United States v. Whitlow

United States Court of Appeals
For the First Circuit

No. 12-1448

UNITED STATES OF AMERICA,

Appellee,

v.

ALVIN WHITLOW,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Thompson, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Behzad Mirhashem, Federal Defender Office, District of New
Hampshire, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellant.

April 18, 2013

*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Alvin Whitlow, a convicted sex

offender, moved from the District of Columbia to Massachusetts in

2009 without complying with the Sex Offender Registration and

Notification Act (SORNA or the Act), 42 U.S.C. §§ 16901-16962. He

was then arrested and indicted for violating 18 U.S.C. § 2250(a),

which criminalizes a knowing failure to abide by SORNA's

registration requirements. Whitlow pled guilty, but has preserved

a number of arguments he first made in an unsuccessful motion to

dismiss the indictment, including that SORNA exceeds Congress's

constitutional authority, that it includes an unconstitutional

delegation of legislative power, and that no regulations have

validly applied SORNA to offenders whose convictions, like his own,

pre-date the Act. After careful consideration of these

contentions, we affirm.

I. Facts & Background

Because this appeal stems from a conviction via a guilty

plea, the following facts are drawn from the plea colloquy and

sentencing materials. See United States v. Cintrón-Echautegui, 604

F.3d 1, 2 (1st Cir. 2010). In 1988, Whitlow was convicted of

assault with intent to rape in the District of Columbia Superior

Court. He served a term of incarceration and was then paroled.

This conviction required him to register as a sex offender with the

District government. See D.C. Code §§ 22-4402, 22-4014. He last

registered in the District in 2009, after which he moved to

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Massachusetts without notifying the authorities in either

jurisdiction. In June 2010, Whitlow was apprehended in Cambridge,

Massachusetts. He admitted to knowingly failing to register as a

sex offender upon his arrival in the Commonwealth.

A grand jury subsequently returned an indictment charging

that Whitlow, "being a person required to register under [SORNA],

and having traveled in interstate commerce," violated 18 U.S.C.

§ 2250(a) by "knowingly fail[ing] to register and to update a

registration as required by [SORNA]." Whitlow moved to dismiss the

indictment, arguing that SORNA contained an unlawful delegation of

legislative power to the Attorney General, that the resulting

regulations were invalid, that his prosecution violated the

Constitution's Ex Post Facto Clause, and that SORNA and § 2250(a)

exceed Congress's constitutional powers. Most of Whitlow's

arguments were premised on the idea that SORNA did not, and could

not, apply to him because his predicate sex-offender conviction

predated the Act's passage. He acknowledged, however, that some of

his arguments appeared to be foreclosed by our precedents. The

district court agreed, denying the motion "in light of existing

First Circuit law." Whitlow then pled guilty, but preserved his

right to appeal the denial of his motion to dismiss the indictment.

He now exercises that right, renewing all of his arguments except

the Ex Post Facto Clause attack.

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 II. Analysis

SORNA was enacted in 2006 to establish a comprehensive

national system for the registration of sex offenders. 42 U.S.C.

§ 16901. To that end, the Act "requires those convicted of certain

sex crimes to provide state governments with (and to update)

information, such as names and current addresses, for inclusion on

state and federal sex offender registries." Reynolds v. United

States, 132 S. Ct. 975, 978 (2012). In turn, 18 U.S.C. § 2250(a)

"imposes criminal penalties when a person required to register as

a sex offender under SORNA knowingly fails to register after

traveling in interstate commerce." United States v. DiTomasso, 621

F.3d 17, 19-20 (1st Cir. 2010), cert. granted and judgment vacated,

132 S. Ct. 1533 (2012). The issue in this case is whether Whitlow,

whose predicate sex-offender conviction predates SORNA, was subject

to its registration requirements when he traveled to Massachusetts

in 2009 and then failed to register. If he was required to

register, his conviction under § 2250(a) was proper. See Carr v.

United States, 130 S. Ct. 2229, 2236 (2010).

In DiTomasso, we concluded that SORNA automatically

applied to pre-Act offenders upon enactment. 621 F.3d at 22-25.

The district court presumably had this ruling in mind when it

denied Whitlow's motion to dismiss "in light of existing First

Circuit law." But in Reynolds, decided after the district court's

decision, the Supreme Court held to the contrary, explaining that

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SORNA left it to the Attorney General to "specify" whether the Act

applied to sex offenders convicted before its passage. 132 S. Ct.

at 980-84; see 42 U.S.C. § 16913(d). Unless and until the Attorney

General did so, SORNA applied only prospectively. Reynolds, 132 S.

