United States v. Cain

GRIFFIN, Circuit Judge,

dissenting.

The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (2006), was signed into law on July 27, 2006, by President George W. Bush and given immediate effect. Title 1 of the Walsh Act is the Sex Offender Registration and Notification Act, commonly referred to as “SORNA,” which creates a federal felony for the interstate travel of convicted sex offenders subject to the Act who knowingly fail to register or update their registrations, 18 U.S.C. § 2250. The declared Congressional purpose of SOR-NA is broad:

In order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against the victims listed below, Congress in this chapter establishes a comprehensive national system for the registration of those offenders.

42 U.S.C. § 16901. Section 16911(1) of SORNA defines “sex offender” in the past tense: “The term ‘sex offender’ means an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1) (emphasis added).

Defendant Marcus Cain is a sex offender based on his 1998 Ohio conviction for attempted rape. As a convicted sex offender, Cain was required by Ohio law to register with the State for a period of ten years and to verify annually his current address. He complied until July 2006, when Cain notified his parole officer that he was moving to Georgia. Because of his proposed change of address, Cain was instructed to register in Georgia and also to notify the Summit County, Ohio, sheriffs office of his intent to move. He did neither. His last contact with the Ohio parole officer was on September 18, 2006. Thereafter, Cain *425moved to Georgia and did not appear at an October 16, 2006, scheduled registration in Ohio. In March 2007, he was arrested in Georgia on a warrant from Summit County and charged with failure to verify his current address. The state case was dismissed, but Cain was subsequently indicted by a federal grand jury for failing to comply with SORNA’s sex offender registration requirements. Cain conditionally pled guilty to violating 18 U.S.C. § 2250 by traveling in interstate commerce “from on or about October 16, 2006, through on or about March 28, 2007” but failing to update his previous sex offender registration. In his plea agreement, Cain reserved the right to appeal the district court’s denial of his motion to dismiss the indictment. This appeal ensued.

The majority holds that Cain was not subject to SORNA’s requirements during the period set forth in the indictment and, therefore, his conviction must be reversed. I disagree and respectfully dissent. The majority’s construction of SORNA is inconsistent with the language of the statute when viewed in context. I would hold that SORNA applies to Cain, a pre-SORNA registered sex offender whose SORNA violation indisputably occurred after the effective date of the Act, July 27, 2006. Accordingly, I would affirm his conviction.

I.

The first issue regards the registry requirement for sex offenders set forth in 42 U.S.C. § 16913. This section of SORNA provides, in full, the following:

§ 16913. Registry requirements for sex offenders
(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.
(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) of this section 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 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.
(e) State penalty for failure to comply
*426Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.

(Emphasis added.)

II.

Recently, in Thompson v. North Am. Stainless, LP, 567 F.3d 804, 807 (6th Cir. 2009) (en banc), we set forth the following fundamental principles of statutory construction:

When we, in turn, are called upon to review and interpret Congress’s legislation, “[i]t is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms.” Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917). “If the words are plain, they give meaning to the act, and it is neither the duty nor the privilege of the courts to enter speculative fields in search of a different meaning.” Id. at 490, 37 S.Ct. 192. Recognizing the consequences of unbridled judicial forays into the legislative sphere, the Supreme Court has admonished “ ‘time and again that a legislature says in a statute what it means and means in a statute what it says there.’ ” Arlington Cent. Sch. Dist. Bd. of Ed. v. Murphy, 548 U.S. 291, 296, 126 S.Ct. 2455, 165 L.Ed.2d 526 (2006) (quoting Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)). Accordingly, “[w]hen the statutory language is plain, the sole function of the courts — at least where the disposition required by the text is not absurd — is to enforce it according to its terms.” Id. (internal citations and quotation marks omitted). See also Robinson v. Shell Oil Co., 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (“[The courts’] inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.”) (internal citation and quotation marks omitted); Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) (“When we find the terms of a statute unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances.”).

