United States v. David May

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 07-3515
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
David Louis May, *
*
Appellant. *
___________

Submitted: May 13, 2008
Filed: July 31, 2008
___________

Before RILEY, BOWMAN, and HANSEN, Circuit Judges.
___________

RILEY, Circuit Judge.

David Louis May (May) appeals the district court’s1 denial of May’s motion to
dismiss an indictment charging him with one count of failure to register as a sex
offender in violation of 18 U.S.C. § 2250(a), the Sex Offender Registration and
Notification Act (SORNA).2 The district court found (1) SORNA applies to May,
(2) SORNA’s retroactive application does not violate the ex post facto clause,

1
The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
2
Codified at 42 U.S.C. §§ 16901-16991.
(3) Congress did not improperly delegate legislative responsibility to the Attorney
General in violation of the non-delegation doctrine, (4) application of SORNA to May
did not violate May’s due process rights, and (5) Congress’s enactment of SORNA
was a permissible exercise of its authority under the commerce clause. We affirm.

I. BACKGROUND3
In 1994, May pled guilty in Oregon to misdemeanor sexual conduct. The
Oregon sex offender law required May to register as a sex offender and to keep his
registration updated. See O.R.S. § 181.595. May first registered on June 26, 2000.
May thereafter moved to Maryland, and both failed to update his Oregon registration,
pursuant to O.R.S. § 181.596, and failed to register as a sex offender in Maryland, as
required by Maryland law, see Md. Code Ann. Crim. Pro. §§ 11-701 to 11-705.

May was arrested on June 19, 2002, and later convicted for failing to register
in Maryland as a sex offender. On July 11, 2002, May registered in Maryland, but
May again failed to update his registrations after he was released from jail on
November 6, 2002. May returned to Oregon, failed to update his registration there,
and, on December 21, 2004, was convicted for failing to register as a sex offender in
Oregon. May then updated his registration in Oregon, which he kept current through
November 8, 2006. On November 18, 2006, May relocated to Iowa, and neither
updated his registration in Oregon, nor registered as a sex offender under Iowa law.
See Iowa Code § 692A.1-.16.

On June 20, 2007, May was indicted under SORNA for being a sex offender
who traveled in interstate commerce and knowingly failing to register and update his
registration. May moved to dismiss the indictment. The district court rejected each

3
Many of the facts are not available in the direct record on appeal. Because the
parties agree on all of the material facts, we primarily rely on the facts set forth in the
district court’s thorough, well-reasoned opinion.

-2-
of May’s arguments, and denied May’s motion. May pled guilty, but reserved his
right to appeal the district court’s order denying his motion to dismiss. May now
appeals.

II. DISCUSSION
The parties agree none of the issues in this appeal involve factual disputes.
Each issue involves either statutory interpretation of SORNA or constitutional
challenges to SORNA’s applicability. We therefore review each issue de novo. See
Royal v. Kautzky, 375 F.3d 720, 722 (8th Cir. 2004) (“We review claims of
constitutional error and issues of statutory construction de novo.” (internal citation and
quotation marks omitted)).

A. Applicability of SORNA
May contends SORNA does not apply to him because his travel in interstate
commerce, although occurring after SORNA’s enactment, occurred before the
Attorney General issued an interim ruling designating the applicability of SORNA to
offenders convicted before SORNA’s date of enactment. SORNA provides, in
pertinent part:

(a) In general
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. For initial registration
purposes only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the jurisdiction of
residence.

(b) Initial registration
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.

-3-
 (c) Keeping 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. That jurisdiction shall immediately
provide that information to all other jurisdictions in which the offender
is required to register.

(d) Initial registration of sex offenders unable to comply with
subsection (b) of this section
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 [the enactment of this Act] 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.

Section 16913(a)-(d).

