United States v. Madera

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 23, 2008
No. 07-12176 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 06-00202-CR-ORL-18-KRS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILFREDO G. MADERA,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(May 23, 2008)

Before BARKETT, FAY and STAPLETON,* Circuit Judges.

PER CURIAM:

*
Honorable Walter K. Stapleton, United States Circuit Judge for the Third Circuit Court
of Appeals, sitting by designation.
 Wilfredo G. Madera (“Madera”) appeals from the district court’s denial of

his motion to dismiss the indictment against him for failing to register as a sex

offender in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection

and Safety Act of 2006 (“Walsh Act”). On appeal, Madera argues that the Walsh

Act is unconstitutional because it violates the following provisions of the United

States Constitution: 1) the Non-Delegation Doctrine, Art. I, § 1; 2) the ex post facto

clause, Art. I, § 9, cl. 3; 3) both the procedural and substantive due process clauses

of the Fifth Amendment; and 4) the Commerce Clause, Art. I, § 8, cl. 3. The

district court denied Madera’s motion to dismiss, holding as a matter of law that

the Walsh Act was both retroactive and constitutional. We reverse.

Factual Background

Madera was convicted in New York in November 2005 of sexual abuse in

the second degree, a misdemeanor under New York Penal Code § 130.60. He was

sentenced to six years of probation for this conviction, but was not incarcerated.

Madera signed a sexual offender registration form in New York, dated May 1,

2006, which stated, “If you move to another state you must register as a sex

offender within 10 days of establishing residence.”

Madera subsequently moved to Florida, and was issued a driver’s license on

June 1, 2006 with an address in West Palm Beach, Florida. He was arrested on

2
October 23, 2006 for failure to register as a sex offender in violation of 18 U.S.C.

§ 2250, and was thereafter indicted by a grand jury for “knowingly and unlawfully

fail[ing] to register and update a registration as required by [the Walsh Act].”

After the district court denied Madera’s motion to dismiss, Madera entered a

conditional plea of guilty to the failure to register charge, permitting him to appeal

that motion. The district court then sentenced Madera to time served, four years of

probation, and a $500 fine. As of March 8, 2007, Madera has been registered with

the State of Florida Sexual Offender Registration database. This appeal followed.

Standard of Review

Generally, we review a district court’s denial of a motion to dismiss for an

abuse of discretion. See United States v. Noriega, 117 F.3d 1206, 1211 (11th Cir.

1997). To the extent that the district court’s determination rests on the district

court’s resolution of questions of law, however, we must review those questions of

law de novo. Id.1

Discussion

The Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-

1
The Government suggests that several of Madera’s arguments should be reviewed for
clear error because they were not raised before the district court. Madera’s arguments, however,
are all presented to support claims properly preserved before the district court. Thus, they too
will be reviewed de novo insofar as they turn on questions of law. See Yee v. Escondido, 503
U.S. 519, 532 (1992) (“Once a federal claim is properly presented, a party can make any
argument in support of that claim; parties are not limited to the precise arguments they made
below.”).

3
248, was enacted on July 26, 2007. Title I of the Act, entitled the Sex Offender

Registration and Notification Act (“SORNA”), creates a national sex offender

registry law. In addition to defining the term “sex offender” and addressing the

various tiers of sex offender status, 42 U.S.C. § 16911, SORNA also requires every

jurisdiction to maintain a sex offender registry conforming to the requirements of

SORNA. 42 U.S.C. § 16912. At a minimum, SORNA requires sex offenders to

provide information disclosing their name and aliases, Social Security number,

residence, place of employment and/or school, and vehicle information. 42 U.S.C.

§ 16914(a)(1)–(7). Every jurisdiction must also include in the sex offender registry

the sex offender’s physical description, criminal history, current photographs,

fingerprints and palm prints, DNA sample, and a photocopy of a driver’s license or

identification card. 42 U.S.C. § 16914(b)(1)–(8). Certain information about the

sex offender (exempting items such as Social Security numbers) is also mandated

to be published on a jurisdictional website, and each jurisdiction’s website must

contain full field search capabilities for participation in the National Sex Offender

Public Website which is maintained by the Attorney General. See 42 U.S.C.

§§ 16918, 16920.

Most pertinent to this case, SORNA also delineates how and when a sex

offender should register under the Act. In general, sex offenders are required to

4
register in each jurisdiction where the sex offender resides within three days of

being sentenced, unless they are sentenced to a term of imprisonment for the sex

offense, in which case they must register before completing their sentence. 42

U.S.C. § 16913(a)–(b).1 If a sex offender has a change in name, residence,

1
The registry requirements for sex offenders under 42 U.S.C. § 16913 are as follows:

(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

5
employment, or student status, the sex offender must update their registration

within three days. 42 U.S.C. § 16913(c). SORNA creates a new federal crime for

those individuals who fail to register, or to keep their registration current, despite

being required to do so by subjecting the sex offender to fines or imprisonment up

to ten years, or both. 18 U.S.C. § 2250(a).2 On appeal, Madera challenges the

district court’s ruling that SORNA is retroactive from its date of enactment and the

comply with subsection (b) of this section.