Statutory construction is a “holistic endeavor” based upon the text of the entire statute. As the Supreme Court explained in United Savings Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988):

[V]iewed in the isolated context of § 362(d)(1), the phrase could reasonably be given the meaning petitioner asserts. Statutory construction, however, is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme — because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.

Id. at 371, 108 S.Ct. 626 (citations omitted).

III.

On February 28, 2007, seven months after SORNA was enacted, the Attorney General issued an interim rule determining that “[t]he requirements of the Sex Offender Registration and Notification Act apply to all sex offenders, including sex offenders convicted of the offense for *427which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3 (2007).

Section § 16913 of SORNA, particularly subsection (d), has opened a judicial Pandora’s Box. Since SORNA was enacted, litigation regarding its construction, constitutionality and retroactive application has proliferated — without a consistent mandate from the courts. As one court has aptly observed, “[t]he courts cannot agree on the meaning of § 16913, or even whether it is ambiguous.” United States v. Zuniga, No. 4:07CR3156, 2008 WL 2184118, at *10 (D.Neb. May 23, 2008) (unpublished). As a result, a body of case law has developed that is comprised of irreconcilable interpretations of § 16913: “Some courts have held that SORNA is retroactive as of its effective date for defendants convicted of a sex offense before the effective date and already required to register when moving to another state[;] ... other courts have interpreted this provision to mean that SORNA could not be applied retroactively to those convicted of sex offenses before its enactment until after the Attorney General issued a ruling to that effect (which was done on February 28, 2007)[;][and] some courts have held that SORNA’s criminal sanctions applied to those who traveled in interstate commerce before the effective date of SORNA, while others held that they did not.” See Tracy Bateman Farrell, Annotation, Validity, Construction, and Application of Federal Sex Offender Registration and Notification Act (SORNA), J)2 U.S.C. §§ 16901 et seq., its Enforcement Provision, 18 U.S.C.A. § 2250, and Associated Regulations, 30 A.L.R. Fed. 2d 213, § 2 (2008) (collecting SORNA-related decisions).

In the present case, the majority holds that the Adam Walsh Child Protection and Safety Act and its SORNA provision affords previously convicted sex offenders a grace period to travel in interstate commerce without registering as sex offenders or updating their registration until such time as the Attorney General promulgates valid rules under the Act. The majority’s specific holding is as follows:

SORNA requires the Attorney General to issue regulations specifying its application before a sex offender convicted before its enactment may be subjected to criminal prosecution for failure to keep his registration current. Because the Attorney General did not issue such a regulation in compliance with the notice and comment and publication requirements of the APA within the time period charged in Cain’s indictment, the indictment must be dismissed.

I disagree and would hold that, in regard to the obligations of registered sex offenders whose convictions pre-date SOR-NA, the requirements of the statute were immediately effective upon the date of its enactment.

Without citation to authority, the majority concludes that the first clause of § 16913(d) “requires ” the Attorney General to promulgate rules pertaining to sex offenders who were convicted before the effective date of the Act. The majority relies on the “shall have the authority ” language of subsection (d). In my view, the “shall have the authority” language is clearly permissive, not mandatory. Congress knows how to mandate the promulgation of rules and regulations and, in fact, did so in the previous section of SORNA, which provides:

§ 16912. Registry requirements for jurisdictions
(a) Jurisdiction to maintain a registry
Each jurisdiction shall maintain a jurisdiction-wide sex offender registry conforming to the requirements of this subchapter.
(B) Guidelines and regulations
*428The Attorney General shall issue guidelines and regulations to interpret and implement this subchapter.

42 U.S.C. § 16912 (emphasis added).1

In contrast to § 16912(b), the language of § 16913(d) is not that the Attorney General “shall issue,” but rather “shall have the authority.”2 Having the power or authority to act does not require the exercise of such authority. The United States properly recognizes this distinction in its appellate brief: “Furthermore, the express language of the statute [§ 16913(d) ] did not require the Attorney General to act but simply gave him the authority to do so.” This interpretation of SORNA conforms to the view adopted by all courts that have construed similar language.