On February 28, 2007, the Attorney General issued an interim rule effective
February 28, 2007, which states in pertinent part:

[T]he requirements of [SORNA] apply to all sex offenders, including sex
offenders convicted of the offense for which registration is required prior
to enactment of that Act.

72 Fed. Reg. 8894 (to be codified at 28 C.F.R. § 72.3).

During the pendency of this appeal, the Eleventh Circuit Court of Appeals
issued an opinion interpreting § 16913(d) and SORNA’s retroactivity. See United
States v. Madera, 528 F.3d 852 (11th Cir. 2008). Madera involved a slightly different
factual background than we have before us. Unlike May, the defendant in Madera was
prosecuted and convicted before the Attorney General issued the interim rule. Id. at

-4-
857. Because the Eleventh Circuit’s reasoning plainly impacts May’s case, we will
hereafter address Madera. Before doing so, it will be useful to discuss the various
manners in which district courts have interpreted § 16913(d) in cases preceding
Madera.

In the interest of brevity, we discuss only a few demonstrative district court
cases, which interplay with each other. In United States v. Muzio, No. 4:07-CR-179,
2007 WL 2159462 (E.D. Mo. July 26, 2007), upon which May relies, the defendant,
like May, was convicted before SORNA’s enactment, and traveled to another state
(Missouri) after SORNA’s passage, but before the Attorney General issued the interim
regulation. Id. at *2. The Muzio court concluded § 16913(d) was unambiguous, and
found:

Under the plain language of the statute, the registration requirements of
[§ 16913(a)] have only prospective applicability until the Attorney
General acted pursuant to [§ 16913(d)]. Section [16913(d)]
unequivocally authorizes the Attorney General to “specify the
applicability” of SORNA to offenders who, like Muzio, were convicted
of predicate sex offenses before SORNA’s effective date of July 27,
2006.

Id. at *3. The Muzio court discounted the title of § 16913(d), noting, “Only the title
raises any question about § [16913(d)]’s meaning. But a title does not make a statute
ambiguous when the words are plain: ‘section and subchapter titles cannot alter the
plain meaning of a statute; they can only assist in clarifying ambiguity.’” Id. (quoting
Minnesota Transp. Regulation Bd. v. United States, 966 F.2d 335, 339 (8th Cir.
1992)). The Muzio court adopted the reasoning of United States v. Kapp, 487
F.Supp.2d 536 (M.D. Pa. 2007):

Section [16913(d)] comprises two clauses. The first clause . . .
authorizes the Attorney General to “specify the applicability” of SORNA
to past offenders. The second clause authorizes the Attorney General to

-5-
 promulgate regulations related to the registration of sex offenders under
SORNA. Although the first clause speaks to “sex offenders convicted
before the enactment of this Act or its implementation in a particular
jurisdiction,” the second clause provides authority to promulgate
regulations “for the registration of any such [previously convicted] sex
offenders and for other categories of sex offenders who are unable to
comply with subsection (b).” The words “any such” and “other
categories” in the second clause indicate that § [16913(d)] contemplates
two groups of sex offenders: (1) past offenders and (2) those unable to
initially register under subsection (b). Significantly, the first clause of §
[16913(d)], which addresses SORNA’s applicability, only covers the
first group: past offenders. Therefore, when the two clauses are read in
conjunction, the first clause of § [16913(d)] unambiguously provides the
Attorney General with the authority to define the retrospective
applicability of SORNA’s registration requirements to past offenders.

Muzio, 2007 WL 2159462, at *4 (quoting Kapp, 487 F.Supp.2d at 542).