(e) State penalty for failure to comply

Each 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.

2
In relevant part, 18 U.S.C. § 2250 provides as follows:

(a) In general.--Whoever--

(1) is required to register under the Sex Offender Registration and Notification Act;

(2) (A) is a sex offender as defined for the purposes of the Sex Offender
Registration and Notification Act by reason of a conviction under Federal law
(including the Uniform Code of Military Justice), the law of the District of
Columbia, Indian tribal law, or the law of any territory or possession of the
United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in,
Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex
Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

6
court’s rejection of his arguments that SORNA is unconstitutional. We first

consider SORNA’s retroactivity.

Congress vested the Attorney General with “the authority to specify the

applicability of the requirements of this subchapter to sex offenders convicted

before July 27, 2006.” 42 U.S.C. § 16913(d). The Attorney General exercised that

authority by issuing an interim rule on February 28, 2007, stating that SORNA was

to apply retroactively to anyone convicted of a sex offense, regardless of when that

offense took place. See 28 C.F.R. § 72.3.

Over a month before the Attorney General issued this interim rule, the

district court in this case held that SORNA was retroactive as a matter of law. In

doing so, the district court said, “[T]he determination of whether a law is

retroactive is in the capable hands of either one of two branches of government:

Congress or the courts. Congress, in stating that the Attorney General has the

authority to determine how sex offenders convicted before July 27, 2006, should

comply with SORNA registration, is merely giving the Attorney General an

advisory role to the courts.” U.S. v. Madera, 474 F.Supp. 2d 1257, 1261 (M.D. Fla.

2007). The district court concluded that because Congress did not specifically

prescribe the statute’s reach, and the Attorney General had not yet made a

determination, the court was left to apply the normal rules of statutory

7
construction, “guided by the familiar [retroactivity] considerations of fair notice,

reasonable reliance, and settled expectations.” Id. at 262 (citing INS v. Cyr, 533

U.S. 289, 321 (2001)). The district court found that Madera was on fair notice that

he had to register in Florida because of the requirement contained in the New York

registration form he signed in May 2006; that “[n]o new duties were imposed on

[Madera] by the enactment of SORNA;” and that SORNA did not “impair any

rights [Madera] possessed when he failed to register in Florida.” Id. In light of

these findings, the district court concluded that SORNA was retroactive as of July

27, 2006, the day of its enactment.3

Madera argues that the district court erred in determining that SORNA was

retroactive as a matter of law because Congress specifically delegated this decision

to the Attorney General.4 Madera argues that his prosecution under the Act was

premature because the Attorney General’s rule, made months after Madera’s

November 1, 2006 prosecution, was a “condition precedent” to SORNA’s

retroactive enforcement. In addition, Madera argues that the plain language of the

3
When the district court initially orally denied Madera’s motion to dismiss the
indictment, the court ruled that SORNA was retroactive as of the day of the court’s
pronouncement. When the district court’s written opinion was issued about a week later,
however, it held that SORNA was in fact retroactive as of the day of its enactment.
4
In making this argument, Madera does not concede that this authority was properly
delegated to the Attorney General. He does not waive his later argument that this delegation
exceeded Congress’s authority in violation of the Non-delegation Clause.

8
“failure to register” crime set forth in 18 U.S.C. § 2250 applies only to those sex

offenders who traveled in interstate commerce after the July 27, 2006 enactment

because it uses the present sense of the verb “travels,” and not the past tense.

Because Madera’s interstate travel occurred before the Act was enacted, he argues

that § 2250 cannot be retroactively applied to him. Madera also argues that the

rule of lenity, which compels strict construction of ambiguous criminal statutes so

that they are applied only to conduct clearly covered, precludes the district court’s

ruling that the statute was retroactive.

A. Retroactivity of SORNA

It is now clear, following the Attorney General’s pronouncement of the

interim rule, that SORNA is to be retroactively applied to sex offenders convicted

prior to SORNA’s enactment. See Applicability of the Sex Offender Registration

and Notification Act, 72 Fed. Reg. 8894, 8896 (explaining that “[t]he current

rulemaking serves the . . . 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.”).

The question that remains, however, is whether SORNA may be

retroactively applied to Madera who was convicted prior to SORNA’s enactment

and prosecuted prior to the promulgation of the Attorney General’s rule. Though

9
this is the first time that a court of appeals has considered this issue, it has been

raised in district courts across the country, and their decisions on the question have

gone in both directions. See, e.g., United States v. Kapp, 487 F. Supp. 2d 536 (M.