For instance, in NLRB v. Barrett Co., 120 F.2d 583 (7th Cir.1941), the Court of Appeals for the Seventh Circuit held that Section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b), which provides that when an unfair labor practice is charged the National Labor Relations Board “shall have power to issue” a complaint, is discretionary, not mandatory:

Section 10(b) does not require the Board to issue a complaint. It expressly provides that the Board “shall have power to issue and caused to be served * * * a complaint stating the charges in that respect * * *.” “Power to issue” is different from “shall issue.” The difference is important. In one the Board’s duty is mandatory. It has no discretion. In the other, the Board has a discretion — it acts judicially. It is in the exercise of this discretionary power, that investigation becomes necessary. The power to investigate is a necessary power, which is incidental to the exercise of the power to issue a complaint.

Barrett Co., 120 F.2d at 586.

Similarly, in Kennedy v. Block, 606 F.Supp. 1397 (W.D.Va.1985), vacated on other grounds, 784 F.2d 1220 (4th Cir. 1986), the court held that Section 510(g) of the National Housing Act of 1949, as amended, 42 U.S.C. § 1480(g), governing the termination of subsidized housing assistance, did not require the Farmers Home Administration (“FmHA”) to follow certain procedures in the course of an eviction:

The court must look initially to the language of the statute to determine whether Congress intended the requirements of 42 U.S.C. § 1480(g) to be mandatory. The statute is worded as follows: “In carrying out the provisions of this sub-chapter, the Secretary shall have the power to — (g) issue rules and regulations [providing procedural safeguards to tenants facing eviction].... ” 42 U.S.C. § 1480(g) (emphasis added). The statute is not in the mandatory language which would substantiate a claim that Congress meant to require FmHA to implement the contents of paragraph (g). Instead the language represents only a grant of rulemaking *429authority to FmHA. Congress, by using the language “shall have the power to issue,” was committing to the agency the final decision of whether such provisions were necessary and appropriate, and if so, the authority to devise a procedure to implement the provisions.

Kennedy, 606 F.Supp. at 1406.3

In Prosper Indep. Sch. Dist. v. Collin County Sch. Trs., 51 S.W.2d 748 (Tex.Civ. App.1932), the Texas Court of Civil Appeals held that a state statute providing that “the County Board of Trustees shall have the authority ... to detach from and annex to any school district territory contiguous to the common boundary line of the two districts” was discretionary, not mandatory:

Generally, the lodging of authority in any designated board or forum carries with it the right of such board or forum to determine whether a proper case has arisen for the exercise of such power. So, in the instant case, we think the county school board is vested with a discretion to determine whether the power given it by [the statute] shall be exercised in any given case.

Prosper Indep. Sch. Dist., 51 S.W.2d at 751.

The Supreme Court of Tennessee, in Consumer Advocate Div. v. Greer, 967 S.W.2d 759 (Tenn.1998), adopted a similar viewpoint when it held that a state statute providing that the Tennessee Regulatory Authority (“TRA”) “shall have the power” to hear and determine whether a public utility rate change is just and reasonable did not impose a mandatory duty on the TRA to convene a contested case hearing upon the filing of a complaint:

In our view, the clear import of the statutory language, “the authority shall have the power,” is that the TRA has the power to convene a contested case hearing if it chooses to exercise the authority. In other words, the language used by the General Assembly implies discretion. Importantly, the statute does not say that the TRA “shall hold a hearing” upon the filing of a written complaint. Such language would clearly describe a mandatory duty. Once again, our role is to construe statutes consistently with legislative intent. If the Legislature had intended to mandate a contested hearing upon the filing of a written complaint, it easily could have utilized precise language to accomplish that mandate. Indeed, in other portions of the statutory scheme governing the TRA, the Legislature has employed such mandatory language requiring the TRA to convene a contested hearing. See e.g. Tenn.Code Ann. § 65-5-209(c) (1997 Supp.) (“the authority shall initiate a contested, evidentiary proceeding to establish initial rates on which the price regulation plan is based”) (emphasis added); Tenn.Code Ann. § 65-5-209(d) (1997 Supp.) (“the authority shall, upon petition of the competing telecommunications services provider, hold a contested case proceeding.”) (emphasis added). The absence of mandatory words in Tenn.Code Ann. § 65-5-203(a), indicates an intentional legislative choice. State v. Harkins, 811 S.W.2d 79, 82 (Tenn. 1991).

