United States v. Parks

United States Court of Appeals
For the First Circuit

No. 11-1194

UNITED STATES OF AMERICA,

Appellee,

v.

BRIAN PARKS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

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

Before

Torruella, Boudin and Thompson,

Circuit Judges.

J. Hilary Billings, Assistant Federal Defender, Federal
Defender Office, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief
for appellee.

October 16, 2012
 BOUDIN, Circuit Judge. Brian Parks was convicted under

the U.S. Criminal Code, 18 U.S.C. § 2250(a) (2006), for traveling

in interstate commerce and then knowingly failing to update his sex

offender registration at his destination as required by the Sex

Offender Registration and Notification Act ("SORNA"), Pub. L. No.

248, tit. I, 120 Stat. 587, 590-611 (2006) (codified primarily at

18 U.S.C. § 2250 and 42 U.S.C. §§ 16901-16962). He now appeals to

challenge his conviction and his sentence.

Prior to his travel-and-failure-to register offense now

at issue, Parks had been convicted of sexual offenses in

Massachusetts, one in January 1990, and another in June 1996. He

was notified in writing on September 21, 2006, of his duty to

register under SORNA. He initially registered in Massachusetts but

then failed to register in Maine when, at some point in 2009, he

began to reside in Maine. Parks was warned to register in Maine by

a policeman who encountered him there in August 2009, but he

ignored the warning.

On February 8, 2010, Maine police discovered that Parks

had been living at a motel in Maine since November 21, 2009, and

that there were warrants out for his arrest on a probation-

violation charge in Massachusetts, apparently for having failed to

update his registration in that state in July 2009. He was

arrested and was returned to Massachusetts. There he admitted to

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the Massachusetts probation violation and was sentenced by a

Massachusetts state court to two and a half years in prison.

In May 2010, Parks was indicted by a federal grand jury

in Maine on one count of traveling in interstate commerce and

knowingly failing to update a registration as required by SORNA, 18

U.S.C. § 2250(a). After the district court denied Parks' several

challenges to SORNA, he pled guilty conditioned on his right to

appeal the legal objections urged in his failed motion to dismiss.

Thereafter he was sentenced by the district court to 35 months'

imprisonment consecutive to his state sentence for violating

probation. He now appeals to pursue his reserved contentions.

SORNA was enacted in July 2006 under Congress' Commerce

Clause power to create "a comprehensive national system for the

registration of [sex] offenders," 42 U.S.C. § 16901; the statute

requires sex offenders to register, and to keep their registrations

current, in each jurisdiction where they reside, work, or attend

school. Id. §§ 16913(a) & (c). SORNA imposes criminal sanctions

on convicted sex offenders subject to its registration requirements

who travel in interstate commerce and knowingly fail to register or

update their registrations. 18 U.S.C. § 2250(a).

By its own terms, SORNA's registration requirements

applied automatically to individuals who committed a triggering

sexual offense after the statute's enactment in July 2006. The

Attorney General was told to decide whether SORNA should be applied

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to those who committed their triggering sexual offense before

SORNA's enactment. 42 U.S.C. § 16913(d). The Attorney General

ruled that it should so apply.1 But just when this approval became

effective was the subject of dispute and was answered only recently

by the Supreme Court in Reynolds v. United States, 132 S.Ct. 975

(2012), resolving a circuit split on the matter. Id. at 981.

In Reynolds the Supreme Court held that SORNA's

prohibition of travel and failure to register applied to pre-SORNA

sexual offenders like Parks only where the travel and non-

registration occurred after the Attorney General's approval had

occurred, rather than from the date of SORNA'S enactment. 132 S.Ct.

at 984. The Supreme Court did not, however, determine whether this

approval should be deemed effective in February 2007, when an

Interim Rule was promulgated on an emergency basis to make SORNA

applicable to pre-SORNA sexual offenses, or on August 1, 2008, when

the so-called SMART guidelines issued by the Attorney General

became effective.

1
Applicability of the Sex Offender Registration and
Notification Act, 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007) (codified
at 28 C.F.R. § 72.3); The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008).

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 The circuits are in disagreement about this issue,2 and

our circuit has not yet addressed it because, like four other

circuits, we had previously believed that SORNA applied to pre-Act

offenders from the moment of its enactment. However, several of

our decisions resting on this premise were vacated after Reynolds:

United States v.DiTomasso, 621 F.3d 17 (1st Cir. 2010), vacated,

132 S.Ct. 1533 (2012); United States v. Stevens, 640 F.3d 48 (1st

Cir. 2011), vacated, 132 S.Ct. 1739 (2012); United States v.

Gagnon, 621 F.3d 30 (1st Cir. 2010), vacated, 132 S. Ct. 1533

(2012).

