United States v. Gould

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 08-4302
BRIAN LEE GOULD,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William D. Quarles, Jr., District Judge.
(1:07-cr-00359-WDQ-1)

Argued: January 28, 2009

Decided: June 18, 2009

Before NIEMEYER and MICHAEL, Circuit Judges, and
Arthur L. ALARCÓN, Senior Circuit Judge of the United
States Court of Appeals for the Ninth Circuit, sitting by
designation.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Senior Judge Alarcón joined. Judge
Michael wrote a dissenting opinion.

COUNSEL

ARGUED: Paresh S. Patel, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
2 UNITED STATES v. GOULD
Rod J. Rosenstein, United States Attorney, Baltimore, Mary-
land, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, Baltimore, Maryland, for Appellant. Bonnie S.
Greenberg, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland,
for Appellee.

OPINION

NIEMEYER, Circuit Judge:

In this appeal we determine whether Brian Lee Gould was
properly convicted under the Sex Offender Registration and
Notification Act ("SORNA"), Pub. L. No. 109-248, §§ 101-
155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C.
§ 16901 et seq. and 18 U.S.C. § 2250), for failing to register
in Maryland as a sex offender when Maryland had not yet
implemented SORNA’s enhanced registration requirements.

Gould was convicted of a sex offense in the District of
Columbia in 1985 and, upon his release in 2002, was required
to register, by pre-SORNA federal and state law, as a sex
offender in the State in which he resided, worked, or was a
student. See 42 U.S.C. §§ 14071(b),(c), 14072(c),(g),(i); D.C.
Code § 22-4014. In early 2004, Gould moved to West Vir-
ginia; in late 2004 to Pennsylvania; and in 2006 to Maryland.
Gould was convicted in West Virginia for failing to update his
registration and was charged in Pennsylvania with failing to
update his registration. He never registered in Maryland.

On July 27, 2006, before Gould moved to Maryland, Con-
gress enacted SORNA, which expanded the information
required to be provided on registration and created a federal
requirement that sex offenders "register, and keep the registra-
tion current, in each jurisdiction where the offender resides,
where the offender is an employee, and where the offender is
 UNITED STATES v. GOULD 3
a student." 42 U.S.C. § 16913(a). SORNA also criminalized
the failure to register. See 18 U.S.C. § 2250(a).

Approximately one year after SORNA was enacted, Gould
was arrested in Maryland and charged with violating SORNA,
18 U.S.C. § 2250(a), for failing to register in Maryland. After
the district court denied Gould’s motion to dismiss, in which
he raised statutory and constitutional challenges, Gould
pleaded guilty, reserving for appeal his statutory and constitu-
tional challenges.

Gould contends that the district court should have dis-
missed his indictment because (1) he could not have been
prosecuted for failure to register under SORNA because
Maryland had not yet implemented SORNA; (2) he was "un-
able" to "initially register," as required by SORNA, 42 U.S.C.
§ 16913(b), because he was released from prison on his
underlying sex offense long before SORNA was enacted; (3)
he could not have "knowingly" failed to register in accor-
dance with SORNA because he was not specifically instructed
of SORNA’s requirements, as required by 42 U.S.C. § 16917
and the regulations promulgated by the Attorney General; (4)
prosecution without notification of his duty to register vio-
lated his rights under the Due Process Clause; (5) the Attor-
ney General violated the Administrative Procedure Act in
promulgating the interim regulations at 28 C.F.R. § 72 (2007)
without notice and comment; and (6) SORNA violates the
Commerce Clause by regulating "purely local intrastate activ-
ity that has nothing to do with commerce or any type of eco-
nomic enterprise."

We reject each of Gould’s arguments for the reasons that
follow and affirm the judgment of the district court.

I

In 1985, Gould was convicted in the District of Columbia
for assault with intent to commit sodomy while armed, in vio-
4 UNITED STATES v. GOULD
lation of D.C. Code §§ 22-503 and 22-3502 (1981). Since his
release from prison in 2002, Gould has remained on parole
under the supervision of the United States Parole Commis-
sion.

Gould moved to West Virginia in March 2004, and he duly
registered there as a sex offender. But later that same year, he
was charged and convicted of failing to update his registration
pursuant to a continuing legal duty under West Virginia law
to do so and was sentenced to 90 days’ imprisonment.

In December 2004, Gould moved to Pennsylvania, where
he again registered as a sex offender. But again he was
charged in Pennsylvania with failing to comply with the
requirement to update his registration. Before he could be
arrested, however, he left Pennsylvania for Maryland, and on
May 23, 2007, a warrant was issued in Pennsylvania for his
arrest.

Before leaving Pennsylvania, Gould advised his parole offi-
cer of his intent to leave Pennsylvania, and the officer told
Gould that he was not permitted to leave the State. Gould
nonetheless moved to Maryland on August 21, 2006. He
failed to keep two appointments, on August 21 and August
28, required by his parole officer in Pennsylvania, prompting
a United States Parole Commissioner to issue a warrant for
his arrest on August 31, 2006.

Gould failed to register as a sex offender in Maryland. In
July 2007, he was arrested in Maryland on the warrant issued
by the Parole Commissioner and was subsequently charged
with failure to register as a convicted sex offender, in viola-
tion of SORNA, 18 U.S.C. § 2250(a). The indictment read:

Between on or about August 21, 2006, and continu-
ing until on or about July 18, 2007, in the District of
Maryland, Brian Lee Gould . . . , an individual
required to register under [SORNA] by reason of a
 UNITED STATES v. GOULD 5
conviction under Federal law and the law of the Dis-
trict of Columbia for Assault with Intent to Commit
Sodomy while Armed, and an individual who trav-
eled in interstate and foreign commerce after being
required to register, did knowingly fail to register
and update a registration as required by SORNA.

Gould filed a motion to dismiss the indictment, raising the
statutory and constitutional grounds asserted in this appeal,
and the district court denied the motion with a written opin-
ion. See United States v. Gould, 526 F. Supp. 2d 538 (D. Md.
2007). Gould thereafter entered a guilty plea, reserving the
right to appeal the district court’s order denying his motion to
dismiss, and the district court sentenced him to 24 months’
imprisonment.

On appeal, Gould claims that SORNA does not, by its
terms, authorize his prosecution for a violation of SORNA
and that, in any event, SORNA is unconstitutional both on its
face and as applied to him.

II

Gould contends first that he cannot be prosecuted for fail-
ing to register under SORNA because Maryland has not yet
implemented SORNA. He asserts that "SORNA does not
impose a direct federal mandate on individuals to register . . . .
Instead, it merely sets forth registration standards that it
encourages states [through the Spending Clause of the Consti-
tution] to incorporate into their local laws by July 2009 at the
earliest." He reasons that "because Maryland has not yet
implemented SORNA, [he] was not subject to its constraints
and could not be legally punished for violating the Act."
Gould argues that to "conclude that SORNA applies in pre-
implementation states would prematurely force states to regis-
ter offenders under SORNA’s terms before they choose to
adopt the Act. Such reading would render meaningless the
provision in SORNA [at 42 U.S.C. § 16924] that clearly gives
6 UNITED STATES v. GOULD
states until at least July 2009 to make this choice and comply
with the Act."

Gould’s argument depends on a construction of SORNA
that links the requirement imposed on individual sex offend-
ers to register to the requirement imposed on the States to
implement the registration standards mandated by SORNA in
a manner that would have the requirement imposed on indi-
viduals be dependent on the State’s implementation.1 The lan-
guage of SORNA, however, does not provide that linkage.

SORNA § 141(a), entitled "Criminal Penalties for Nonreg-
istration," provides in relevant part:

Whoever —

(1) is required to register under
[SORNA];

(2) (A) is a sex offender as defined for
the purposes of [SORNA] by reason
of a conviction under Federal law . . .
[or] the law of the District of Colum-
bia . . . ; or

(B) travels in interstate or foreign
commerce . . . ; and
1
Exercising its power under the Spending Clause, Congress directed
each State "to substantially implement this subchapter" or lose "10 percent
of the funds that would otherwise be allocated for that fiscal year" to the
State under the Omnibus Crime Control and Safe Streets Act of 1968. 42
U.S.C. § 16925(a). Implementation requires, for example, that the State
"maintain a jurisdiction-wide sex offender registry conforming to the
requirements of [SORNA]," id. § 16912(a); "provide a criminal penalty"
for a sex offender’s failure to register, id. § 16913(e); "make available on
the Internet . . . all information about each sex offender in the registry,"
id. § 16918(a); and "provide the information in the registry . . . about that
offender" to various national and local law enforcement agencies and
community organizations, id. § 16921(b).
 UNITED STATES v. GOULD 7
(3) knowingly fails to register or update a
registration as required by [SORNA];

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

18 U.S.C. § 2250(a). The requirement to "register or update
a registration" is imposed by SORNA § 113(a), which pro-
vides:

A sex offender shall register, and keep the registra-
tion current, in each jurisdiction where the offender
resides, where the offender is an employee, and
where the offender is a student. For initial registra-
tion purposes only, a sex offender shall also register
in the jurisdiction in which convicted if such juris-
diction is different from the jurisdiction of residence.