D. Pa. 2007) (finding that defendants indicted prior to Attorney General’s

promulgated rule could not be prosecuted under SORNA); United States v. Hinen,

487 F.Supp. 2d 747 (W. D. Va. 2007) (finding that defendants had duty to register

under SORNA even prior to the Attorney General’s rule promulgation).

This case is unique, however, because the district court decision was

rendered before the Attorney General even issued the interim rule. Because the

scope of the rule had not yet been clarified, the district court undertook a statutory

construction analysis and declared as a matter of law that SORNA was retroactive

as of the day of its enactment. By doing so, the district court erred as a matter of

law.

Congress expressly reserved the retroactivity determination to be made by

the Attorney General, and not by the district court. 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

10
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. See United States v. Quirante, 486 F.3d

1273, 1275 (11th Cir. 2007) (concluding that Congress’s use of the word “shall”

means that “[t]he one commanded must follow the command”). The district court

clearly erred by usurping the role of the Attorney General in preemptively

determining SORNA’s retroactive application.

In so finding, we reject the Government’s argument that the Attorney

General was not given full discretion to determine whether SORNA would be

retroactively applied to sex offenders convicted before its enactment. We cannot

agree that 42 U.S.C. § 16913(d) “addresses only those offenders unable to comply

with the timing requirements for initial registration under § 16913(b).” We

recognize, as have some district courts, that “[t]here is a tension between the title

of subsection (d) and its text.” United States v. Gould, 526 F. Supp. 2d 538, 543

(D. Md. 2007). Subsection (d)’s title indicates that it applies to the “Initial

registration of sex offenders unable to comply with subsection (b) of this section.”

The text of subsection (d), however, provides as follows:

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

11
 of sex offenders who are unable to comply with subsection (b) of this
section.

42 U.S.C. § 16913(d). We read the text, 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.

Thus, we find that Congress vested the Attorney General with sole discretion

to determine SORNA’s retroactivity. Our reading of the statute is supported by the

fact that the Attorney General in fact exercised his full discretion to determine its

retroactivity when he issued the interim rule stating, “The requirements of

[SORNA] apply to all sex offenders, including sex offenders convicted of the

offense for which registration is required prior to the enactment of that Act.” 28

C.F.R § 72.3. It is clear that this pronouncement is more than a mere regulation

regarding the mechanical aspects of how previously convicted sex offenders

should initially register under the statute.

Our reading is also consistent with the change in language between 42

U.S.C. § 16913(d) and SORNA’s predecessor statute.5 SORNA was preceded by

5
Although the Government argues that the language in SORNA’s predecessor bill
supports a finding that Congress intended SORNA to apply retroactively, we find that the
broader language used in SORNA actually indicates that the Attorney General was no longer

12
the Children’s Safety Act of 2005, H.R. 3132, 109th Cong. § 113(d) (2005). It

contained a comparable clause which read, “The Attorney General shall prescribe a

method for the registration of sex offenders convicted before the enactment of this

Act or its effective date in a particular jurisdiction.” § 113(d). Given that

language, the Attorney General’s role was clearly “limited to specifying the

manner by which past offenders could register.” Kapp, 487 F. Supp. 2d at 542 n.9.

Subsection (d), on the other hand, granted the Attorney General unfettered

discretion to determine both how and whether SORNA was to be retroactively

applied. Thus, Congress expanded the Attorney General’s existing authority when

it enacted SORNA.

Given our finding that the Attorney General had sole discretion to determine

whether or not SORNA was to be retroactively applied to sex offenders convicted

before its enactment date, it only stands to reason that SORNA’s scope was

undefined prior to that determination.6 Because Madera’s indictment concerns his

failure to register during the gap period between SORNA’s enactment and the

Attorney General’s retroactivity determination, he cannot be prosecuted for

constrained to merely promulgating regulations. Were that to remain his role, Congress would
presumably have preserved the clear language (and limits) of the Children’s Safety Act.
6
We agree with Madera’s argument that the rule of lenity compels this conclusion.
United States v. Lanier, 520 U.S. 259, 266 (1997) (noting that the “canon of strict construction
of criminal statutes, or rule of lenity, ensures fair warning by so resolving ambiguity in a
criminal statute as to apply it to conduct only clearly covered”).

13
violating SORNA during that time. Thus, his indictment is due to be dismissed,

and the judgment of the district court is reversed.7

Having decided the case on this basis, we need not reach the important

constitutional questions raised in Madera’s appeal. See Slack v. McDaniel, 529

U.S. 473, 485 (2000) (recognizing “[c]ourts will not pass upon a constitutional

question although properly presented in the record, if there is also present some

other ground upon which the case may be disposed of”) (citing Ashwander v.

TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)).

The judgment of the district court is REVERSED.

7
Because we grant Madera’s motion to dismiss his indictment on this basis, we need not
reach his statutory argument regarding Congress’s use of the word “travels”.

14