Conversely, the Supreme Court denied certiorari on a

similar case from this circuit in which the offender traveled after

the Interim Rule but before the SMART regulations. United States

v. Thompson, 431 Fed. App'x 2 (1st Cir. 2011), cert. denied, 132 S.

Ct. 1739 (2012). This might suggest that the Supreme Court agrees

with the circuits supporting the Interim Rule date but it has not

formally decided the issue and we have no occasion to resolve it

here, since Parks would be covered whether the Interim Rule date or

the 2008 SMART guidelines date controlled.

2
Compare United States v. Dean, 604 F.3d 1275, 1282 (11th
Cir), cert. denied, 131 S. Ct. 642 (2010) (finding that the Interim
Rule governs), and United States v. Gould, 568 F.3d 459, 470 (4th
Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010) (same), with
United States v. Utesch, 596 F.3d 302, 310 & 311 n.8 (6th Cir.
2010) (finding that the 2008 action governs), and United States v.
Valverde, 628 F.3d 1159, 1169 (9th Cir. 2010), cert. denied, 132 S.
Ct. 1534 (2012) (same).

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 Thus, Parks pled guilty to an indictment alleging that he

traveled in interstate commerce and knowingly failed to update his

registration between November 21, 2009, and February 7, 2010, long

after the 2008 SMART guidelines were promulgated by the Attorney

General, and Parks makes no argument that the registration

requirements took effect on an even later date. Parks suggests

that we remand the matter to the district court for further

consideration but does not explain what purpose would be served by

a remand.

Reynolds--a statutory interpretation decision--does not

address Parks' separate claim on appeal that applying SORNA to him

violates the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3.

The most familiar argument in this vein--that Congress cannot

criminalize conduct after it occurs--does not operate here because

while Parks' sexual offenses occurred pre-SORNA, the travel and

failure to register for which he was punished occurred after SORNA.

Thompson, 431 Fed. App'x at 4. Rather, Parks invokes the Ex Post

Facto Clause by arguing that SORNA's registration requirements

impermissibly increase his punishment for his earlier sexual

offenses--an issue of law which we consider de novo.

The Ex Poste Facto argument turns on whether SORNA is

deemed a civil regulatory measure aiming at forestalling future

harm or is instead punitive either in its purpose or effect. See

Smith v. Doe, 538 U.S. 84, 92 (2003). If the sole issue were

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professed legislative purpose, the answer would be obvious: the Act

clearly states that its purpose is 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. The mechanics of the statute's

registration scheme are consistent with this preventive aim.

The Supreme Court has said that we "ordinarily defer to

the legislature's stated intent . . . [and] only the clearest proof

will suffice to override legislative intent and transform what has

been denominated a civil remedy into a criminal penalty." Smith,

538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361

(1997) and Hudson v. United States, 522 U.S. 93, 100 (1997)

(internal quotation marks omitted)). But, in principle, a statute

declared by Congress to be regulatory rather than punitive can

still be re-christened by a court under some circumstances. Thus,

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), asks

whether a scheme

-imposes an affirmative disability or
restraint;

-has been regarded in our history and
traditions as a punishment;

-comes into play only on a finding of
scienter;

-promotes the traditional aims of punishment;

-applies to behavior that is already a crime;

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 -has a rational connection to a nonpunitive
purpose; and

-is excessive with respect to this purpose.

SORNA is surely burdensome for those subject to it. A

sex offender must register in each jurisdiction where he resides,

works, or goes to school, 42 U.S.C. § 16913(a), and he must

periodically appear in person to verify and update certain

information,3 and also to be photographed. Id. § 16916. Given his

offenses, Parks will have to do this every three months for the

rest of his life, id. §§ 16915(a), 16916(b), although the period

may be reduced if he fulfills certain requirements. Id. §

16915(b).

SORNA also establishes an online federal sex offender

database (which is publically available) and instructs individual

jurisdictions to establish their own similar databases, which

include the offender's name, physical description, photograph,

criminal offense, criminal history, and any other information

required by the Attorney General. 42 U.S.C. §§ 16914, 16918,

16919, 16920. The prospective disadvantages to Parks from such

publicity are obvious.

3
When he registers, an offender must be fingerprinted and
provide his name, any aliases, his social security number, the
address of each residence where he resides or will reside, the name
and address of any place where he is an employee or will be an
employee, the name and address of any place where he is a student
or will be a student, the license plate number and a description of
any vehicle he owns or operates, and any other information required
by the Attorney General. 42 U.S.C. § 16914.