42 U.S.C. § 16913(a). Thus, to establish a criminal violation
of SORNA in this case, the government was required to show
(1) that Gould was required to register under 42 U.S.C.
§ 16913(a) as a sex offender residing in Maryland; (2) that he
was convicted of an offense under District of Columbia law
that made him a sex offender, see id. § 16911(1),(5) (defining
"sex offender" and "sex offense"), or that he traveled in inter-
state commerce; and (3) that he "knowingly" failed to register
as required by § 16913(a).

The parties do not dispute that Gould was a sex offender by
reason of his conviction under District of Columbia law or
that after his conviction he traveled to Maryland where he
knowingly failed to register as a sex offender. The question
at issue is whether SORNA required Gould to register in
Maryland before Maryland implemented SORNA by amend-
ing its registration facilities to comport with the enhanced
standards imposed by SORNA, or, stated otherwise, whether
Gould’s registration obligations under SORNA § 113(a), 42
8 UNITED STATES v. GOULD
U.S.C. § 16913(a), were contingent on Maryland’s implemen-
tation of the Act.

First, SORNA § 113(a)’s requirements to register and
maintain registration are not expressly conditioned on a
State’s implementation of the Act, which is consistent with
SORNA’s purpose "to strengthen and increase the effective-
ness of [preexisting] sex offender registration and notifica-
tion." See The National Guidelines for Sex Offender
Registration and Notification ("National Guidelines"), 73 Fed.
Reg. 38030, 38030 (July 2, 2008). Preexisting law included
the Jacob Wetterling Crimes Against Children and Sexually
Violent Offender Registration Act, enacted in 1994, which
provided federal funding to States that enacted sex offender
registration laws. See 42 U.S.C. § 14071. Subsequent amend-
ments to the Jacob Wetterling Act provided criminal penalties
of up to one year’s imprisonment for certain sex offenders
who failed to register in each State where the sex offender
resided, worked, or went to school. Id. § 14072(i). By the time
that SORNA was enacted in 2006, every State and the District
of Columbia had enacted a sex offender registration law.
Thus, under the Jacob Wetterling Act and the state laws
enacted pursuant to that Act, Gould was required to register
and maintain his registration in the District of Columbia, West
Virginia, Pennsylvania, and Maryland. He failed to update his
registrations as required by law in West Virginia and in Penn-
sylvania, and he failed to register altogether in Maryland, in
violation of Md. Code Ann., Crim. Proc. §§ 11-704 to 11-707.
Because Maryland had a pre-SORNA program under which
Gould could register and indeed was required to register,
Gould cannot claim that there was no place to register simply
because Maryland had not implemented the enhanced stan-
dards of SORNA.2 Thus, under the plain reading of SORNA,
Gould’s failure to register in Maryland was a federal crime
2
If Gould could demonstrate that "uncontrollable circumstances" pre-
vented him from registering in Maryland, he would have an affirmative
defense to a violation of § 2250(a). See 18 U.S.C. § 2250(b).
 UNITED STATES v. GOULD 9
under 18 U.S.C. § 2250(a), subject to federal punishment—a
result consistent with SORNA’s purpose of strengthening and
increasing the effectiveness of sex offender registration laws.

Second, the structure of SORNA’s requirements indicates
a separateness of the sex offenders’ individual duty to register
and the State’s duty to enhance its registries and standards as
mandated by the Act. As the Attorney General’s National
Guidelines for SORNA note, "Some of the provisions in
SORNA are formulated as directions to sex offenders, includ-
ing those appearing in sections 113(a)-(b) . . . . Other SORNA
provisions are cast as directions to jurisdictions . . . ."
National Guidelines, 73 Fed. Reg. at 38048 (emphasis added).
Thus, even though state implementation must be accom-
plished by July 27, 2009,3 three years after SORNA’s enact-
ment, the registration requirement of SORNA § 113(a) was
imposed immediately on sex offenders on July 27, 2006, the
date of SORNA’s enactment. As the National Guidelines
explain: "SORNA’s requirements [for sex offender registra-
tion] 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 enact-
ment." National Guidelines, 73 Fed. Reg. at 38046. With
respect to sex offenders convicted before the enactment of
SORNA, however, we have held that the federal duty to regis-
ter applies only after the Attorney General, by regulation,
made clear that the Act applied to such sex offenders. See
United States v. Hatcher, 560 F.3d 222, 227, 229 (4th Cir.
3
A State need not enact any implementing legislation to be in compli-
ance with SORNA. The National Guidelines provide that "[w]hile
SORNA sets minimum standards for jurisdictions’ registration and notifi-
cation programs, it does not require that its standards be implemented by
statute." National Guidelines, 73 Fed. Reg. at 38047. In fact, "the totality
of a jurisdiction’s rules . . . will be considered" in assessing a State’s com-
pliance with SORNA. Id. A State’s failure to comply "results in a 10%
reduction of federal justice assistance funding," id., but it is not a defense
for an individual’s failure to register. See United States v. Hinckley, 550
F.3d 926, 939 (10th Cir. 2008).
10 UNITED STATES v. GOULD
2009). In Hatcher, we reasoned that because the Attorney
General did not exercise his authority "to specify the applica-
bility" of SORNA to previously convicted sex offenders until
February 28, 2007, SORNA’s registration requirement did not
apply to previously convicted sex offenders until that date. Id.
at 226-27.4 But SORNA’s registration requirements, which
were applied to pre-SORNA offenders on February 28, 2007,
are still requirements imposed on individuals and are not sub-
ject to the requirements imposed on the States, which were
given a three-year grace period from the date of SORNA’s
enactment.

Third, the Attorney General, acting under 42 U.S.C.
§§ 16912(b) and 16913(d) (directing the Attorney General to
promulgate regulations and authorizing him "to specify the
applicability of the requirements of this title to sex offenders
convicted before the enactment of [SORNA] . . . or its imple-
mentation in a particular jurisdiction"), promulgated interim
regulations, effective February 28, 2007, and final regulations
(the National Guidelines), effective July 2, 2008. Interim Reg-
ulation 72.3 provided that "[t]he requirements of [SORNA]
apply to all sex offenders, including sex offenders convicted
. . . prior to the enactment of that Act." 28 C.F.R. § 72.3
(2007); Applicability of the Sex Offender Registration and
Notification Act, 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007); see
also Hatcher, 560 F.3d at 229 (holding that registration
requirement for pre-SORNA sex offenders applies, effective
February 28, 2007). In issuing the Interim Regulations, the
Attorney General explained that "[i]n contrast to SORNA’s
provision of a three-year grace period for jurisdictions to
implement its requirements, SORNA’s direct federal law reg-
4
Unlike the facts in Hatcher, where the defendant was charged with fail-
ing to register before the Attorney General issued his regulations, see 560
F.3d at 226, Gould was charged with failing to register during a period
that ended "on or about July 18, 2007," several months after the Attorney
General issued his regulations on February 28, 2007. Thus, our holding in
Hatcher that Hatcher could not be charged with failing to register before
the regulations were issued does not assist Gould in this case.
 UNITED STATES v. GOULD 11
istration requirements for sex offenders are not subject to any
deferral of effectiveness." 72 Fed. Reg. at 8895 (emphasis
added); see also National Guidelines, 73 Fed. Reg. at 38046.
Indeed, the National Guidelines, which have the force of law,
see 42 U.S.C. §§ 16912(b), 16913(d), emphasize, with greater
particularity, that "SORNA applies to all sex offenders,
including those convicted of their registration offenses prior
to the enactment of SORNA or prior to particular jurisdic-
tions’ incorporation of the SORNA requirements into their
programs." 73 Fed. Reg. at 38063 (emphasis added).

For the reasons given, Gould’s contention that SORNA’s
registration requirement did not apply to him because Mary-
land has not yet implemented SORNA’s requirements is fore-
closed. We conclude that the requirement imposed on
individuals to register is independent of the requirement
imposed on the States to implement the enhanced registration
and notification standards of SORNA. Accordingly,
SORNA’s requirement that a sex offender register applies
whether registration would be accomplished through pre-
SORNA registration facilities or under SORNA-compliant
programs. Because Gould did not register in Maryland as of
July 18, 2007, he became criminally liable under 18 U.S.C.
§ 2250(a) for his failure to register. See United States v.
Hinckley, 550 F.3d 926, 939 (10th Cir. 2008) (rejecting defen-
dant’s argument that it was impossible for him to register in
Oklahoma under SORNA because the State had not passed
legislation implementing SORNA); United States v. Dixon,
551 F.3d 578, 582 (7th Cir. 2008) (rejecting defendant’s argu-
ment that he could not comply with SORNA’s registration
requirements because Indiana had not passed legislation
implementing SORNA).