Ct. at 984. In light of Reynolds, the question here is whether, at

the time of Whitlow's travel and failure to register in 2009, the

Attorney General had issued valid regulations extending SORNA's

registration requirements to pre-Act offenders. We have not

previously considered this question because of our pre-Reynolds

view that SORNA was automatically retroactive. United States v.

Parks, 698 F.3d 1, 4 (1st Cir. 2012).1

The Attorney General has produced three sets of

regulations that arguably applied SORNA to pre-Act offenders: the

"Interim Rule" in February 2007, Applicability of the Sex Offender

Registration and Notification Act, 72 Fed. Reg. 8,894 (Feb. 28,

2007); the "SMART Guidelines" in July 2008, The National Guidelines

for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030

(July 2, 2008); and the "Final Rule" in December 2010,

Applicability of the Sex Offender Registration and Notification

Act, 75 Fed. Reg. 81,849 (Dec. 29, 2010). The government does not

argue that the 2010 Final Rule, which postdates Whitlow's travel

1
For convenience, we sometimes use "retroactivity" to
refer to SORNA's applicability to pre-Act offenders. We do not
mean to imply that SORNA criminalizes travel that occurred before
its enactment. See Carr, 130 S. Ct. at 2233 ("Liability under
§ 2250 . . . cannot be predicated on pre-SORNA travel.").

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and arrest, could have applied to him. Instead, the government

says that either the Interim Rule or the SMART Guidelines (or both)

had validly extended SORNA to pre-Act offenders by the time Whitlow

failed to register in 2009.

Before we discuss any of these regulations individually,

we briefly address Whitlow's two broader arguments. First, Whitlow

contends that none of the regulations are valid because SORNA's

delegation to the Attorney General of the power to specify whether

the Act is retroactive violates the constitutional non-delegation

doctrine. See Reynolds, 132 S. Ct. at 986-87 (Scalia, J.,

dissenting) (raising this issue). Second, he argues that SORNA's

registration scheme is itself unconstitutional because it exceeds

Congress's enumerated Article I powers. See United States v.

Morrison, 529 U.S. 598, 607 (2000). But, as Whitlow acknowledges,

we have already rejected both of these contentions. See Parks, 698

F.3d at 6-8 (addressing Commerce Clause and non-delegation doctrine

arguments); DiTomasso, 621 F.3d at 26 & n.8 (addressing Commerce

Clause and Necessary and Proper Clause challenges).2 These prior

decisions are binding on us. United States v. Troy, 618 F.3d 27,

2
We note that the Supreme Court recently granted
certiorari to consider the Fifth Circuit's en banc holding that
SORNA exceeds Congress's Article I powers when applied to a pre-Act
offender who, having been unconditionally released from federal
custody, failed to register after an intrastate relocation. See
United States v. Kebodeaux, 687 F.3d 232, 253 (5th Cir. 2012) (en
banc), cert. granted, 133 S. Ct. 928 (2013). Because this case
involves interstate travel (among other factual differences), it
does not raise the same issues.

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35 (1st Cir. 2010). Accordingly, we turn to Whitlow's more focused

attacks on the Attorney General's regulations.

Whitlow's challenge to the February 2007 Interim Rule is

based on the premise that the rule was promulgated without the

notice-and-comment procedures required by the Administrative

Procedure Act (APA), see 5 U.S.C. § 553, and without good cause for

that lapse, see id. § 553(b)(3)(B). A number of other circuits

have taken differing views on whether the Attorney General had good

cause to skip the APA-mandated procedures in producing the Interim

Rule, and on whether it matters (which may depend in part on the

precise timing of the offense at issue). Compare, e.g., United

States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009) (good cause),

and United States v. Johnson, 632 F.3d 912, 928-33 (5th Cir. 2011)

(no good cause, but error was harmless), with United States v.

Reynolds, ___ F.3d ___, 2013 WL 979058, at *7-20 (3d Cir. Mar. 14,

2013) (no good cause, and error was prejudicial), and United States

v. Utesch, 596 F.3d 302, 310, 312-13 (6th Cir. 2010) (same). Here,

though, Whitlow's interstate travel and failure to register

occurred in 2009, after both the Interim Rule and the SMART

Guidelines had been issued. Thus, if the SMART Guidelines had

properly extended SORNA to pre-Act offenders by the time of

Whitlow's offense, the Interim Rule's validity is beside the point.

See United States v. Mattix, 694 F.3d 1082, 1083-85 (9th Cir. 2012)

(per curiam); United States v. Stevenson, 676 F.3d 557, 561-62 (6th

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Cir. 2012). We therefore bypass the Interim Rule and turn to the

SMART Guidelines.

The SMART Guidelines did go through the notice-and-

comment process. They were published in proposed form on May 30,

2007, see 72 Fed. Reg. 30,210, and in final form on July 2, 2008,

see 73 Fed. Reg. 38,030. They became effective on August 1, 2008.