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 However, in Smith, the Supreme Court found that Alaska's

nearly identical registration requirement served to "make a valid

regulatory program effective and [did] not impose punitive

restraints in violation of the Ex Post Facto Clause." 538 U.S. at

102. The main distinction is that SORNA requires that Parks appear

in person to register and update registration, 42 U.S.C. § 16916,

while--as Smith itself noted--the Alaska statute did not and the

Ninth Circuit, which had found the Alaska scheme unconstitutional,

"was under a misapprehension, albeit one created by the State

itself during the argument below, that the offender had to update

the registry in person." 538 U.S. at 101.

To appear in person to update a registration is doubtless

more inconvenient than doing so by telephone, mail or web entry;

but it serves the remedial purpose of establishing that the

individual is in the vicinity and not in some other jurisdiction

where he may not have registered, confirms identity by fingerprints

and records the individual's current appearance. Further, the

inconvenience is surely minor compared to the disadvantages of the

underlying scheme in its consequences for renting housing,

obtaining work and the like--consequences that were part of the

package that Smith itself upheld.

Admittedly, SORNA's registration requirement arises at

the time of criminal sentencing, and it is imposed in direct

response to conviction for a criminal act; but this was equally

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true in Smith, which said that "[t]he policy to alert convicted

offenders to the civil consequences of their criminal conduct does

not render the consequences themselves punitive." Smith, 538 U.S.

at 95-96. Registration is frequently part of civil regulation,

including car licensing, social security applications, and

registering for selective service.

Parks' only hope is the last of the Mendoza-Martinez

criteria, which permits him to argue that the impact of the scheme

"is excessive with respect to the [regulatory] purpose." 372 U.S.

at 169. But Smith expressly rejected the argument that "wide

dissemination" of such information was excessive, finding a similar

public notification system "reasonable in light of the nonpunitive

objective." Smith, 538 U.S. at 103-05. Accordingly, we join every

circuit to consider the issue and reject the main claim made by

Parks.4

Parks next asserts that SORNA reaches beyond the limits

of Congress' power under the Commerce Clause. See United States v.

Lopez, 514 U.S. 549, 558-59 (1995). This court rejected such an

4
See United States v. Young, 585 F.3d 199, 204 (5th Cir.
2009); United States v. Hinckley, 550 F.3d 926, 936-37 (10th Cir.
2008), cert. denied, 556 U.S. 1240 (2009); United States v. May,
535 F.3d 912, 919 (8th Cir. 2008), cert. denied, 556 U.S. 1258
(2009); United States v. Lawrance, 548 F.3d 1329, 1333-34 (10th
Cir. 2008); see also United States v. Cotton, 760 F. Supp. 2d 116,
135-36 (D.D.C. 2011), appeal dismissed, 2012 U.S. App. LEXIS 8464
(D.C. Cir. Apr. 9, 2012); United States v. Talada, 631 F. Supp. 2d
797, 806-08 (S.D.W. Va. 2009) aff'd, 380 Fed. App'x 255 (4th Cir.
2010), cert. denied, 131 S. Ct. 821 (2010).

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argument in DiTomasso, concluding that SORNA was a legitimate

exercise of Congress's Commerce Power as it is not dependant on

indirect effects on commerce but "explicitly regulates the use of

the channels of, and persons in, interstate commerce." 621 F.3d at

26. Although after Reynolds the Supreme Court vacated and remanded

DiTomasso, it did so only because this court had deemed SORNA

effective on enactment as to pre-SORNA offenders.

DiTomasso's reasoning on the Commerce Clause question

remains the expressed position of this circuit even though the

judgment was vacated on other grounds, see United States v.

Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006); cf. United States v.

Franco-Santiago, 681 F.3d 1, 12 (1st Cir. 2012) (following United

States v. Thurston, 358 F.3d 51, 63 (1st Cir. 2004), vacated on

other grounds, 543 U.S. 1097 (2005)). Our resolution is also

consistent with the judgment of every other circuit court to

consider the matter.5 Given the discussion in DiTomasso and the

cases cited in the margin, further elaboration is unnecessary.

Next, Parks argues that SORNA as applied to him violates

the Due Process Clause, because the two states among which he moved

had not implemented the Act at the time of his violation. He says

5
See, e.g., United States v. Coleman, 675 F.3d 615, 619-21
(6th Cir.), cert. denied, 2012 U.S. LEXIS 7021 (2012); United
States v. Guzman, 591 F.3d 83, 89-91 (2d Cir.), cert. denied, 130
S. Ct. 3487 (2010); United States v. Shenandoah, 595 F.3d 151, 160-
61 (3d Cir.), cert. denied, 130 S. Ct. 3433 (2010); United States
v. Zuniga, 579 F.3d 845, 850 (8th Cir. 2009), cert. denied, 130 S.
Ct. 3384 (2010); Hinckley, 550 F.3d at 939-40.

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it would have been impossible for him to have registered in Maine

and that he was denied constitutionally adequate notice of his duty

to register. But while SORNA requires the states to maintain sex

offender registries along certain lines, every state had a sex

offender registration law in place when SORNA became law.

