we hold
that the 2008 SMART Guidelines created an enforceable
substantive rule requiring Appellant to register under SORNA, we
merely note -- and need not join -- the circuit split on the
2007 Interim Rule. See Lott, 750 F.3d at 217.
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pt. 72) [hereinafter 2007 Interim Rule]; see United States v.

Lott, 750 F.3d 214, 217 (2d Cir. 2014); United States v.

Whitlow, 714 F.3d 41, 45 (1st Cir. 2013).

I. FACTUAL BACKGROUND

On October 2, 1995, Appellant pleaded guilty in Missouri

Circuit Court to a charge of statutory rape of a fourteen-year-

old girl. He received two years’ probation. On October 2,

1995, and November 6, 1995, Appellant signed forms issued by the

Missouri Department of Public Safety that confirmed his

obligation to register in Missouri as a sex offender and to

inform the chief law enforcement official of the county with

jurisdiction over his new residence or address if he moved.

Appellant began active duty in the Army on April 23, 1998. On

October 1, 2009, the Army sent to Appellant, then stationed at

Fort Jackson, South Carolina, permanent change of station orders

to report to Fort Bliss, Texas, on November 10, 2009. He did

not register as a sex offender upon his arrival in Texas in

early November 2009; Appellant registered nine months later, on

July 29, 2010, after he was contacted by the local police

regarding his failure to register.

II. THE ATTORNEY GENERAL’S IMPLEMENTATION OF SORNA

On July 27, 2006, SORNA became effective. Pub. L. No. 109-

248, 120 Stat. 587 (2006) (codified at 18 U.S.C. § 2250 and 42

U.S.C. §§ 16911-29). On February 28, 2007, the Attorney General

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published the 2007 Interim Rule. 2007 Interim Rule, 72 Fed.

Reg. at 8894. Citing 42 U.S.C. § 16913(d), the Attorney General

declared, “SORNA applies to all sex offenders (as the Act

defines that term) regardless of when they were convicted.”

2007 Interim Rule, 72 Fed. Reg. at 8896. The Attorney General

explained that the 2007 Interim Rule “serves the narrower,

immediately necessary purpose of foreclosing 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 invoked the “good cause” exception to

forego the notice and comment procedures required by

§ 553(b)(3)(B) of the APA and declared that the 2007 Interim

Rule was effective immediately. 2007 Interim Rule, 72 Fed. Reg.

at 8896. The Attorney General noted, however, that he would

“hereafter issue general guidelines to provide guidance and

assistance to the states and other covered jurisdictions in

implementing SORNA, as was done under the Wetterling Act, see 64

[Fed. Reg.] 572 (Jan. 5, 1999), and may also issue additional

regulations as warranted.” Id.

A few months later, on May 30, 2007, the Attorney General

published the notice of proposed rulemaking for what became the

2008 SMART Guidelines in the Federal Register; he took comments

on the proposed guidelines until August 1, 2007. The National

Guidelines for Sex Offender Registration and Notification, 72

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Fed. Reg. 30,210-34 (proposed May 30, 2007) [hereinafter

Proposed SMART Guidelines]. The notice of proposed rulemaking

cited 42 U.S.C. § 16913(d) as the basis of the Attorney

General’s power to make a rule specifying that SORNA’s

registration requirement applies retroactively. Id. at 30,212.

The Attorney General published the final 2008 SMART Guidelines

on July 2, 2008. 2008 SMART Guidelines, 73 Fed. Reg. 38,030.2

The 2008 SMART Guidelines cite the congressional directive in

SORNA, 42 U.S.C. § 16912(b), that the Attorney General issue

guidelines to “interpret and implement” SORNA as the authority

for his rulemaking. 2008 SMART Guidelines, 73 Fed. Reg. at

38,030. In responding to comments regarding the requirement

that pre-act offenders must register, the Attorney General

specifically described how the 2008 SMART Guidelines addressed

those concerns. Id. at 38,031. The Attorney General’s position

was that “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. (citing 2007 Interim Rule, 72 Fed. Reg.

at 8895-96).