Greer, 967 S.W.2d at 763.

Numerous other courts have likewise recognized the important distinction between the discretionary phrase “shall have the authority/power” and the mandatory directive “shall.” See Pac. Lighting Serv. Co. v. Fed. Power Comm.’n, 518 F.2d 718, 720 (9th Cir.1975) (holding that a provision *430of the Natural Gas Act, providing that upon the filing of a new tariff schedule the Federal Power Commission “shall have authority” to hold a hearing on the lawfulness of the rate, makes the holding of hearings discretionary rather than mandatory); Weller v. United States, 41 Ct.Cl. 324, 1906 WL 883, at *13 (CLCL1906) (holding that 34 U.S.C. § 1061 providing that “the Secretary of the Navy shall have power to convene general courts-martial for the trial of naval cadets” was not mandatory and did not prevent the President from dismissing cadets or midshipmen without trial by court-martial); Nimmer v. Strickland, 242 Ga. 430, 249 S.E.2d 233, 234 (1978) (construing statute providing that the state “shall have authority” to proceed directly against purchasers of portable tobacco-curing barns for unpaid sales tax as permissive and not mandatory); State v. Beard, 63 Ohio App. 486, 27 N.E.2d 184, 185-86 (1939) (concluding that a statute providing that “the court shall have power to commit the defendant to a local insane hospital” for observation during a sanity determination proceeding conferred discretionary rather than mandatory power to order observation); State ex rel. Toledo v. Lynch, 88 Ohio St. 71, 102 N.E. 670, 675 (1913) (Wilkin, J., concurring), overruled in part on other grounds, Village of Perrysburg v. Ridgway, 108 Ohio St. 245, 140 N.E. 595 (1923) (commenting upon a provision in the state constitution and noting that “[o]ne thing is certain. It is not mandatory. By the structure of its language, it is permissive only: ‘Municipalities shall have authority to exercise all the powers of local self-government.’ This is not the equivalent to saying they must or shall exercise, etc.”).

Thus, in the present case, the majority’s premise that § 16913(d) “requires” — as a condition precedent — that the Attorney General issue regulations regarding SOR-NA’s applicability to pre-SORNA sex offenders before the statute becomes effective as to those offenders is contrary to law and inconsistent with the text of SOR-NA.

Reading SORNA as a whole, I agree with Judge Shedd who, in his well-reasoned dissent in United States v. Hatcher, 560 F.3d 222 (4th Cir.2009) (Shedd, J., dissenting), concluded that