In United States v. Roberts, 2007 WL 2155750 (W.D. Va. July 27, 2007), the
district court took a position directly opposite from that taken in Muzio and Kapp.
Rather than looking only at § 16913(d), the Roberts court looked at the entirety of the
statute and found:

The bulk of the statute does not make a distinction between those
convicted before the Act and those convicted after. It imposes its
requirements on “sex offenders,” without qualification. The proper
distinction for these purposes is between those who are currently
registered, and those who are not. Those currently registered are
unambiguously required by subsections (a) and (c) to keep their
registrations current. Those not currently registered must register in
accordance with the “initial registration” provisions in subsection (b).
Subsection (d), as its title reveals, is very narrow in scope: only those
currently unregistered offenders literally unable to comply with
(b) because of the age of their convictions are within the grey area which
the Attorney General is authorized to illuminate by rule. In this

-6-
 subsection, Congress did distinguish between convictions from before
and after the enactment of the act. But it is clear from the context that
their intent was not to exempt all sex offenders convicted before July
2006 from registration requirements, but rather to avoid the obvious
injustice of requiring such offenders to do the impossible by registering
within 3 days of their years-old convictions.

Roberts, 2007 WL 2155750, at *2 (some emphasis added). The Roberts court further
“bolstered” its interpretation by relying on legislative history. Id.

As the Muzio court did, the Eleventh Circuit expressly adopted the reasoning
of Kapp, saying:

We read the text [of § 16913(d)], as did the Kapp court, among others,
as being comprised of two clauses. The first gives the Attorney General
authority to determine whether SORNA applies retroactively to all sex
offenders, and the second gives the Attorney General authority to
promulgate rules regarding initial registration.

Madera, 528 F.3d at 858. The Eleventh Circuit reasoned:

The plain language of the statute makes clear that Congress gave only
the Attorney General the authority to determine SORNA’s retroactivity.
The statute clearly says, “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. § 16913(d). Congress’s use of the
word “shall” indicates that Congress was issuing a directive to the
Attorney General specifically to make the determination.

Id. at 857 (citation omitted). We respectfully disagree. Although the word “shall”
indicates a congressional directive, the question remains as to what § 16913(d) was
specifically directing the Attorney General to regulate.

-7-
 We recognize the Roberts court’s interpretation suffers from a significant flaw.
The Roberts decision relies on § 16913(d)’s title without first finding the text of the
statute ambiguous. See Minnesota Transp. Regulation Bd., 966 F.2d at 339. An
alternate approach interpreting the statute is well articulated by the court in United
States v. Beasley, 2007 WL 3489999 (N.D. Ga. Oct. 10, 2007). In Beasley, the
Northern District of Georgia first analyzed SORNA’s plain text, and found it
ambiguous. Id. at *5-6. The court then included the title of subsection (d) in its
consideration. Id. at *6. The Beasley court explained:

Contrary to the courts’ findings in Muzio and Kapp, . . . the text of
§ 16913(d), when considered in isolation and out of context, is
ambiguous. 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 Attorney General was given authority under
subsection (d) to issue clarifying regulations. In light of this ambiguity,
the title of subsection (d) should be considered. . . . Once the title is
considered, the ambiguity in the one sentence text that follows the
descriptive title is resolved, and it becomes clear that subsection (d) only
applies to initial registration. This construction makes sense when one
considers that a sex offender convicted before July 27, 2006, would, in
many cases, be unable to comply with the initial registration
requirements of SORNA because the time limits for initial registration
would have already passed when SORNA was enacted. Accordingly, the
[court] agrees with [the] analysis from Roberts.

Id. (internal citation omitted) (emphasis added).

We find both the Beasley court’s approach, and its accompanying
interpretation, consistent with our statutory construction rules and eminently
reasonable. We thus respectfully disagree with the Eleventh Circuit’s adoption of the
alternate reasoning of Kapp. See Madera, 528 F.3d at 858.