2
The Attorney General published the Final Rule on December 29,
2010. Applicability of the Sex Offender Registration and
Notification Act, 75 Fed. Reg. 81,849 (Dec. 29, 2010) (codified
at 28 C.F.R. pt. 72) [hereinafter Final Rule]. The 2010 Final
Rule post-dates Appellant’s failure to register and therefore is
not applicable to this case.
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III. DISCUSSION

The Appellant challenges his conviction of knowingly

failing to register as a sex offender on the ground that, during

the charged timeframe, October 1, 2009, to July 29, 2010, no

validly promulgated rule made SORNA’s registration requirement

applicable to those whose sex offense convictions predate

SORNA’s effective date. Appellant contends that the retroactive

application provision of the 2008 SMART Guidelines is merely

interpretative, does not have the force of law, and thus does

not make SORNA applicable to pre-act offenders. We disagree.

A. SUBSTANTIVE AND INTERPRETATIVE RULES UNDER THE APA

This case, which requires traversing the field of

administrative law, is one of first impression for this Court,

but an area well covered by other federal appellate courts. The

APA distinguishes between two kinds of rules: substantive rules

and interpretative rules. 5 U.S.C. § 553(b)-(d). A rule is

substantive, and has the force of law, “only if Congress has

delegated legislative power to the agency and if the agency

intended to exercise that power in promulgating the rule.”

American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d

1106, 1109 (D.C. Cir. 1993) (finding the 1947 Attorney General’s

Manual on the Administrative Procedure Act persuasive for

defining a substantive rule). A substantive rule “modifies or

adds to a legal norm based on the agency’s own authority. That

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authority flows from a congressional delegation to promulgate

substantive rules, to engage in supplementary lawmaking.”

Snycor Int’l. Corp. v. Shalala, 127 F.3d 90, 95 (D.C. Cir.

1997).

An interpretative rule, by contrast, “reflects an agency’s

construction of a statute that has been entrusted to the agency

to administer. The legal norm is one that Congress has devised;

the agency does not purport to modify that norm.” Id. at 94.

An agency’s interpretative rule is afforded some deference,

United States v. Mead Corp., 533 U.S. 218, 233, 234-35 (2001),

but “do[es] not have the force and effect of law” and is merely

used by “an agency to advise the public of the agency’s

construction of the statutes and rules which it administers.”

Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 99 (1995)

(quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31

(1979)); 5 U.S.C. § 553(d).

When faced with the task of distinguishing between a

substantive and an interpretative rule, most federal courts of

appeals use some variation of the legal effects test. See

American Mining Cong., 995 F.2d at 1112 (holding that the line

between substantive and interpretative rules is drawn based on

whether the rule has “legal effect”); accord Lott, 750 F.3d at

217 (“Substantive rules ‘implement the statute.’” (quoting

Chrysler Corp., 441 U.S. at 302-03)); Iowa League of Cities v.

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EPA, 711 F.3d 844, 872-73 (8th Cir. 2013); Warshauer v. Solis,

577 F.3d 1330, 1337 (11th Cir. 2009); Dia Nav. Co., Ltd. v.

Pomeroy, 34 F.3d 1255, 1264-65 (3d Cir. 1994); Metro. Sch. Dist.

v. Davila, 969 F.2d 485, 489-90 (7th Cir. 1992). The critical

question under the legal effects test is whether the rule

imposes a duty on affected parties. Cf. Chrysler Corp., 441

U.S. at 301-02 n.31 (noting that although there is no definition

for a substantive rule in the APA, a substantive rule is one

“‘affecting individual rights and obligations’” (quoting Morton

v. Ruiz, 415 U.S. 199 (1974))). If it does, the rule is

substantive. Snycor, 127 F.3d at 95; Erringer, 371 F.3d at 630;

see also Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir.

2002). This inquiry looks primarily at the language of the

statute to determine the substance of the congressional

enactment and the scope of the agency’s delegated authority,

then compares this to the language of the rule. See, e.g.,

Snycor, 127 F.3d at 95.