it becomes clear that subsection (d) does not exempt the Defendants [sex offenders whose convictions predated SORNA] from SORNA’s reach pending a determination by the Attorney General.
Section 16913(a) states in relevant part that “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA defines a “sex offender” as “an individual who was convicted of a sex offense,” id. § 16911, and there is no dispute that the Defendants are “sex offenders” within the meaning of § 16913(a) because they were all convicted of sex offenses under state law between 1993 and 2001. Therefore, under the plain terms of § 16913(a), SORNA requires the Defendants to register and keep their registrations current.
Moreover, § 16913(a)’s command is absolute. It contains no exceptions for persons who were convicted of sex offenses before SORNA’s enactment. Similarly, § 16913(b) states that all sex offenders “shall initially register,” and it contains no exception for sex offenders whose convictions predate SORNA. The same is also true of § 16913(c). It directs sex offenders to keep their registrations current, and makes no distinction between sex offenders who were *431convicted of sex offenses before or after SORNA’s enactment.
Moreover, SORNA “establishes a comprehensive national system for the registration” of sex offenders, 42 U.S.C. § 16901 (emphasis added), and numerous other statutory provisions confirm SORNA’s “comprehensive” nature. For example, SORNA requires every state to maintain a statewide sex offender registry conforming to SORNA’s national requirements. Id. § 16912. In other sections, SORNA requires the Attorney General to maintain a “national database” “for each sex offender,” id. § 16919(a) (emphasis added), and a “National Sex Offender Public Website,” which “shall include relevant information for each sex offender,” id. § 16920 (emphasis added).
In addition, SORNA defines the term “sex offender” as an individual who “was convicted of a sex offense.” Id. § 16911 (emphasis added). By using the verb “was,” SORNA expressly sweeps persons who were convicted of sex offenses prior to SORNA’s enactment within the statute’s scope and thus indicates that the statute is not purely prospective in nature, applying only to persons whose sex offenses postdate SORNA’S enactment.
Therefore, subsection (d)’s context makes it clear that the provision should be read in light of at least three primary guideposts: first, SORNA establishes a “comprehensive” system for the registration of sex offenders; second, subsections (a)-(c) require sex offenders to register, without exception; and third, SORNA defines sex offenders as persons who were convicted of sex offenses prior to SORNA’s enactment. Reading subsection (d) against this backdrop, I conclude that subsection (d) is unambiguous and does not operate to negate SORNA’s coverage of all sex offenders — coverage which is established in subsections (a)(c). Understood in context, subsection (d) merely authorizes the Attorney General to exempt persons with sex offenses that predate July 27, 2006, from SORNA’s reach. In other words, the Attorney General could declare that SORNA is inapplicable to certain persons.
Further, there is simply nothing in the word “applicability” itself which suggests any determination by the Attorney General must be prospective only. The language certainly allows the Attorney General to determine that no pre-SORNA sex offenders are exempt and that SORNA continues to apply to them. Indeed, that is what the Attorney General did by adopting the Interim Rules. Therefore, unless the Attorney General were to exercise his authority to exempt a sex offender from SORNA’s reach, SORNA applies to all sex offenders ... regardless of the date of their convictions ....

560 F.3d at 232-33 (citations and footnotes omitted). Cf. United States v. Hinckley, 550 F.3d 926, 929-35 (10th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); and United States v. May, 535 F.3d 912, 916-19 (8th Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009) (both cases holding that SORNA applies immediately to sex offenders registered under state law prior to SORNA’s enactment and that the Attorney General was authorized under § 16913(d) to create rules applicable only to those sex offenders who were unable to comply with the initial registration requirements of SORNA).

In the interim rule, the Attorney General declared that “[t]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the of*432fense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3 (2007). The May court stated accurately that “[t]he Attorney General did not believe a rule was even needed to confirm SORNA’s applicability to [preSORNA registered sex offenders]” but “only promulgated the rule as a precautionary measure” as evidenced by the official statement accompanying the interim rule. May, 535 F.3d at 919 (citing Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8896 (February 28 , 2007)). In that statement, the Attorney General explained:

SORNA directly imposes registration obligations on sex offenders as a matter of federal law and provides for federal enforcement of these obligations under circumstances supporting federal jurisdiction. These obligations include registration, and keeping the registration current, in each jurisdiction in which a sex offender resides, is an employee, or is a student, with related provisions concerning such matters as the time for registration, the information to be provided by the registrant, and keeping the information up to date. See 42 U.S.C. 16913-16917, enacted by SORNA §§ 113-17.
As in the Wetterling Act provisions (42 U.S.C. 14071) that preceded SORNA, Congress recognized in SORNA that supplementation of the statutory text by administrative guidance and rules would be helpful, and in some contexts necessary, to fully realize the legislation’s objectives. Section 112(b) of SORNA accordingly directs the Attorney General to issue guidelines and regulations to interpret and implement SORNA. In addition, there are provisions in SORNA that identify specific contexts in which clarification or supplementation of the statutory provisions by the Attorney General is contemplated.
One of these specific contexts appears in section 113(d) of SORNA, which states that “[t]he Attorney General shall have the authority to specify the applicability of the requirements of this title to sex offenders convicted before 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).” 42 U.S.C. 16913(d). (The cross-referenced “subsection (b)” states the normal timing rules for initial registration by sex offenders — before release for imprisoned offenders, and within three business days of sentencing for offenders not sentenced to imprisonment.) Section 113(d) ensures that there will be a means to resolve issues about the scope of SOR-NA’s applicability, including any questions that may arise concerning the retroactive applicability of its requirements to sex offenders convicted prior to its enactment, and a means to fill any gaps there may be concerning registration procedures or requirements for sex offenders to whom the Act’s normal procedures cannot be applied.
The purpose of this interim rule is not to address the full range of matters that are within the Attorney General’s authority under section 113(d), much less to carry out the direction to the Attorney General in section 112(b) to issue guidelines and regulations to interpret and implement SORNA as a whole. The Attorney General will 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 FR 572 (Jan. 5, *4331999), and may also issue additional regulations as warranted.
The current rulemaking 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. This issue is of fundamental importance to the initial operation of SORNA, and to its practical scope for many years, since it determines the applicability of SORNA’s requirements to virtually the entire existing sex offender population.
Considered facially, SORNA requires all sex offenders who were convicted of sex offenses in its registration categories to register in relevant jurisdictions, ivith no exception for sex offenders whose convictions predate the enactment of SORNA ....
Nevertheless, sex offenders with predicate convictions predating SORNA who do not wish to be subject to the SORNA registration requirements, or who wish to avoid being held to account for having violated those requirements, have not been barred from attempting to devise arguments that SORNA is inapplicable to them, e.g., because a rule confirming SORNA’s applicability has not been issued. This rule forecloses such claims by making it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted. The Attorney General exercises his authority under section 113(d) of SORNA to specify this scope of application for SORNA, regardless of whether SORNA would apply with such scope absent this rule, in order to ensure the effective protection of the public from sex offenders through a comprehensive national system for the registration of such offenders.

72 Fed.Reg. at 8895-96 (emphasis added).

I agree with the Attorney General that the interim regulation was not necessary because SORNA facially applies to sex offenders convicted before July 27, 2006. Absent action by the Attorney General, the general rule of 42 U.S.C. § 16913(a) requires all sex offenders to register and maintain current registration. Because subsection (d) provides an exception to the general rule, the Attorney General was not required to act. Nonetheless, he did so to eliminate any uncertainty or ambiguity.

“It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment.” Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 112 L.Ed.2d 919 (1991) (citations omitted). The majority’s holding contradicts this rule by establishing an artificial and problematic “gap period” before SORNA becomes effective.

For these reasons, I respectfully dissent from the majority’s holding that SORNA’s requirements for the registration and updating of registrations by sex offenders convicted before July 27, 2006, were ineffective until the Attorney General acted to promulgate valid regulations. The majority has read language into SORNA which simply does not exist.

Because Cain already was a registered sex offender under existing Ohio law when SORNA was enacted, he was subject to SORNA and required to keep his registration current on and after July 27, 2006. His undisputed failure to comply with SORNA after its effective date thus requires affirmance of the district court’s judgment.

IV.

Assuming arguendo that, as the majority posits, SORNA’s application to preSOR*434NA registered sex offenders was not established until the Attorney General issued his interim rule, I disagree with the majority’s additional holding that the Attorney General failed to demonstrate good cause to issue his interim regulations without the thirty-day notice and comment customarily required by the Administrative Procedures Act (the “APA”).4

Recently, in United States v. Hernandez, 615 F. Supp 2d 601 (E.D.Mich.2009), the district court rejected an identical APA claim involving SORNA after citing the weight of authority on this issue and finding that the “public interest” of safety demonstrated “good cause”:

Defendant further attacks the applicability of the SORNA registration requirements to pre-SORNA convictions by arguing that the Attorney General’s Interim Rule, 28 C.F.R. § 72.3, which set forth retroactive registration requirements for pre-SORNA convictions, violated the Administrative Procedures Act (“APA”), 5 U.S.C. § 553. The APA requires that all rules must either comply with a 30-day notice and comment period or have “good cause” to forego the notice and comment period. 5 U.S.C. § 553. The Attorney General did not provide the usual 30-day notice and comment period for 28 C.F.R. § 72.3, but enacted the Interim Rule effective immediately under the “good cause” exception.
The APA permits agencies to enact rules without the 30-day notice and comment period for “good cause” where “notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). The Justice Department did comply with the APA requirement of incorporating the finding of good cause and a summary of the good cause justification within the interim rule. Id. Specifically, the Justice Department included the following language in the interim rule:
*435The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act’s requirements — and related means of enforcement, including criminal liability under 18 U.S.C. § 2250 for sex offenders who knowingly fail to register as required — to sex offenders whose predicate convictions predate the enactment of SOR-NA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of “protect[ing] the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act’s registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.
SORNA Interim Rule, 72 Fed.Reg. 8894.
Defendant argues that the reasons articulated by the Justice Department are legally insufficient to justify a “good cause” exception to enable the Justice Department to avoid the notice and comment requirement. Citing Buschmann v. Schweiker, 676 F.2d 352, 357 (9th Cir.1982), Defendant contends that the “good cause” exception is an “emergency procedure” and should only be allowed when “delay would do real harm.” Defendant’s argument is not supported by the applicable case law.
Numerous courts addressing the merits of APA violation claims have unanimously decided that the SORNA Interim Rule does not violate the APA. See e.g., United States v. Shenandoah, 572 F.Supp.2d 566, 589-90 (M.D.Pa.2008); United States v. Vasquez, 576 F.Supp.2d 928, 940-41 (N.D.Ill.2008); United States v. Torres, 573 F.Supp.2d 925, 948-50 (W.D.Tex.2008); United States v. Gould, 526 F.Supp.2d 538, 546 (D.Md. 2007); United States v. Keleher, 2008 WL 5054116, *16-17 (E.D.Cal.2008); United States v. Robinson, 2008 WL 4086474, *9 (S.D.Ga.2008); United States v. David, supra, 2008 WL 2045827 at *8. See also United States v. Dixon, 551 F.3d 578, 583 (7th Cir.2008) (rejecting defendant’s claim that SOR-NA violates the APA out of hand as “a frivolous argument.”). The Court joins these courts and finds that the Attorney General’s explicit rationale demonstrates good cause for enacting the regulations without notice or comment, namely, to prevent a delay in implementation that could jeopardize the safety of the public and thwart the purposes of the Act.

Id. at 612-13.

Likewise, in United States v. Gould, 568 F.3d 459, 470 (4th Cir.2009), the Court of Appeals for the Fourth Circuit held that good cause was demonstrated because delay for notice and comment would “put the public safety at greater risk”:

In the circumstances, we conclude that the Attorney General had good cause to *436invoke the exception to providing the 30-day notice. There was a need for legal certainty about SORNA’s “retroactive” application to sex offenders convicted before SORNA and a concern for public safety that these offenders be registered in accordance with SORNA as quickly as possible. Delaying implementation of the regulation to accommodate notice and comment could reasonably be found to put the public safety at greater risk. In addition, the Attorney General did provide for and receive post-promulgation public comments, which were addressed in the proposed National Guidelines issued in May 2007 and ultimately in the final National Guidelines issued in July 2008. See 72 Fed.Reg. at 8896 (Feb. 28, 2007); 72 Fed.Reg. 30210 (May 30, 2007); 73 Fed. Reg. 38030 (July 2, 2008).

I agree with the sound rationale of these courts. Significantly, as the Gould court points out, the Attorney General complied with the Congressional mandate of § 16912(b) by issuing proposed guidelines for SORNA in May 2007 and, following observance of the requisite notice and comment of 5 U.S.C. § 553, then issuing final guidelines in July 2008. See Proposed Guidelines to Interpret and Implement the Sex Offender Registration and Notification Act, 72 Fed.Reg. 30210 (May 30, 2007), and Final Guidelines to Interpret and Implement the Sex Offender Registration and Notification Act, 73 Fed. Reg. 38030 (July 2, 2008). The majority has imprudently created an inter-circuit conflict on this issue.