III

Gould also claims that "[p]unishing [him] for failing to reg-
ister under SORNA—a law that does not yet apply to him—
violates the Ex Post Facto Clause of the Constitution." As he
12 UNITED STATES v. GOULD
acknowledges, the Ex Post Facto Clause prohibits punishment
of a defendant "for an act which was not punishable at the
time it was committed." Weaver v. Graham, 450 U.S. 24, 28
(1981).

Gould’s argument, however, rests on his contention that
SORNA could not apply to him until Maryland implemented
SORNA. Inasmuch as we reject this contention, we also reject
his argument under the Ex Post Facto Clause. Gould was pun-
ished for failing to register during the period after SORNA
was enacted, beginning at least as early as February 28, 2007,
when the Attorney General issued his Interim Regulations
clarifying that SORNA applied to pre-SORNA sex offenders.
Because Gould was punished for his conduct after enactment
of the SORNA provision criminalizing the conduct, his pun-
ishment does not violate the Ex Post Facto Clause.

IV

Gould contends next that he was "unable" to "initially reg-
ister," as required by SORNA because § 16913(b), which
addresses "initial registration," requires sex offenders to "ini-
tially register" under SORNA before completing their sen-
tences for the sex offense. See 42 U.S.C. § 16913(b),(d).
Gould asserts that because he was released from prison on his
sex offense in 2002—years before SORNA was enacted—he
could not have complied with the initial registration require-
ment. Gould also claims that the Attorney General’s National
Guidelines, promulgated under § 16913(d) (authorizing the
Attorney General "to prescribe rules for the registration of . . .
other categories of sex offenders who are unable to comply
with subsection (b) [initial registration]"), "command that an
individual who is ‘unable’ to ‘initially register’ under
§ 16913(b) only has a duty to register pursuant to SORNA
after the state in which he resides implements SORNA, he is
fully instructed of SORNA’s requirements, and he receives
signed acknowledgment of these instructions," citing the
National Guidelines, 73 Fed. Reg. at 38063. Gould concludes
 UNITED STATES v. GOULD 13
that "[b]ecause Maryland has not met any of these mandates,
[he] had no duty to register under SORNA and could not be
legally punished under 18 U.S.C. § 2250 for violating the
Act." As an extension of this argument, Gould also argues
that punishing him for violating SORNA, a law with which he
was unable to comply, would violate the Due Process Clause.

Gould’s argument bootstraps on his first argument, that
because Maryland has not implemented SORNA, he is unable
to register there in compliance with SORNA. But, as we
pointed out in Part II above, a sex offender is able to register
under SORNA if he is able to register by means of an existing
state registration facility, even if he was released before
SORNA was enacted. This was clarified by the Attorney Gen-
eral’s Interim Regulations and the National Guidelines. The
National Guidelines provide:

SORNA applies to all sex offenders, including those
convicted of their registration offenses prior to the
enactment of SORNA or prior to particular jurisdic-
tions’ incorporation of the SORNA requirements
into their programs. Jurisdictions are specifically
required to register such sex offenders if they remain
in the system as prisoners, supervisees, or regis-
trants, or if they later reenter the system because of
conviction for some other crime (whether or not the
new crime is a sex offense).

National Guidelines, 73 Fed. Reg. at 38063. The National
Guidelines also state that SORNA is to be applied to sex
offenders who "are already registered or subject to a pre-
existing sex offender registration requirement under the juris-
diction’s law." Id. at 38046 (emphasis added). Maryland had
a sex-offender registration facility, and Gould was required to
register in Maryland in accordance with preexisting Maryland
law. Indeed, Gould stipulated when he pleaded guilty in this
case that Maryland law required him to register in Maryland
and that he "knowingly failed to register" there.
14 UNITED STATES v. GOULD
Gould was thus not a sex offender who fell into the narrow
class of offenders "unable to comply" with initial registration.
See 42 U.S.C. § 16913(d). He could be a member of that lim-
ited class of persons only if he were one who was required to
register under SORNA but who was not previously required
to register under state law. See, e.g., Hinckley, 550 F.3d at
933, 934 n.6 (holding that "sex offenders unable to comply
with subsection (b)" are "currently unregistered offenders
with dated convictions that might not be able to comply with
the initial registration requirements" (emphasis added));
United States v. Lawrance, 548 F.3d 1329, 1336 (10th Cir.
2008) (maintaining that the defendant was not an offender
unable to initially register because he "was convicted of a sex-
ual offense in July 2002, was informed of his duty to register
as a sex offender, and did so in Arizona"—even though he
was released from prison prior to SORNA’s enactment);
United States v. Waybright, 561 F. Supp. 2d 1154, 1171 (D.
Mont. 2008) (noting that "the definition of ‘sex offense’ under
SORNA is broader than under most states’ current registration
laws").

In short, Gould was fully aware of his registration duties
and was able to comply with them. He registered in West Vir-
ginia and in Pennsylvania, and he was convicted in West Vir-
ginia for failing to update his registration there. In addition,
he stipulated that he received a letter from Pennsylvania offi-
cials reminding him of his registration duties. Finally, he stip-
ulated that he knew he was required to register in Maryland
and knowingly failed to do so.

SORNA made Gould’s knowing failure to register in Mary-
land, a place where he resided, a federal offense. As the Attor-
ney General stated, in promulgating his Interim Regulations:

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.
 UNITED STATES v. GOULD 15
***

In contrast to SORNA’s provision of a three-year
grace period for jurisdictions to implement its
requirements, SORNA’s direct federal law registra-
tion requirements for sex offenders are not subject to
any deferral of effectiveness. They took effect when
SORNA was enacted on July 27, 2006, and currently
apply to all offenders in the categories for which
SORNA requires registration.

72 Fed. Reg. at 8895 (emphasis added). The "initial registra-
tion" provisions of SORNA, as construed by the Interim Reg-
ulations, simply do not provide Gould with a defense based
on an inability to register before completion of his sentence.
He was able to register in Maryland when he moved there
after SORNA was enacted.

V

Gould contends that he cannot be punished under 18 U.S.C.
§ 2250(a) for "knowingly" failing to register under SORNA
because the government did not inform him of SORNA’s
requirements as mandated by the Act’s notice provision. See
42 U.S.C. § 16917. Because 18 U.S.C. § 2250(a) requires a
knowing violation as an element of the offense, the essence
of Gould’s argument is that the government did not allege a
prima facie violation of § 2250(a). For a defendant to be con-
victed of failing to register, he must "knowingly fail[ ] to reg-
ister or update a registration as required by [SORNA]." 18
U.S.C. § 2250(a)(3) (emphasis added). Gould argues that even
though he knew he was violating Maryland law by failing to
register, he did not know that he was violating SORNA.

This argument, however, overlooks the fact that SORNA’s
criminal provision is not a specific intent law. In 18 U.S.C.
§ 2250(a), "knowingly" modifies "fails to register." There is
no language requiring specific intent or a willful failure to
16 UNITED STATES v. GOULD
register such that he must know his failure to register violated
federal law. See Bryan v. United States, 524 U.S. 184, 192-93
(1998) (noting that "the term ‘knowingly’ does not necessar-
ily have any reference to a culpable state of mind or to knowl-
edge of the law" and that "the term ‘knowingly’ merely
requires proof of knowledge of the facts that constitute the
offense"). And as a general matter, ignorance of the law does
not provide a defense, for the law presumes that every person
knows the law. See Cheek v. United States, 498 U.S. 192, 199
(1991). To assume otherwise would lead to the inability to
enforce criminal provisions against persons not learned in the
law or unaware of specific statutes.

Gould argues further that even in the absence of actual
notice of criminal liability, due process requires that a statute
not criminalize "wholly passive conduct." Like the defendant
in Lambert v. California, 355 U.S. 225, 228 (1957), Gould
claims that he is being prosecuted for wholly passive conduct
—i.e., his failure to register. In Lambert, when considering a
city ordinance that required all felons to register, the Supreme
Court noted that "circumstances which might move [a felon]
to inquire as to the necessity of registration are completely
lacking" with respect to such a law. Id. at 229.