B. APPLICATION OF THE LEGAL EFFECTS TEST TO THE 2008 SMART
GUIDELINES

This Court reviews de novo the question whether an agency’s

rule is substantive or interpretative as a matter of law. See

Erringer, 371 F.3d at 629. The retroactive application

provision of the 2008 SMART Guidelines, which is the only aspect

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of the 2008 SMART Guidelines we consider here, constitutes a

substantive rule.

The relevant provisions of SORNA are 42 U.S.C. § 16912(b)

and § 16913(d). In § 16912(b), Congress granted the Attorney

General general rulemaking authority: “The Attorney General

shall issue guidelines and regulations to interpret and

implement [SORNA].” Section 16913(d) deals specifically with

retroactive application of SORNA’s requirements and provides

that “[t]he Attorney General shall have the authority to specify

the applicability of the requirements of [SORNA] to sex

offenders convicted before the enactment of this Act or its

implementation in a particular jurisdiction.” This is a clear

delegation of congressional power to the Attorney General to

promulgate rules in this area and, even without more, this

appears sufficient to establish that the retroactive application

provision of the 2008 SMART Guidelines is a substantive rule

with legislative force. Accord Whitlow, 714 F.3d at 46 (“[W]e

cannot ignore that § 16912(b) instructs the Attorney General to

implement the subchapter, and the subchapter includes the

specific option of making a rule on retroactivity.” (quoting

United States v. Stevenson, 676 F.3d 557, 564 (6th Cir. 2012))

(internal quotation marks omitted)); see also Lott, 750 F.3d

at 217.

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But there is more. In 2012, the Supreme Court resolved a

circuit split over the question whether SORNA’s registration

requirement took effect for pre-act offenders when SORNA was

enacted or only after the Attorney General implemented a rule to

that effect. United States v. Reynolds, 132 S. Ct. 975, 980-81

(2012). Interpreting 42 U.S.C. § 16913(d), the Supreme Court

held that “the Act’s registration requirements do not apply to

pre-Act offenders until the Attorney General so specifies.”

Reynolds, 132 S. Ct. at 984 (emphasis added).

The Supreme Court’s reading of § 16912(b) and § 16913(d) in

Reynolds compels the conclusion both that Congress delegated the

authority to promulgate a substantive rule to make SORNA apply

to pre-act offenders to the Attorney General, and that

§ 16913(d) contains a legislative gap that Congress desired the

Attorney General to fill; until he put forth a rule, SORNA’s

requirements did not apply to pre-act offenders. See Reynolds,

132 S. Ct. at 981-82.

Moreover, the Attorney General did fill this gap, and

explicitly invoked Congress’s delegation of rulemaking authority

when he established the 2008 SMART Guidelines, putting affected

individuals on adequate notice as to the legislative authority

for the rulemaking. See American Mining Cong., 995 F.2d at

1112; Proposed SMART Guidelines, 72 Fed. Reg. at 30,210-34. The

notice of proposed rulemaking and the 2008 SMART Guidelines cite

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42 U.S.C. § 16912(b) as the authority for putting forth the

retroactive application rule announced in the 2008 SMART

Guidelines. Proposed SMART Guidelines, 72 Fed. Reg. at 30,210;

2008 SMART Guidelines, 73 Fed. Reg. at 38,035-36. The broad

delegation contained within 42 U.S.C. § 16912(b) subsumes within

it the Attorney General’s narrower power to specify that SORNA

applies to pre-act offenders contained in 42 U.S.C. § 16913(d).

See Lott, 750 F.3d at 217-18; Whitlow, 714 F.3d at 46;

Stevenson, 676 F.3d at 563-64. And the notice of proposed

rulemaking for the 2008 SMART Guidelines specifically references

the Attorney General’s power to make SORNA retroactive under

§ 16913(d). Proposed SMART Guidelines, 72 Fed. Reg. at 30,212;