Good cause for the immediate effect of the interim rule is based upon the same public interest concern for safety from convicted sex offenders that led Congress to enact, with immediate effect, the Adam Walsh Child Protection and Safety Act of 2006. In my view, the Attorney General’s finding of good cause in furtherance of the overriding interest of public safety is substantial and compelling. Good cause to waive the customary notice and comment period has been shown. Accordingly, the interim regulation is valid and applicable to Cain, even if the majority’s erroneous construction of SORNA were accepted.

Y.

For these reasons, I respectfully dissent. I would affirm defendant Cain’s conviction.5

. The Attorney General complied with the mandate of § 16912(b). See Proposed Guidelines to Inteipret and Implement the Sex Offender Registration and Notification Act, 72 Fed.Reg. 30210 (May 30, 2007), and the Final Guidelines to Inteipret and Implement the Sex Offender Registration and Notification Act, 73 Fed.Reg. 38030 (July 2, 2008).

. The Eleventh Circuit Court of Appeals, in United States v. Madera, 528 F.3d 852, 857 (11th Cir.2008), cited favorably by the majority in this case, failed to make this critical distinction when it held that "Congress’s use of the word 'shall' [in § 16913(d) ] indicates that Congress was issuing a directive to the Attorney General specifically to make the determination.... Congress's use of the word 'shall' means that the one commanded must follow the command.” (citation and internal quotation marks omitted).

. In so concluding, the court noted that procedures incident to an eviction by state judicial process were adequate to protect the rights of the tenant. Id. at 1408.

. It appears that the majority has reviewed de novo the Attorney General's finding of good cause. Under the APA, our authority to review an agency decision is limited to a determination whether it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). See generally, Battle Creek Health Sys. v. Leavitt, 498 F.3d 401, 409 (6th Cir.2007); Sasse v. U.S. Dep’t of Labor, 409 F.3d 773, 778 (6th Cir.2005); see also Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 886 (3d Cir.1982) (reviewing the administrative agency’s claim that "impracticability” under 5 U.S.C. § 553(b)(B) excused its compliance with the APA's notice and comment requirements under the deferential "arbitrary, capricious, and abuse of discretion” standard of review; stating that "we must not substitute our judgment for that of the agency” but "must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment”; and evaluating the district court’s ruling on the issue for "clear error”) (citation and internal quotation marks omitted); United States v. Gavrilovic, 551 F.2d 1099, 1105-06 (8th Cir.1977) (stating that, "[i]n reviewing whether the [administrative agency] has met its legal burden of showing that [its forgoing of the APA's notice and comment requirements] was in fact 'necessitated' by the conditions of public health and safety, we do not suggest that this court may substitute its judgment for that of the agency” and "the agency must be given broad leeway in exercising its administrative expertise”). But see Reno-Sparks Indian Colony v. United States Envtl. Prot. Agency, 336 F.3d 899, 909 n. 11 (9th Cir.2003) (reviewing de novo agency’s decision not to follow the APA's notice and comment procedures "because complying with the notice and comment provisions when required by the APA is not a matter of agency choice.”) (citation and internal quotation marks omitted). In my view, because the Attorney General has been granted the authority to decide whether good cause exists, judicial deference should be afforded the decision. However, under either standard of review, good cause has been shown.

. The additional issues raised by Cain are merilless and warrant little discussion. Cain's Commerce Clause, Ex Post Facto, and other constitutional claims have been rejected by every circuit court that has considered them. See Gould, 568 F.3d at 470-75; Hinckley, 550 F.3d at 938-40; and May, 535 F.3d at 919-22. I agree with our sister circuits regarding these issues and adopt their analysis. Also, the factual defenses Cain raises on appeal pertaining to his conviction are forfeited by his conditional guilty plea. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).