Unlike an isolated city ordinance that requires all members
of the broad class of all felons to register, however, SORNA
criminalizes the failure to register of a much more narrowly
targeted class of persons in a context where sex-offender reg-
istration has been the law for years and Gould knew that.
When SORNA was enacted, every State had registration
requirements for sex offenders. Moreover, as we pointed out,
Gould registered in West Virginia and Pennsylvania, was con-
victed in West Virginia for failing to update his registration,
and was notified by letter in Pennsylvania of his continuing
duties to register and update his registration. In addition, he
stipulated in this case that he knowingly failed to register in
Maryland. These circumstances do not allow for the conclu-
sion that Gould’s due process rights, based on lack of notice,
 UNITED STATES v. GOULD 17
were violated. See United States v. May, 535 F.3d 912, 921
(8th Cir. 2008) (holding that notice of the duty to register
under state law provides notice of the duty to register under
SORNA); Hinckley, 550 F.3d at 938 (same); see also Gould,
526 F. Supp. 2d at 544 n.8 (collecting cases).

VI

Gould also contends that Interim Regulation 72.3, 28
C.F.R. § 72.3 (2007), which clarified that SORNA applied to
those convicted before SORNA was enacted, was promul-
gated in violation of the Administrative Procedure Act
("APA"), specifically 5 U.S.C. § 553, because it was promul-
gated without providing the required 30-day notice for com-
ment and because the Attorney General’s reliance on the
"good cause" exception to the notice and comment require-
ment was misplaced. Gould points out that "when the regula-
tion was issued, the federal [Jacob] Wetterling Act (Megan’s
Law) as well as state registration laws were already in effect
and carried criminal penalties to sufficiently protect the pub-
lic," obviating the "good cause" relied on by the Attorney
General.

The APA requires that notice of a proposed rule be given
by publication in the Federal Register, 5 U.S.C. § 553(b), and
that publication be accomplished in accordance with law "not
less than 30 days before [the rule’s] effective date, except . . .
as otherwise provided by the agency for good cause found and
published with the rule," id. § 553(d)(3). If the agency relies
on the good cause exception, it must include a "brief state-
ment" for finding that the notice and service are "impractica-
ble, unnecessary, or contrary to the public interest." Id.
§ 553(b)(B). Judicial review requires that the good cause
exception be construed narrowly. See Utility Solid Waste
Activities Group v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001).

In this case, the Attorney General issued the Interim Regu-
lations on February 28, 2007, without notice and comment,
18 UNITED STATES v. GOULD
invoking the good cause exception. 72 Fed. Reg. at 8896-97.
The Attorney General explained:

The immediate effectiveness of this rule is necessary
to eliminate any possible uncertainty about the appli-
cability of the Act’s requirements—and related
means of enforcement, including criminal liability
under 18 U.S.C. § 2250 for sex offenders who know-
ingly fail to register as required—to sex offenders
whose predicate convictions predate the enactment
of SORNA. 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 reg-
ister through prosecution and the imposition of crim-
inal 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 regis-
tered 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 offend-
ers," 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.

Id.

In the circumstances, we conclude that the Attorney Gen-
eral had good cause to invoke the exception to providing the
30-day notice. There was a need for legal certainty about
 UNITED STATES v. GOULD 19
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 Attor-
ney 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).

VII

Finally, Gould contends that SORNA is unconstitutional as
exceeding Congress’ power under the Commerce Clause "be-
cause regulating registration within a state is a purely local
intrastate activity that does not substantially affect interstate
commerce."

As noted above, the elements of a SORNA failure-to-
register offense under 18 U.S.C. § 2250(a) are that the defen-
dant (1) was required to register under 42 U.S.C. § 16913(a);
(2) was previously convicted of a sex offense under District
of Columbia law or traveled in interstate commerce; and (3)
knowingly failed to register as required by § 16913(a). Thus,
even if the act of failing to register is a local activity, that ele-
ment alone does not amount to a violation of the offense. The
defendant must also travel in interstate commerce. See 18
U.S.C. § 2250(a)(2)(B).5 This is hardly different from—
5
Section 2250(a) justifies federal jurisdiction for a SORNA failure-to-
register offense also by reason of a defendant’s conviction for a sex
offense under federal or District of Columbia law. See 18 U.S.C.
§ 2250(a)(2)(A). Even though Gould also satisfies this basis for jurisdic-
tion, we need not address it because Gould traveled in interstate com-
merce.
20 UNITED STATES v. GOULD
indeed more clearly implicates interstate commerce than—the
local act of engaging a person under 18 years of age in a com-
mercial sex act, which is criminalized under federal law in 18
U.S.C. § 1591 when the conduct or its circumstances are in or
affect interstate commerce. See also 18 U.S.C. § 922(g) (ille-
gal possession of a firearm); 18 U.S.C. § 1201 (kidnapping);
Hobbs Act, 18 U.S.C. § 1951 (robbery and extortion); 18
U.S.C. § 2261 (domestic violence); 18 U.S.C. § 2313 (sale or
receipt of a stolen motor vehicle); Mann Act, 18 U.S.C.
§ 2421 et seq. (prostitution). In these statutes, Congress regu-
lated local conduct in the circumstance when the conduct
implicated interstate commerce. Similarly, even if a failure to
register is a local act, Congress can regulate it when it impli-
cates the Commerce Clause.

Under the Commerce Clause, Congress has authority to
regulate (1) "the use of the channels of interstate commerce,"
(2) "the instrumentalities of interstate commerce, or persons
or things in interstate commerce, even though the threat may
come only from intrastate activities," and (3) "those activities
having a substantial relation to interstate commerce." United
States v. Morrison, 529 U.S. 598, 609 (2000) (emphasis
added) (quoting United States v. Lopez, 514 U.S. 549, 558-59
(1995)) (internal quotation marks omitted).

Thus, Congress has "the authority . . . to keep the channels
of interstate commerce free from immoral and injurious uses."
Caminetti v. United States, 242 U.S. 470, 491 (1917) (uphold-
ing against a Commerce Clause challenge the Mann Act,
which prohibited the transport of women "in interstate com-
merce" for an immoral purpose); see also Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)
(upholding against a Commerce Clause challenge the consti-
tutionality of Title II of the Civil Rights Act of 1964, which
banned racial discrimination in public accommodations, not-
ing that the Commerce Clause allows "Congress to keep the
channels of interstate commerce free from immoral and injuri-
ous uses" (quoting Caminetti, 242 U.S. at 491)). Indeed we
 UNITED STATES v. GOULD 21
have applied these principles to uphold analogous statutes. In
United States v. Bailey, 112 F.3d 758 (4th Cir. 1997), we
upheld the interstate domestic violence statute, 18 U.S.C.
§ 2261(a), making it illegal to travel across a state line "with
the intent to injure, harass, or intimidate" a spouse or intimate
partner and intentionally commit a crime of violence against
that person, as validly enacted pursuant to Congress’ Com-
merce Clause authority because "[t]he statute requires the
crossing of a state line, thus placing the transaction squarely
in interstate commerce." Bailey, 112 F.3d at 766.

Congress also has the authority to regulate persons in inter-
state commerce, especially persons who move from the State
of conviction to another State and there fail to register, as they
use "instrumentalities of interstate commerce." See United
States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009);
Lawrance, 548 F.3d at 1337 ("SORNA clearly intends to reg-
ulate interstate activity, i.e., the evasion of sex offender regis-
tration requirements by sex offenders who have crossed
jurisdictional lines").

Gould contends, however, that because § 2250(a) "does not
mandate any nexus between the act of failing to register and
interstate travel," § 2250(a)(2)(B) invokes unlimited power
because almost everyone at some point travels in interstate
commerce. He argues that "the mere fact that the individual
has, at some point, traveled in interstate commerce does not
establish that his or her subsequent failure to register ‘sub-
stantially affects interstate commerce.’" But SORNA is not so
expansive. It requires additional elements and a specific
sequence. To satisfy the commerce component of § 2250(a),
a sex offender must have been convicted of a qualifying sex
offense and, after conviction, traveled to another State and
failed to register or maintain his registration. There must be
a conviction that gives rise to the registration requirement,
subsequent interstate travel, and a failure to register. In this
case, Gould satisfied these elements and his interstate travel
followed his conviction of a sex offense that gave rise to his
22 UNITED STATES v. GOULD
requirement to register in Maryland. Thus he was properly
convicted under § 2250(a).