cf. Reynolds, 132 S. Ct. at 981-82.3

3
Appellant argues that despite the plain statutory grant of
delegated authority, and irrespective of both the Supreme
Court’s holding in Reynolds and the Attorney General’s explicit
reference to the authority delegated to him by SORNA, we should
nonetheless hold that the retroactive application provision
within the 2008 SMART Guidelines is interpretative because the
Attorney General subjectively believed that the 2007 Interim
Rule made SORNA apply retroactively before the 2008 SMART
Guidelines were promulgated. The Attorney General’s subjective
belief is not controlling. See, e.g., General Motors Corp. v,
Ruckelshaus, 242 F.2d 1561, 1565 (D.C. Cir. 1984) (“[T]he
agency’s own label, while relevant, is not dispositive.”). The
question is whether the 2008 SMART Guidelines imposed a duty and
obligation in law and are, therefore, substantive. The 2008
SMART Guidelines impose a registration obligation that does not
exist under the statute, irrespective of whether the 2007
Interim Rule temporarily imposed the same duty, and regardless
of whether that Interim Rule properly invoked “good cause” to
forego the required notice and comment procedures under 5 U.S.C.
§ 553(b)(3)(B). See United States v. Bridges, 741 F.3d 464, 468
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We hold that the 2008 SMART Guidelines’ retroactive

application provision is a substantive rule. In so holding we

are in good company. All of the federal courts of appeals that

have considered this provision of the 2008 SMART Guidelines have

treated it as substantive, not interpretative. Bridges, 741

F.3d at 468; Lott, 750 F.3d at 217; Whitlow, 714 F.3d at 46-48;

Stevenson, 676 F.3d at 563-65; United States v. Utesch, 596 F.3d

302, 310 (6th Cir. 2010).

C. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS

For a substantive rule to have the force and effect of law,

an agency must also adhere to the procedural requirements set

out in § 553 of the APA. Here, the Attorney General published

the proposed 2008 SMART Guidelines in the Federal Register on

May 30, 2007, and took comments on the proposed guidelines until

August 1, 2007. 5 U.S.C. § 553(b)-(c); Proposed SMART

Guidelines, 72 Fed. Reg. at 30,210. The proposed guidelines

contained an entire draft of the proposed rule on retroactivity.

5 U.S.C. § 553(b)(3); Proposed SMART Guidelines, 72 Fed. Reg. at

30,212-13. The affected parties were put on fair notice as to

what the rule would contain and were given an opportunity to

present their views to the agency for consideration. See

(4th Cir. 2014); Lott, 750 F.3d at 217; Whitlow, 714 F.3d at 45;
Stevenson, 676 F.3d at 563-65 (applying the 2008 SMART
Guidelines as the substantive rule governing failures to
register taking place after the guidelines were promulgated).
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Whitlow, 714 F.3d at 47. Further, in the notice of proposed

rulemaking, the Attorney General explicitly cited § 16912(b) and

§ 16913(d) as the congressionally delegated legislative

authority for putting forth the 2008 SMART Guidelines and the

retroactive application rule. 5 U.S.C. § 553(b)(2); Proposed

SMART Guidelines, 72 Fed. Reg. at 30,210, 30,212 (citing 42

U.S.C. § 16913(d) as “SORNA section 113(d)”). On July 2, 2008,

the Attorney General published the final version of the 2008

SMART Guidelines in the Federal Register. 5 U.S.C. § 553(d);

2008 SMART Guidelines, 73 Fed. Reg. at 38,030, 38,035-36. The

published final rule contains direct responses to the various

types of comments the Attorney General received regarding his

expressed intent to extend SORNA’s registration requirement to

pre-act offenders. 5 U.S.C. § 553(c); 2008 SMART Guidelines, 73

Fed. Reg. at 38,032.

The 2008 SMART Guidelines were promulgated according to the

requirements of the APA and without any procedural defect. See

Lott, 750 F.3d at 219; Whitlow, 714 F.3d at 45; United States v.

Mattix, 694 F.3d 1082, 1084 (9th Cir. 2012) (per curiam); United

States v. Trent, 654 F.3d 574, 581 (6th Cir. 2011).

IV. CONCLUSION

During the charged conduct in this case, the 2008 SMART

Guidelines were in effect and Appellant was retroactively

subject to SORNA’s registration requirement under 18 U.S.C.

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§ 2250(a) (2006). The decision of the United States Army Court

of Criminal Appeals is affirmed.

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