-8-
 The “additional possible meaning of subsection (d)” the Beasley court describes
is supported by the use of the statutory terminology “other categories of sex offenders
who are unable to comply with subsection (b) of this section.” Section 16913(d)
(emphasis added). The use of this language indicates, as the Beasley court explained,
the “offenders convicted before July 27, 2006 ” are indeed included within the “other
categories of sex offenders who are unable to comply with subsection (b) of this
section.” At the very least, this creates an ambiguity, and triggers the permissible
reference to the title. See I.N.S. v. National Center for Immigrants’ Rights, Inc., 502
U .S. 183, 189 (1991) (restating “the title of a statute or section can aid in resolving
an ambiguity in the legislation’s text”). We hold the text of subsection (d) is
ambiguous. When also considering § 16913(d)’s title and the overall design of
SORNA, subsection (d) “is very narrow in scope: only those currently unregistered
offenders literally unable to comply with [subsection] (b) because of the age of their
convictions are within the grey area which the Attorney General is authorized to
illuminate by rule.” Roberts, 2007 WL 2155750, at *2. May is in the same position
as the defendant in Roberts:

[May], a sex offender who was registered prior to the enactment of
SORNA, was required to keep his registration current in accordance with
its terms. Because he had first registered [] before SORNA, subsections
(b) and (d), concerned exclusively with initial registration, do not apply
to him. Thus he is a person “required to register under [SORNA]” and
subject to the penalties imposed by 18 U.S.C. [§] 2250(a).”

Id. (emphasis in the original).

The Eleventh Circuit contended its contrary “reading of the statute [was]
supported by the fact that the Attorney General in fact exercised his full discretion to
determine its retroactivity when he issued the interim rule.” Madera, 528 F.3d at 858.
We again respectfully disagree. The comments supporting the Attorney General’s
interim rule contain an example completely in line with the interpretation we adopt
herein. See 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007). The Attorney General did not
-9-
believe a rule was even needed to confirm SORNA’s applicability to defendants such
as May. See id. at 8896. Rather, the Attorney General only promulgated the rule as
a precautionary measure to “foreclose[] such claims [as May’s] by making it
indisputably clear that SORNA applies to all sex offenders (as the Act defines that
term) regardless of when they were convicted.” Id. (emphasis added). SORNA
applies to May.

B. Ex Post Facto Clause
May next argues application of SORNA to his case violates the ex post facto
clause. The district court determined there was no ex post facto violation, and we
agree.

The district court predominantly relied on the United States Supreme Court’s
decision in Smith v. Doe, 538 U.S. 84, 89-90, 105-06 (2003), in which the Supreme
Court held the Alaska Sex Offender Registration Act was civil and nonpunitive, and
thus its retroactive application did not violate the ex post facto clause. We recognize,
as did the district court in Beasley, “the issue is very different [than in Smith]. It is
whether imposing criminal penalties for traveling to and residing in a new state and
not registering as a sex offender in that new state at a time before the Attorney General
issued his interim regulation violates the Ex Post Facto Clause.” Beasley, 2007 WL
3489999, at *3. If a defendant, like May, is not even subject to the Attorney General’s
regulation under § 16913(d) (which we have already determined), then neither the
promulgation of the regulation nor § 16913(d) would present an ex post facto clause
problem in such a case. To the extent May challenges the overall applicability of
SORNA, the ex post facto framework outlined in Smith leads to the conclusion
SORNA does not violate the ex post facto clause.

In analyzing an ex post facto violation, courts must first determine whether “the
legislature meant the statute to establish ‘civil’ proceedings.” Kansas v. Hendricks,
521 U.S. 346, 361 (1997). If Congress intended SORNA to impose punishment for
a pre-existing crime, the statute violates the ex post facto clause. See Smith, 538 U.S.
-10-
at 92. Conversely, if it was Congress’s intention “to enact a regulatory scheme that
is civil and nonpunitive,” courts must further examine “whether the statutory scheme
is so punitive either in purpose or effect as to negate [Congress’s] intention to deem
it civil.” Id. (internal citation and quotation marks omitted).