Our conclusion that § 2250(a) does not violate the Com-
merce Clause is also consistent with decisions of other cir-
cuits that have reached this issue. See Ambert, 561 F.3d at
1210-12 (upholding § 2250(a) "under either of the first two
Lopez categories because it regulates both the use of channels
of interstate commerce and the instrumentalities of interstate
commerce" and upholding § 16913(a) because the section "is
reasonably adapted to the attainment of a legitimate end under
the commerce clause"); Hinckley, 550 F.3d at 939-40 (reject-
ing defendant’s challenge to § 2250(a) under the Commerce
Clause because he was a "‘person . . . in interstate commerce,’
[and] he also used the channels of interstate commerce on a
daily basis" and because "the Commerce Clause allows Con-
gress to keep the channels of interstate commerce free from
immoral and injurious uses" (internal quotation marks omit-
ted)); May, 535 F.3d at 921 ("SORNA thus derives its author-
ity from each prong of Lopez—and most specifically, the
ability to regulate ‘persons or things in interstate commerce’
and ‘the use of the channels of interstate commerce.’ May
was undeniably a ‘person . . . in interstate commerce’ in that
he traveled and relocated between various states, and traveled
among many other states . . . via the ‘use of the channels of
interstate commerce’"); see also Dixon, 551 F.3d at 583 (sum-
marily rejecting defendant’s Commerce Clause argument,
noting that the defendant "must in the heat of argument have
forgotten the Mann Act"); see also United States v. Howell,
552 F.3d 709, 714-17 (8th Cir. 2009) (upholding the constitu-
tionality of § 16913(a) as a "rational and appropriate means to
further Congress’s regulation of interstate commerce").

Beyond regulating the channels and instrumentalities of
commerce in criminalizing the failure to register, Congress
also devised "a comprehensive national system" for the regis-
tration of sex offenders, see 42 U.S.C. § 16901, drawing on
its commerce power, although not explicitly, as it did in
 UNITED STATES v. GOULD 23
§ 2250(a). This absence of an explicit reference to the com-
merce power does not, however, render unconstitutional the
national system so long as the enactment addresses a problem
that substantially affects interstate commerce. As the Supreme
Court observed:

While congressional findings are certainly helpful in
reviewing the substance of a congressional statutory
scheme, particularly when the connection to com-
merce is not self-evident, and while we will consider
congressional findings in our analysis when they are
available, the absence of particularized findings does
not call into question Congress’ authority to legis-
late.

Gonzales v. Raich, 545 U.S. 1, 21 (2005). The question
remains whether Congress properly exercised its power to
regulate "those activities that substantially affect interstate
commerce." Lopez, 514 U.S. at 559; see also Raich, 545 U.S.
at 17; Wickard v. Filburn, 317 U.S. 111, 125 (1942) ("But
even if appellee’s activity be local and though it may not be
regarded as commerce, it may still, whatever its nature, be
reached by Congress if it exerts a substantial economic effect
on interstate commerce . . ."). In resolving this question, a
court determines whether Congress had a rational basis for a
statute’s enactment. See Raich, 545 U.S. at 22 ("In assessing
the scope of Congress’ authority under the Commerce Clause,
. . . [w]e need not determine whether respondents’ activities,
taken in the aggregate, substantially affect interstate com-
merce in fact, but only whether a ‘rational basis’ exists for so
concluding" (quoting Lopez, 514 U.S. at 557)).

In establishing a comprehensive national system for regis-
tration of sex offenders, Congress recognized that sex offend-
ers constitute a unique class of criminal insofar as members
of that class are considered to have higher rates of recidivism
than other offenders. See H.R. Rep. No. 109-218, pt. 1, at 22-
23 (2005) (finding that "[s]ex offenders have recidivism rates
24 UNITED STATES v. GOULD
that often exceed those of other criminals"); Patrick A. Lan-
gan et al., U.S. Dep’t of Justice, Recidivism of Sex Offenders
Released from Prison in 1994, at 24 (2003), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/rsorp94.pdf (reporting a
5.3% recidivism rate for 9,691 sex offenders released in 1994
within three years); R. Karl Hanson & Monique T. Bussiere,
Predicting Relapse: A Meta-Analysis of Sexual Offender
Recidivism Studies, 66 J. of Consulting & Clinical Psychol.
348, 351 (1998) (surveying studies showing a recidivism rate
averaging 13.4%); Marnie E. Rice & Grant T. Harris, What
Population and What Question?, 48 Canadian J. of Criminol-
ogy & Crim. Just. 95, 97-99 (2006) (discussing recidivism
rates of 24% or higher in various studies). Congress was also
dealing with an extensive interstate movement of recidivists
seeking to avoid state-created registration requirements.
When the high incidence of recidivism is coupled with the
interstate movement of sex offenders intending to avoid state
registration or to seek more lax registration requirements,
Congress could rationally perceive a need to create national
standards for sex-offender registration and notification.

In 1994, Congress enacted the Jacob Wetterling Act, 42
U.S.C. § 14071 et seq., which encouraged States to create
facilities for the registration of sex offenders and for notifica-
tion to law enforcement officers of registration data. As a
result of the Jacob Wetterling Act, all States and the District
of Columbia established sex-offender registration programs,
although different in nature and scope. In addition, through
subsequent amendments to the Jacob Wetterling Act, Con-
gress also established a national database at the FBI. See 42
U.S.C. § 14072.

Some 10 years later, however, Congress found that the
patchwork of standards that resulted from the various state
programs and piecemeal amendments had left loopholes and
gaps that allowed for numerous heinous crimes. Moreover,
crimes committed by previously convicted sexual offenders
were increasing in number, and those required to register
 UNITED STATES v. GOULD 25
under state laws were "disappearing." Congress determined
that the patchwork should be replaced with a new comprehen-
sive set of national standards, as The National Guidelines
explain:

While sex offender registration and notification in
the United States are generally carried out through
programs operated by the individual states and other
non-federal jurisdictions, their effectiveness depends
on also having effective arrangements for tracking of
registrants as they move among jurisdictions and
some national baseline of registration and notifica-
tion standards. In a federal union like the United
States with a mobile population, sex offender regis-
tration could not be effective if registered sex
offenders could simply disappear from the purview
of the registration authorities by moving from one
jurisdiction to another, or if registration and notifica-
tion requirements could be evaded by moving from
a jurisdiction with an effective program to a nearby
jurisdiction that required little or nothing in terms of
registration and notification.

National Guidelines, 73 Fed. Reg. at 38045. These observa-
tions were well supported by the concerns expressed by Con-
gress in the debates leading up to the enactment of SORNA.
Legislators repeatedly criticized state "loopholes," "dispari-
ties," and "deficiencies," which allowed an excess of 100,000
registrants to become "lost." See, e.g., H.R. Rep. No. 109-218,
pt. 1, at 23-24 (2005); 151 Cong. Rec. H7887, H7889 (daily
ed. Sept. 14, 2005) (statement of Rep. Green); id. at H7893
(statements of Rep. Royce and Rep. Graves); 152 Cong. Rec.
S8012, S8018 (daily ed. July 20, 2006) (statement of Sen.
Allen); id. at S8020 (statement of Sen. Cantwell); id. at S8022
(statement of Sen. DeWine); id. at S8030 (statement of Sen.
Frist); House Bills on Sexual Crimes Against Children: Hear-
ing on H.R. 764, H.R. 95, H.R. 1355, H.R. 1505, H.R. 2423,
H.R. 244, H.R. 2796, and H.R. 2797 Before the Subcomm. on
26 UNITED STATES v. GOULD
Crime, Terrorism, and Homeland Security of the H. Comm.
on the Judiciary ("House Bills on Sexual Crimes Against
Children"), 109th Cong. 1, 9-11 (2005) (statement of Rep.
Poe); id. at 11-13 (statement of Rep. Brown-Waite). Empha-
sizing the interstate nature of the sex-offender problem, Sena-
tor Orrin Hatch, a co-sponsor of SORNA, explained the
importance of creating uniform standards for the registration
of sex offenders:

This is critical to sew together the patch-work quilt
of 50 different State attempts to identi[f]y and keep
track of sex offenders. . . . Laws regarding registra-
tion for sex offenders have not been consistent from
State to State[;] now all States will lock arms and
present a unified front in the battle to protect chil-
dren. Web sites that have been weak in the past, due
to weak laws and haphazard updating and based on
inaccurate information, will now be accurate,
updated and useful for finding sex offenders.

152 Cong. Rec. S8012, S8012-13 (daily ed. July 20, 2006)
(statement of Sen. Hatch). Senator Joseph Biden, another co-
sponsor, stated: "This is about uniting 50 States in common
purpose and in league with one another to prevent these
lowlifes from slipping through the cracks." Id. at S8013
(statement of Sen. Biden). Senator Arlen Specter observed
that the state laws alone "proved to be relatively ineffective,
which requires the Federal Government to act on the national
level." Id. at S8029 (statement of Sen. Specter). And Repre-
sentative Ginny Brown-Waite emphasized that "Congress has
a duty to act and to protect our children nationwide, because
these predators move from state to state." House Bills on Sex-
ual Crimes Against Children, at 13 (statement of Rep. Brown-
Waite).