Stevenson, 676 F.3d at 566. The final Guidelines "provide guidance

and assistance to the states and other jurisdictions in

incorporating the SORNA requirements into their sex offender

registration and notification programs." 73 Fed. Reg. at 38,030.

The Guidelines address a number of issues, including "the sex

offenders required to register under SORNA and the registration and

notification requirements they are subject to." Id. On the

question of retroactivity, the final Guidelines provide:

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 (citing 28 C.F.R. § 72.3; 72 Fed. Reg. 8,894,

8895-96). The government says that this language plainly

establishes SORNA's applicability to pre-Act offenders like

Whitlow.

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 Whitlow makes three responses. First, he contends that

the Attorney General issued the SMART Guidelines not under the

authority to "specify" retroactivity conferred by 42 U.S.C.

§ 16913(d) and discussed in Reynolds, but instead under 42 U.S.C.

§ 16912(b), which instructs the Attorney General to "issue

guidelines and regulations to interpret and implement this

subchapter," i.e., SORNA. See 72 Fed. Reg. at 30,210 (stating that

the proposed Guidelines "carry out" § 16912(b)'s interpret-and-

implement directive). Thus, he says, the Guidelines could not

validly determine retroactivity. This argument is apparently based

on the APA's requirement that an agency's notice of proposed

rulemaking "include . . . reference to the legal authority under

which the rule is proposed." 5 U.S.C. § 553(b)(2); see Georgetown

Univ. Hosp. v. Bowen, 821 F.2d 750, 759 (D.C. Cir. 1987), aff'd,

488 U.S. 204 (1988); 32 Charles Alan Wright & Charles H. Koch, Jr.,

Federal Practice & Procedure: Judicial Review § 8173, at 204 (1st

ed. 2006). While we agree that compliance with this requirement is

important, we do not agree that the SMART Guidelines run afoul of

it.

To begin with, we do not believe that there was even a

technical violation of § 553(b)(2) here. Whitlow is right that the

proposed Guidelines identified § 16912(b), and not § 16913(d), as

the source of the Attorney General's authority to issue the

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Guidelines.3 But § 16912(b)'s interpret-and-implement authority

appears to subsume the narrower power to make retroactivity

determinations, because the "subchapter" that § 16912(b) tells the

Attorney General to "implement" (i.e., SORNA itself) includes

§ 16913(d), the retroactivity provision. See 42 U.S.C., ch. 151,

subch. I. As the Sixth Circuit put it, "we 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." Stevenson, 676 F.3d at 564. To

be sure, "[b]est practices may include citing all relevant sections

of an enabling statute," id. at 565, but it appears that the

Attorney General actually did identify a statutory provision that

gave him the power to issue a rule on retroactivity, which is what

§ 553(b)(2) required here.4

Having said that, we can imagine a scenario in which the

invocation of a broad enabling statute that technically encompasses

3
The government points out that the proposed Guidelines
did cite § 16913(d) in discussing retroactivity and the Interim
Rule, see 72 Fed. Reg. at 30,212, but § 553(b)(2) requires that the
source of the issuing agency's authority be invoked as such, not
that it merely be mentioned in passing. Cf. Nat'l Tour Brokers
Ass'n v. United States, 591 F.2d 896, 900 (D.C. Cir. 1978).
4
There is no merit to Whitlow's suggestion that the SMART
Guidelines themselves recognize that § 16912(b) "is an
inappropriate mechanism[] for imposing" retroactivity. The
language he relies on simply rejects the premise that the Attorney
General should eschew retroactivity because SORNA was a bad idea in
the first place. 73 Fed. Reg. at 38,031; see Stevenson, 676 F.3d
at 565 n.7.

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a more specific authority might leave the public unclear as to the

ostensible basis and scope of the agency's authority, thus

frustrating the purpose of § 553(b)(2). But this is not such a

case. Ultimately, § 553(b)(2) functions to ensure that the agency

considers whether it actually has the authority to make the rule it

is proposing, and to give interested parties a chance to comment on

that question. See Koretoff v. Vilsack, 707 F.3d 394, 398 (D.C.

Cir. 2013); ConocoPhillips Co. v. EPA, 612 F.3d 822, 833 (5th Cir.

2010). Here, we see no reason -- and Whitlow offers none -- why

the proposed Guidelines' invocation of § 16912(b) and their

discussion of retroactivity would not have placed interested

parties on notice of the Attorney General's intent and enabled them

to offer comment and argument about his authority to issue the

Guidelines as proposed. Cf. ConocoPhillips Co., 612 F.3d at 834.

Indeed, the final Guidelines reflect that the Attorney General did

receive and consider comments about SORNA's retroactivity. 73 Fed.