To determine whether the statutory scheme at issue is punitive or regulatory,
courts must determine whether Congress “indicated either expressly or impliedly a
preference for one label or the other.” Smith, 538 U.S. at 93. Congress stated its
purpose in establishing a comprehensive national system for registration of sex
offenders was “to protect the public from sex offenders and offenders against children,
and in response to the vicious attacks by violent predators.” 42 U.S.C.A. § 16901. As
was the case in Smith, SORNA’s registration requirement demonstrates no
congressional intent to punish sex offenders. Congress described SORNA as a public
safety measure. See § 16901.

Even though Congress’s intent “was to enact a regulatory scheme that is civil
and nonpunitive,” we must look further to see if the statutory scheme is so punitive
that it negates Congress’s intention to deem the act civil. See Smith, 538 U.S. at 92.
“[O]nly the clearest proof will suffice to override legislative intent and transform what
has been denominated a civil remedy into a criminal penalty.” Id. at 92 (internal
quotations omitted).

The only punishment that can arise under SORNA comes from a violation of
§ 2250, which punishes convicted sex offenders who travel in interstate commerce
after the enactment of SORNA and who fail to register as required by SORNA.
Congress clearly intended SORNA to apply to persons convicted before the Act’s
passage. The Act defines a sex offender as “an individual who was convicted of a sex
offense.” § 16911(1) (emphasis added). If SORNA did not apply to previously
convicted sex offenders, SORNA would not serve Congress’s stated purpose of
establishing a “comprehensive national system” for sex offender registration.
Section 16901. As applicable to May, the elements of § 2250 are: (1) being a sex
-11-
offender, (2) traveling in interstate commerce, and (3) failing to register or update a
registration. Although May became a sex offender by way of a conviction before
enactment of SORNA, the first element merely identifies to whom the statute applies;
it is not a triggering event. Cf. United States v. Woods, 696 F.2d 566, 571-72 (8th
Cir. 1982) (finding no ex post facto concern for a conviction for being a felon in
possession of a firearm where there was no evidence the firearm traveled in interstate
commerce after enactment of the statute because the interstate commerce element only
defined the type of gun involved, and it was not a triggering event for the violation).
Section 2250 punishes an individual for traveling in interstate commerce and failing
to register. The statute does not punish an individual for previously being convicted
of a sex crime. There is no dispute May both traveled in interstate commerce and
failed to update his registration after enactment of SORNA. Thus, prosecuting May
under § 2250 is not retrospective and does not violate the ex post facto clause.4

C. Non-Delegation Doctrine
May next argues SORNA’s delegation of authority to the Attorney General
under § 16913(d) violates the non-delegation doctrine. Because May was not a person
unable to register before SORNA’s enactment and § 16913(d)’s authorizing the
Attorney General to promulgate rules regarding its applicability does not even apply
to him, May lacks standing to raise this challenge. See United States v. Hays, 515
U.S. 737, 742-43 (1995) (outlining the minimum requirements to establish standing).

4
May argues SORNA “dramatically increases the penalty for his interstate travel
and failure to register or keep his registration current.” As the government correctly
notes, previously enacted federal statutes “such as the Lyncher [A]ct, effective
October 21, 1998, . . . made it a federal crime for a sex offender required to register
in his home state to fail to register as a sex offender in any other state in which the
offender relocated or was employed.” (citing 42 U.S.C. § 14072(i)). Under the
Lyncher Act, a repeat offender, as May, is subject to a statutory maximum term of ten
years imprisonment. See id.
-12-
 D. Due Process
May next contends application of SORNA to his conduct violates his due
process rights. May’s contention, when boiled down to its essence, amounts to an
“ignorance of the law” argument. May correctly notes there is an exception to the
general “ignorance of the law is no excuse” maxim, citing Lambert v. California, 355
U.S. 225, 228-29 (1957). The district court correctly distinguished Lambert, noting:

The Lambert Court found an exception to the ignorance is no excuse rule
may exist if (1) the defendant’s conduct was wholly passive, (2) the
defendant is not per se blameworthy, and (3) there was an absence of
circumstances alerting the defendant of the consequences of the deed.
[Id.] at 228-29. In the context of examining public welfare statutes
lacking a scienter requirement, the Court has reasoned Congress has
weighed the possible injustice imposed on a defendant by disposing of
a knowledge of the law requirement and found it does not outweigh the
benefit to the person the law is meant to protect. United States v. Freed,
401 U.S. 601, 609-10 (1971).