A concern was also expressed that sex offenders "forum-
shop" for States with lax registration laws. Ernie Allen, Presi-
dent and CEO of the National Center for Missing and
 UNITED STATES v. GOULD 27
Exploited Children, testified before the House Judiciary Com-
mittee that the lack of "consistency" and "uniformity" in state
registration laws allowed sex offenders to "forum-shop"
among States:

The public has a right to know about all registered
sex offenders living in our communities. The amount
of protection a child is given shouldn’t depend on
the state in which that child lives. There is clearly a
need for more uniformity among state programs of
community notification of sex offenders.

Protecting Our Nation’s Children from Sexual Predators and
Violent Criminals: What Needs To Be Done? Hearing Before
the Subcomm. on Crime, Terrorism, and Homeland Security
of the H. Comm. on the Judiciary, 109th Cong. 19 (2005)
(statement of Ernie Allen).

Thus, Congress, motivated by a desire to prevent sex
offenders from traveling among the States to avoid state regis-
tration, used its commerce power to enact a national program
mandating stronger and the more comprehensive registration
system, as contained in SORNA. And in SORNA, it so stated:

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 vic-
tims listed below, Congress in this Act establishes a
comprehensive national system for the registration of
those offenders: [listing the names of 17 victims].

42 U.S.C. § 16901 (emphasis added).

Even though the comprehensive federal registration system
created by SORNA may implicate a sex offender who does
not cross state lines, the potential for recidivism and flight
across state lines of all sex offenders is sufficiently real and
substantial to be taken as a serious and extensive part of the
28 UNITED STATES v. GOULD
larger interstate problem, justifying the comprehensive regu-
lation. "The question is not simply whether one particular
offense has a measurable impact upon interstate commerce,
but whether the relevant class of acts has such an impact."
United States v. Williams, 342 F.3d 350, 355 (4th Cir. 2003)
(upholding the Hobbs Act under the Commerce Clause).
Requiring all sex offenders to register is an integral part of
Congress’ regulatory effort and "the regulatory scheme could
be undercut unless the intrastate activity were regulated."
Raich, 545 U.S. at 24-25 (quoting Lopez, 514 U.S. at 561);
see also Hodel v. Indiana, 452 U.S. 314, 329 n.17 (1981) ("A
complex regulatory program . . . can survive a Commerce
Clause challenge without a showing that every single facet of
the program is independently and directly related to a valid
congressional goal. It is enough that the challenged provisions
are an integral part of the regulatory program and that the reg-
ulatory scheme when considered as a whole satisfies this
test").

In sum, we find no basis to support Gould’s contention that
§ 2250(a), criminalizing his failure to register, violates the
Commerce Clause.

The judgment of the district court is

AFFIRMED.

MICHAEL, Circuit Judge, dissenting:

The Sex Offender Registration and Notification Act
(SORNA or Act), 42 U.S.C. § 16901 et seq., delegates sub-
stantial rulemaking authority to the United States Attorney
General. Under § 113(d) the Attorney General is granted "the
authority to specify the applicability of the requirements of
[the Act] to sex offenders convicted before July 27, 2006 or
[SORNA’s] implementation in a particular jurisdiction" and
the authority "to prescribe rules for the registration of any
such sex offenders and for other categories of sex offenders
 UNITED STATES v. GOULD 29
who are unable to comply with" the Act’s initial registration
requirements. 42 U.S.C. § 16913(d) (2006). Section 112(b)
further directs the Attorney General to "issue guidelines and
regulations to interpret and implement" the Act. 42 U.S.C.
§ 16912(b).

The Attorney General does not dispute that, in exercising
his rulemaking authority under each of these provisions, he
was subject to the procedural requirements of the Administra-
tive Procedure Act (APA), 5 U.S.C. § 551 et seq. Nor does he
dispute that he failed to comply with the APA’s procedures
when he promulgated, pursuant to § 113(d), the rule regarding
SORNA’s retroactivity and applicability in pre-
implementation jurisdictions. Because the Attorney General’s
justification for non-compliance with the APA was inade-
quate, the rule promulgated under § 113(d) (codified at 28
C.F.R. § 72.3) is invalid. And because Gould’s prosecution
under SORNA depends upon this invalid rule, I respectfully
dissent from the majority’s decision to affirm Gould’s convic-
tion under the Act.

I.

Section 113(a) of SORNA provides that: "A sex offender
shall register, and keep the registration current, in each juris-
diction where the offender resides, where the offender is an
employee, and where the offender is a student." 42 U.S.C.
§ 16913(a). The statute, however, expressly leaves unresolved
the issue of its applicability to sex offenders, like Gould,
whose convictions predate the enactment of SORNA or its
implementation in particular jurisdictions. See 42 U.S.C.
§ 16913(d). Section 113(d) further authorizes the Attorney
General "to prescribe rules for the registration of such sex
offenders and for other categories of sex offenders who are
unable to comply with" SORNA’s initial registration require-
ments. 42 U.S.C. § 16913(d). Because SORNA, as enacted,
did not specify its application to past sex offenders, Gould
was not subject to prosecution under the Act until the Attor-
30 UNITED STATES v. GOULD
ney General made this determination. See United States v.
Hatcher, 560 F.3d 222 (4th Cir. 2009).

Pursuant to his rulemaking authority under § 113(d), the
Attorney General issued an "interim rule" on February 28,
2007, clarifying that "the requirements of [SORNA] apply to
all sex offenders (as defined in that Act), including those con-
victed of the offense for which registration is required prior
to the enactment of the Act." 72 Fed. Reg. 8894, 8896 (Feb.
28, 2007) (codified at 28 C.F.R. § 72.3 (2007)). The Attorney
General explained that:

In contrast to SORNA’s provision of a three-year
grace period for jurisdictions to implement its
requirements, SORNA’s direct federal law registra-
tion requirements for sex offenders are not subject to
any deferral of effectiveness. They took effect when
SORNA was enacted on July 27, 2006, and currently
apply to all offenders in the categories for which
SORNA requires registration.

72 Fed. Reg. at 8895.

In issuing the interim rule, the Attorney General declined
to comply with the public notice and comment procedures
required under the APA. Subsection 553(b) of the APA
broadly requires that notice of all proposed rules be published
in the Federal Register. 5 U.S.C. § 553(b). Subsection 553(c)
further provides that:

After notice required by this section, the agency
shall give interested persons an opportunity to partic-
ipate in the rule making through submission of writ-
ten data, views, or arguments with or without
opportunity for oral presentation. After consideration
of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general
statement of their basis and purpose.
 UNITED STATES v. GOULD 31
5 U.S.C. § 553(c). Except as provided by statute, the require-
ments of notice and comment rulemaking pursuant to
§ 553(b) and (c) do not apply:

(A) to interpretative rules, general statements of
policy, or rules of agency organization, procedure, or
practice; or

(B) when the agency for good cause finds (and
incorporates the finding and a brief statement of rea-
sons therefor in the rules issued) that notice and pub-
lic procedure thereon are impracticable, unnecessary,
or contrary to the public interest.

5 U.S.C. § 553(b)(A), (B). The APA also requires the publica-
tion of any substantive rule at least thirty days before its
effective date, 5 U.S.C. § 553(d), except where the rule is
interpretive, where the rule grants an exception or relieves a
restriction, or "as otherwise provided by the agency for good
cause found and published with the rule," id.

The Attorney General relied upon the good cause exception
in § 553(b)(B) to excuse the lack of public notice and com-
ment for the interim rules. He likewise relied on the good
cause exception in § 553(d)(3) to excuse delaying implemen-
tation of the rule. He claimed that notice and comment was
"impracticable, unnecessary, or contrary to the public inter-
est" as provided in 5 U.S.C. § 553(b)(B), explaining that:

The immediate effectiveness of this rule is neces-
sary 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 know-
ingly fail to register as required—to sex offenders
whose predicate convictions predate the enactment
of SORNA. Delay in the implementation of this rule
would impede the effective registration of such sex
32 UNITED STATES v. GOULD
offenders and would impair immediate efforts to
protect the public from sex offenders who fail to reg-
ister through prosecution and the imposition of crim-
inal 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 regis-
tered 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 offend-
ers," 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.

It would accordingly be contrary to the public
interest to adopt this rule with the prior notice and
comment period normally required under 5 U.S.C.
553(b) or with the delayed effective date normally
required under 5 U.S.C. 553(d).