Reg. at 38,031. Consequently, we think the notice complied with

both the letter and the spirit of § 553(b)(2).

That brings us to Whitlow's second attack on the SMART

Guidelines: that they did not validly extend SORNA to pre-Act

offenders because they "assumed" retroactivity rather than

"established" it. The notion is that the proposed Guidelines

simply restated the Attorney General's belief that the Interim Rule

had already extended the law to pre-Act offenders. See 72 Fed.

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Reg. at 30,212 ("SORNA's requirements apply to all sex offenders,

including those whose convictions predate the enactment of the Act.

The Attorney General has so provided in [the Interim Rule]

. . . ."). Thus, says Whitlow, the proposed Guidelines deprived

interested parties of the opportunity to comment on retroactivity

by treating it as a settled question. Though ably advanced, this

argument does not persuade us.

Where an agency is accused of failing to provide adequate

notice of the substance of the rules it is formulating, see

5 U.S.C. § 553(b)(3), "[t]he essential inquiry is whether the

commenters have had a fair opportunity to present their views on

the contents of the final plan. We must be satisfied . . . that

given a new opportunity to comment, commenters would not have their

first occasion to offer new and different criticisms." Natural

Res. Def. Council, Inc. v. EPA, 824 F.2d 1258, 1283 (1st Cir. 1987)

(quoting BASF Wyandotte Corp. v. Costle, 598 F.2d 637, 642 (1st

Cir. 1979)). This question "always requires careful consideration

on a case-by-case basis." Id. (quoting BASF Wyandotte, 598 F.2d at

642). The essential requirement "is one of fair notice." Long

Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).

Here, we are satisfied that would-be commenters had the

requisite opportunity. Given that the notice of proposed

rulemaking specifically discussed retroactivity, and that the SMART

Guidelines were intended to create a comprehensive regime that

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could supplement or displace the Interim Rule, it was natural for

interested parties to understand that they could and should offer

input on retroactivity. Cf. Int'l Union, United Mine Workers of

Am. v. Mine Safety & Health Admin., 626 F.3d 84, 94 (D.C. Cir.

2010) (notice was adequate "if interested parties should have

anticipated that the [resulting] change was possible" (citation

omitted)). And, as noted above, the final Guidelines reflect that

the Attorney General did receive comments on retroactivity, 73 Fed.

Reg. at 38,035–36, and considered "the substantive merits" thereof,

Stevenson, 676 F.3d at 565 n.7; see also 75 Fed. Reg. at 81,850

(noting that the comments received about retroactivity in response

to the proposed Guidelines were similar to the comments received

about the Interim Rule). On this record, it would not constitute

a bait-and-switch to hold that the SMART Guidelines validly

extended SORNA to pre-Act offenders. See Stevenson, 676 F.3d at

565; United States v. Mahoney, No. 11-CR-06-JL, 2013 WL 132460, at

*5-6 (D.N.H. Jan. 9, 2013).

Finally, Whitlow argues that the SMART Guidelines "tie

retroactivity to SORNA implementation by a particular jurisdiction,

and thus did not make SORNA retroactively applicable in

jurisdictions that had not yet implemented SORNA," including

Massachusetts circa 2009. He relies, however, on language

addressing the implementing jurisdictions' obligations, not those

of covered offenders. See 73 Fed. Reg. at 38,063-64. Indeed, a

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number of other circuits have recognized that the passage in

question "addresses the state's obligations to register sex

offenders, not the sex offender's obligation to register with the

state, a duty which is separate and independent . . . from the

state's duty to implement SORNA." United States v. Trent, 654 F.3d

574, 587 (6th Cir. 2011); see, e.g., United States v. Guzman, 591

F.3d 83, 94 (2d Cir. 2010) ("[T]he Attorney General has specified

that an offender's obligation to register is not contingent on any

jurisdiction's implementation of SORNA."); Gould, 568 F.3d at

463-64 (holding that SORNA's "requirements to register and maintain

registration are not expressly conditioned on a State's

implementation of the Act"); see also 75 Fed. Reg. at 81,850

(distinguishing between SORNA's immediately applicable offender-

registration requirements and the separate jurisdictional-

implementation standards). We agree.

Having determined that the SMART Guidelines are valid and

do not condition retroactivity on the jurisdiction's implementation

of SORNA, we conclude that Whitlow was subject to SORNA's

registration requirements when he moved from the District of

Columbia to Massachusetts in 2009 and then failed to register as a

sex offender in Massachusetts. See Mass. Gen. Laws ch. 6, §§ 178C-

178Q. Consequently, he was properly subject to criminal liability

under § 2250(a) for failing to satisfy those requirements.

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 III. Conclusion

For the foregoing reasons, we affirm the denial of

Whitlow's motion to dismiss the indictment.

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