As part of his plea agreement, May admitted he knew, based on previously enacted
state laws, he had an obligation to register and keep his registration current when
moving between jurisdictions. May also, as the district court found, “received plenty
of information regarding those registration obligations.” May’s due process rights
were not violated.

E. Commerce Clause
May alleges SORNA violates the commerce clause because it fails to establish
a constitutionally sufficient nexus to the regulation of interstate commerce. The
power to regulate commerce between the states includes the power to regulate the
following:

(1) “the use of the channels of interstate commerce”;

-13-
 (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).

For May to be convicted, SORNA requires the government to prove May
traveled in interstate or foreign commerce, and thereafter failed to register as required
by SORNA. See 18 U.S.C. § 2250(a)(2)(B). SORNA thus derives its authority from
each prong of Lopez—and most specifically, the ability to regulate “persons or things
in interstate commerce” and “the use of the channels of interstate commerce.” May
was undeniably a “person . . . in interstate commerce” in that he traveled and relocated
between various states, and traveled among many other states. May did so via the
“use of the channels of interstate commerce.” It has been long established Congress
may forbid or punish use of interstate commerce “as an agency to promote immorality,
dishonesty or the spread of any evil or harm to the people of other states from the state
of origin.” Brooks v. United States, 267 U.S. 432, 436 (1925) (emphasis added).
Congressional regulation of the channels of interstate commerce has also been upheld
when the punishment “was intended to prevent the use of interstate commerce to
facilitate . . . forms of immorality.” Id. at 437 (citation omitted). SORNA contains
a sufficient nexus to interstate commerce.

May attempts to argue his case is more akin to Lopez, 514 U.S. at 551, in which
the Supreme Court struck down the Gun-Free School Zones Act, and United States
v. Morrison, 529 U.S. 598, 601-02, 617 (2000), in which the Supreme Court struck
down the Violence Against Women Act, 42 U.S.C. § 13981(b) (VAWA). Lopez and
Morrison are distinguishable in two significant respects.

First, the Gun-Free School Zones Act and the VAWA did not contain a
jurisdictional “hook”—or “jurisdictional element establishing that the federal cause
of action is in pursuance of Congress’ power to regulate interstate commerce.” Lopez,
-14-
514 U.S. at 562; Morrison, 529 U.S. at 613. Congress’s addition of such a
jurisdictional “hook” in the Gun-Free School Zones Act proved sufficient to validate
the revised Gun-Free School Zones Act. See United States v. Danks, 221 F.3d 1037,
1038-39 (8th Cir. 1999). SORNA includes an express and clear jurisdictional element
for individuals not convicted pursuant to federal jurisdiction. See § 2250(a)(2)(B).

Second, Lopez and Morrison related to the third Lopez prong: “a regulation of
activity that substantially affects interstate commerce.” Lopez, 514 U.S. at 559; see
Morrison, 529 U.S. at 609. SORNA is more easily supported by the first and second
Lopez prongs. Thus, we need not address May’s contention “SORNA was not
accompanied by findings [that the activity in question exerted a ‘substantial influence
on interstate commerce’] similar to those in support of the [Controlled Substances
Act] regulation considered [and upheld] in [Gonzales v. Raich, 545 U.S. 1 (2005)].”
Even if this argument effectively distinguished Raich, and the third Lopez prong,
SORNA would still remain valid under the first two interstate commerce jurisdictional
prongs.

III. CONCLUSION
The judgment of the district court is affirmed.
______________________________

-15-