72 Fed. Reg. at 8896-97.

Although the interim rule was accompanied by a request
for post-promulgation comments, the Attorney General never
published a response to any comments that he may have
received. The Attorney General also sought comments in the
Federal Register notice for the proposed guidelines under
§ 112(b), see 72 Fed. Reg. 30210, 30210 (May 30, 2007), and
did address these comments in the final guidelines issued on
July 2, 2008, see 73 Fed. Reg. 38030, 38030-32 (July 2,
2008).
 UNITED STATES v. GOULD 33
Because the Attorney General lacked sufficient justification
for failing to comply with the APA’s notice and comment
requirements in promulgating the rule under § 113(d) (28
C.F.R. § 72.3), the rule is invalid and may not serve as the
basis for Gould’s prosecution and conviction under SORNA.

A.

The bar for invoking § 553(b)(B)’s good cause exception is
a high one: "The exception excuses notice and comment in
emergency situations, or where delay could result in serious
harm." Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004)
(internal citation removed); see also Nat’l Nutritional Foods
Ass’n v. Kennedy, 572 F.2d 377, 384 (2d Cir. 1978) ("The
legislative history of the Administrative Procedure Act dem-
onstrates that Congress intended the exceptions in § 553(b)(B)
to be narrow ones."). "If conclusory statements that normal
procedures were not followed because of the need to provide
immediate guidance and information constituted ‘good
cause,’ then an exception to the notice requirement would be
created that would swallow the rule." Zhang v. Slattery, 55
F.3d 732, 746, 747 (2d Cir. 1995) (internal quotations and
alterations omitted) (noting that "a largely conclusory state-
ment" that a rule’s "immediate promulgation is necessary in
order to benefit the greatest number of" affected parties "is
not enough" because, "[p]resumably, agencies deem all their
rules beneficial; the notice and comment requirement would
be a dead letter if compliance could be excused whenever the
beneficial effect would thereby be accelerated").

Courts have therefore "looked askance at agencies’
attempts to avoid the standard notice and comment proce-
dures, holding that exceptions under § 553 must be ‘narrowly
construed and only reluctantly countenanced’ in order to
assure that ‘an agency’s decisions will be informed and
responsive.’" Asiana Airlines v. FAA, 134 F.3d 393, 396
(D.C. Cir. 1998) (quoting N.J. Dep’t of Envtl. Prot. v. EPA,
626 F.2d 1038, 1045 (D.C. Cir. 1980)).
34 UNITED STATES v. GOULD
In promulgating the February 28, 2007, rule, the Attorney
General elected to rely on the public interest element of
§ 553(b)(B)’s good cause exception. "[T]he Attorney Gener-
al’s Manual states that [the public interest exception] ‘con-
notes a situation in which the interest of the public would be
defeated by any requirement of advance notice,’ as when
announcement of a proposed rule would enable the sort of . . .
manipulation the rule sought to prevent." Util. Solid Waste
Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001)
(quoting U.S. Dept. of Justice, Attorney General’s Manual on
the Administrative Procedure Act 31 (1947)). We must there-
fore consider whether the public interest would have been
defeated by allowing notice and comment before promulgat-
ing the interim rule.

The Attorney General argues that the public interest would
be harmed by delay. Specifically, he contends that delay
"would impede the effective registration of [ ] sex offenders
[to whom coverage was extended under the interim rule] and
would impair immediate efforts to protect the public from sex
offenders who fail to register through prosecution and the
imposition of criminal sanctions." 72 Fed. Reg. at 8896.
According to the Attorney General, SORNA’s objective of
protecting the public from sex offenders and specified offend-
ers against children would be thwarted by delay "because a
substantial class of sex offenders could evade the Act’s regis-
tration requirements and enforcement mechanisms during the
pendency of a proposed rule and delay in the effectiveness of
a final rule." Id. at 8897. This purported justification does not
withstand examination.

First, the Attorney General’s declaration in 28 C.F.R.
§ 72.3 that SORNA applies retroactively and applies in juris-
dictions that have yet to implement the Act did not have the
immediate effect of compelling any additional sex offenders
to register; nor did it provide any additional registration infor-
mation either to states or to the federal government. The
announcement of the rule merely allowed the federal govern-
 UNITED STATES v. GOULD 35
ment to prosecute under SORNA sex offenders who were cur-
rently violating state registration laws and thus were already
subject to prosecution under existing state laws. The Attorney
General’s July 2, 2008, final guidance makes clear that if
Maryland had lacked an existing registry or if Gould’s crime
required registration under SORNA but not under Maryland’s
existing law, Gould would not be required to register until
Maryland had affirmatively taken steps to register him,
including "fully instructing [him] about the SORNA require-
ments, obtaining signed acknowledgments of such instruc-
tions, and obtaining and entering into the registry all
information about [him] required under SORNA." 73 Fed.
Reg. at 38063. These steps could not occur until Maryland
elected to implement SORNA, a decision Maryland was
granted up to five years to make. See 42 U.S.C. § 16924.

Further, under the Jacob Wetterling Crimes Against Chil-
dren and Sexually Violent Offender Registration Program
(Megan’s Law), 42 U.S.C. § 14071 et seq., the federal gov-
ernment already possessed the power to prosecute many of
the sex offenders who became subject to prosecution under
SORNA following the promulgation of 28 C.F.R. § 72.3.
Under Megan’s Law, which remains in effect until at least
July 27, 2009, see 42 U.S.C. § 16924(a), 16929, the federal
government has the authority to prosecute essentially any
offender who would be subject to prosecution under SORNA
based upon his interstate movement. Compare 42 U.S.C.
§ 14072(g), (i) (Megan’s Law) (providing for federal criminal
prosecution of any person who knowingly fails to register
under a state’s sexual offender registration program and who
changes address to another state) with 18 U.S.C. § 2250(a)
(SORNA) (providing for prosecution of any sex offender who
knowingly fails to register or update a registration as required
by SORNA and "travels in interstate or foreign commerce, or
enters or leaves, or resides in, Indian country").

Second, the Attorney General’s assertion that harm to the
general public would result from delay assumes that it was
36 UNITED STATES v. GOULD
inevitable that he would declare that SORNA applied retroac-
tively and in pre-implementation jurisdictions. If the Attorney
General had promulgated a rule that SORNA does not apply
to past sex offenders or those in pre-implementation jurisdic-
tions, no possible harm to the public would have resulted
from the delay; these offenders would never have become
subject to federal prosecution under SORNA. In contrast, past
sex offenders were undoubtedly harmed by the Attorney Gen-
eral’s decision not to consider their views in promulgating the
interim rule.

Third, to the extent the Attorney General believed that
delay must be avoided to "eliminate any possible uncertainty
about the applicability of the Act’s requirements" (particularly
for jurisdictions considering whether to implement SORNA’s
requirements), he significantly undercut this rationale by
requesting post-promulgation comments on 28 C.F.R. § 72.3.
If post-promulgation input was solicited out of a genuine
interest in considering the public’s views regarding the appli-
cability and implementation of SORNA, it would have made
considerably more sense for the Attorney General to have
requested the comments prior to promulgating the interim
rule, as the APA requires. This is especially true because the
possibility of an alteration to the interim rule after its promul-
gation increases rather than eliminates uncertainty.

On the other hand, if the Attorney General was not genu-
inely interested in considering the public’s views, requesting
post-promulgation comments makes a sham of the APA’s
rulemaking procedures. Indeed, "[i]t is antithetical to the
structure and purpose of the APA for an agency to implement
a rule first, and then seek comment later." Paulsen v. Daniels,
413 F.3d 999, 1005 (9th Cir. 2005). This is so because
"[s]ection 553 is designed to give affected parties an opportu-
nity to participate in agency decisionmaking early in the pro-
cess, when the agency is more likely to consider alternative
ideas." N. Arapahoe Tribe v. Hodel, 808 F.2d 741, 751 (10th
Cir. 1987). "Notice and comment procedures afford interested
 UNITED STATES v. GOULD 37
parties a meaningful opportunity to participate in the rulemak-
ing process and assure that an agency’s decisions will be
informed and responsive." Mobil Oil Corp. v. Dept. of
Energy, 728 F.2d 1477, 1490 (Temp. Emer. Ct. App. 1983).

In U.S. Steel Corp. v. EPA, 595 F.2d 207 (5th Cir. 1979),
the Environmental Protection Agency (EPA) advanced the
argument that "despite its lack of literal compliance with
§ 553 [it] satisfied the intent of § 553 by accepting post-
promulgation comments and keeping an open mind about
revisions." Id. at 214. The Fifth Circuit disagreed:

The EPA overlooks . . . the crucial difference
between comments before and after rule promulga-
tion. Section 553 is designed to ensure that affected
parties have an opportunity to participate in and
influence agency decision making at an early stage,
when the agency is more likely to give real consider-
ation to alternative ideas.

Id. Thus, the court rejected EPA’s argument that "even if it
was obliged to afford opportunity for § 553 notice and com-
ment before making the designations, its failure to do so was
cured by its acceptance of comments after the effective date."
Id. Adopting EPA’s argument, the court said, "would lead in
the long run to depriving parties affected by agency action of
any way to enforce their § 553 rights to pre-promulgation
notice and comment." Id. The same reasoning applies in this
case.