DiTomasso, 621 F.3d at 27.

Parks in fact registered under the Massachusetts law and

could equally have registered under the Maine law when he moved

there, as he was warned to do by a Maine police officer. He lacked

neither notice nor the means to comply with SORNA. We rejected a

like argument in DiTomasso, see id., and Gagnon, see Gagnon, 621

U.S. at 33, and, once again, their authority in this circuit on

this issue was not impaired by Reynolds' disagreement with the

decisions on an entirely different issue.

Parks next claims that the Attorney General's statutory

authority to apply the registration requirements to those convicted

of sexual offenses before SORNA's enactment contravenes

constitutional limitations on the delegation of legislative power.

The pertinent precedents require that when Congress confers

decision-making authority, it must "lay down by legislative act an

intelligible principle to which the person or body authorized to

[act] is directed to conform." J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928).

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 SORNA provided such principle by specifying the

regulatory policy that the registration system represents and by

effectively delegating to the Attorney General the judgment whether

this policy would be offset, in the case of pre-SORNA sexual

offenders, by problems of administration, notice and the like for

this discrete group of offenders--problems well suited to the

Attorney General's on-the-ground assessment. All other circuits

that have addressed the issue have rejected the delegation

objection, which modern case law tends regularly to disfavor.6

Parks' final challenge is not to SORNA but to his own

sentence. His concern here is not with his 35 month sentence but

with the decision of the district court to make it consecutive to,

rather than concurrent with, his 30 month sentence imposed by the

Massachusetts state court for violating his state probation

requirement by failing to update his Massachusetts sex offender

registration.

Parks' first objection is that the district court was

mistaken in assuming that he was obliged to make the sentence

concurrent. The district judge, when asked to make the federal

sentence concurrent, refused, saying: "What I'm going to do in this

case, I take into account the lengthy sentence he is already

6
See, e.g., United States v. Felts, 674 F.3d 599, 606 (6th
Cir. 2012); United States v. Rogers, 468 Fed. App'x 359, 362 (4th
Cir. 2012); Guzman, 591 at 93; United States v. Ambert, 561 F.3d
1202, 1213 (11th Cir. 2009); United States v. Whaley, 577 F.3d 254,
263-64 (5th Cir. 2009).

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serving, and I believe that I'm precluded from making the sentences

concurrent under the existing circumstances, though I wouldn't do

it if I were permitted to do so." The Sentencing Guidelines do

provide for a consecutive sentence, U.S.S.G. § 5G1.3, cmt. n.3(C),

but the district court is now free under United States v. Booker,

543 U.S. 220 (2005), to disregard them.

Parks did not challenge the district court's premise at

sentencing or invoke the Booker exception; but anyway the district

judge's failure to acknowledge the exception did not prejudice

Parks, see Fed. R. Crim. P. 52(a); United States v. Olana, 507 U.S.

725, 734-35 (1993), since the district court made clear that he

would impose the consecutive sentence even if he were free to make

the sentence concurrent. Where such an assurance is given by the

district judge and we have no reason to think otherwise, this is

enough. See United States v. Benedetti, 433 F.3d 111, 119 (1st

Cir. 2005).

Parks argues that the district judge (doubting his

ability to impose a concurrent sentence) could not fully have

considered the ordinary sentencing factors. 18 U.S.C. § 3584(b)

(incorporating by cross reference the list of factors prescribed by

section 3553(a)); United States v. Rogers, 521 F.3d 5, 10-11 (1st

Cir. 2008). But the district court shortened the consecutive

sentence he might otherwise have imposed on account of the

Massachusetts sentence, and his ultimate choice of a shortened but

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consecutive sentence came after a thoughtful description of Parks,

his crime and the very sentencing factors specified in the statute.

Parks also says that the sentence is substantively

unreasonable, because both the probation offense of failing to

update his registration in Massachusetts and the federal offense of

crossing into Maine but not registering in Maine arose from the

same course of conduct. But consecutive sentences are not uncommon

in such situations, and the default position under the guidelines

for Parks was a fully consecutive sentence. See U.S.S.G. § 5G1.3,

cmt. n.3(C). Anyway, the district court's specific choice to add

35 months for the federal offense was amply explained.

Parks had an extensive criminal record of 29 prior

convictions, including several crimes of a violent and sexual

nature. He was on probation at the time the offense occurred and

his stay in Maine was not a brief visit but an extended one. And

he disregarded an express warning to register in Maine. The

district court did not abuse his discretion and the sentence, being

within the guideline range, did not violate the so-called

"parsimony principle." United States v. Turbides-Leonardo, 468

F.3d 34, 41 (1st Cir. 2006), cert. denied, 551 U.S. 1170 (2007).

Affirmed.

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