Finally, any contention that jurisdictions needed clarity
about the retroactive application of SORNA before deciding
whether to implement the Act is insufficient to invoke the
good cause exception in this case. Jurisdictions were afforded
three full years (extendable for an additional two years) to
implement SORNA. 42 U.S.C. § 16924(a), (b). Courts have
enforced § 553’s procedural requirements where states were
given considerably shorter time frames in which to act in
38 UNITED STATES v. GOULD
response to agency rulemaking. See U.S. Steel Corp. v. EPA,
649 F.2d 572 (8th Cir. 1981) (less than one year time frame
for states to draft state implementation plans under Clean Air
Act after EPA promulgated list of areas not in attainment for
national ambient air quality standards); W. Oil & Gas. Ass’n
v. EPA, 633 F.2d 803 (9th Cir. 1980) (same); N.J. Dep’t of
Envtl. Prot. v. EPA, 626 F.2d 1038 (D.C. Cir. 1980) (same);
Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979)
(same); U.S. Steel Corp. v. EPA, 595 F.2d 207 (5th Cir. 1979)
(same); but see Republic Steel Corp. v. Costle, 621 F.2d 797
(6th Cir. 1980) (upholding failure to comply with APA
requirements for same issue); U.S. Steel Corp. v. EPA, 605
F.2d 283 (7th Cir. 1979) (same). Further, even if states were
given a shorter deadline to work with, the tight deadline
would not excuse the Attorney General’s invocation of good
cause. "As a general matter, strict congressionally imposed
deadlines, without more, by no means warrant invocation of
the good cause exception." Methodist Hosp. of Sacramento v.
Shalala, 38 F.3d 1225, 1236 (D.C. Cir. 1994) (internal quota-
tions omitted). Indeed, in spite of the Attorney General’s hur-
ried rulemaking, no state thus far has elected to implement
SORNA, and the Attorney General recently granted a blanket
one-year extension to all jurisdictions to allow substantial
implementation of the Act. See http://www.ojp.usdoj.gov/
smart/pdfs/sornaorder.pdf.

Ultimately, if Congress truly wanted the Attorney General
to make a determination regarding the retroactivity of
SORNA without engaging in the required notice and com-
ment and receiving outside input, it had several options. Con-
gress could have simply declared SORNA to apply
retroactively and to apply in each jurisdiction prior to that
jurisdiction’s implementation of the Act. Alternatively, Con-
gress could have expressly waived the APA’s procedural
requirements. See Asiana Airlines v. FAA, 134 F.3d 393, 398
(D.C. Cir. 1998) (noting that "when Congress sets forth spe-
cific procedures that express its clear intent that APA notice
and comment procedures need not be followed, an agency
 UNITED STATES v. GOULD 39
may lawfully depart from the normally obligatory procedures
of the APA") (internal quotations and alterations omitted).
The fact that Congress delegated significant rulemaking
responsibility to the Attorney General and did not expressly
streamline the rulemaking procedures suggests that Congress
did not want the Attorney General to take his responsibility
lightly and avoid public participation in the rulemaking pro-
cess. See Levesque v. Block, 723 F.2d 175, 185 (1st Cir. 1983)
("[I]f Congress was troubled by th[e] prospect [of a delay in
rulemaking], it could have mandated immediate implementa-
tion."). For these reasons, the Attorney General did not prop-
erly invoke § 553(b)(B)’s good cause exception.

B.

The Attorney General’s decision to forgo the required 30-
day waiting period before 28 C.F.R. § 72.3 went into effect
similarly cannot be excused by good cause. Although courts
have regarded § 553(d)(3)’s good cause standard as distinct
from and somewhat more flexible than § 553(b)(B)’s good
cause standard, see Am. Fed’n of Gov’t Employees v. Block,
655 F.2d 1153, 1156 (D.C. Cir. 1981), the Attorney General’s
failure to engage in the required waiting period in this case
raises important concerns in addition to those implicated by
the lack of notice and comment. The decision here not to
delay implementation of the rule resulted in a complete lack
of notice to pre-SORNA sex offenders, such as Gould, that
they would be subject to federal prosecution and a prison term
of up to ten years effective immediately on February 28,
2007, when the Federal Register notice was published.

As courts have explained, "the purpose of the thirty-day
waiting period is to give affected parties a reasonable time to
adjust their behavior before the final rule takes effect."
Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. Cir. 1996).
Thus, "[i]n determining whether good cause exists, an agency
should ‘balance the necessity for immediate implementation
against principles of fundamental fairness which require that
40 UNITED STATES v. GOULD
all affected persons be afforded a reasonable amount of time
to prepare for the effective date of its ruling.’" Id. (quoting
United States v. Gavrilovic, 551 F.2d 1099, 1105 (8th Cir.
1977)). Because sex offenders were subject to immediate fed-
eral prosecution under SORNA when the interim rule was
announced on February 28, 2007, see United States v.
Hatcher, 560 F.3d 222 (4th Cir. 2009), on that date, with no
prior notice, Gould was suddenly committing a crime punish-
able by up to ten years in prison. See 18 U.S.C. § 2250(a); cf.
42 U.S.C. § 14072(i) (one year maximum sentence for first-
time Megan’s Law violation); Md. Code Ann., Crim. Proc.
§ 11-721(b) (three year maximum sentence for first-time fail-
ure to register under Maryland law). In light of the very sub-
stantial new penalties and the lack of compelling justification
for avoiding delay, giving sex offenders no grace period in
which to register is wholly inconsistent with § 553(d)(3)’s
concept of good cause.

II.

It is clear that the Attorney General promulgated 28 C.F.R.
§ 72.3 in violation of the APA. The remaining issue is there-
fore one of remedy. "It is fundamental law that a rule promul-
gated by a federal agency is not valid unless adopted in
substantial compliance with the requirements of the APA." N.
Am. Coal Corp. v. Dir. Office of Workers’ Comp. Programs,
854 F.2d 386, 388 (10th Cir. 1988). As the Ninth Circuit
thoughtfully explained, courts

must exercise great caution in applying the harmless
error rule in the administrative rulemaking context.
The reason is apparent: Harmless error is more read-
ily abused there than in the civil or criminal trial
context. An agency is not required to adopt a rule
that conforms in any way to the comments presented
to it. So long as it explains its reasons, it may adopt
a rule that all commentators think is stupid or unnec-
essary. Thus, if the harmless error rule were to look
 UNITED STATES v. GOULD 41
solely to result, an agency could always claim that it
would have adopted the same rule even if it had
complied with the APA procedures. To avoid gutting
the APA’s procedural requirements, harmless error
analysis in administrative rulemaking must therefore
focus on the process as well as the result. We have
held that the failure to provide notice and comment
is harmless only where the agency’s mistake clearly
had no bearing on the procedure used or the sub-
stance of decision reached.

Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th
Cir. 1992) (internal quotations omitted); see also Nat’l Org.
of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 260
F.3d 1365, 1375 (Fed. Cir. 2001) ("Failure to allow notice and
comment, where required, is grounds for invalidating the
rule"). I agree. The appropriate remedy in this case is invali-
dation of the rule and reversal of Gould’s conviction on the
ground that the application of SORNA to Gould relies on the
invalid rule.

I recognize that the Attorney General would be within his
authority to promulgate the same rule and guidelines after
engaging in the APA’s required notice and comment period.
See Riverbend Farms, 958 F.2d at 1487. Indeed, it may be
that, at most, minimal substantive changes would arise from
requiring the Attorney General to promulgate a new rule in
compliance with § 553’s procedural requirements. Neverthe-
less, I believe holding the rule invalid and reversing Gould’s
conviction is warranted because allowing the Attorney Gen-
eral to sidestep the requirements of the APA here establishes
a dangerous precedent. In cases, for example, where the chal-
lengers of a regulation represent familiar economic interests,
courts routinely enforce compliance with the APA’s proce-
dural safeguards. See, e.g., Util. Solid Waste Activities Group
v. EPA, 236 F.3d 749 (D.C. Cir. 2001); Mobil Oil Corp. v.
EPA, 35 F.3d 579 (D.C. Cir. 1994); Tenn. Gas Pipeline Co.
v. FERC, 969 F.2d 1141 (D.C. Cir. 1992); U.S. Steel Corp. v.
42 UNITED STATES v. GOULD
U.S. EPA, 595 F.2d 207 (5th Cir. 1979). Here, where the
adversely affected group—sex offenders — is a despised and
marginalized one, the "public interest" is invoked to exclude
them from the rulemaking process. The APA does not draw
such a distinction.