United States v. DiTomasso

United States Court of Appeals
For the First Circuit

No. 08-2567

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL DiTOMASSO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Boudin, Selya and Gajarsa,*

Circuit Judges.

Kevin J. Fitzgerald, Assistant Federal Public Defender, for
appellant.
Milind M. Shah, Assistant United States Attorney, with whom
Peter F. Neronha, United States Attorney, was on brief, for
appellee.

September 22, 2010

*
Of the Federal Circuit, sitting by designation.
 SELYA, Circuit Judge. The Sex Offender Registration and

Notification Act (SORNA), Pub. L. No. 109-248, tit. I, §§ 101-155,

120 Stat. 587, 590-611 (2006), fashioned a national scheme for the

registration of sex offenders. This appeal requires us to decide

a question about that scheme that has divided the courts of

appeals: When did SORNA's registration requirements become

operative with respect to a previously convicted sex offender who

traveled interstate and failed to register between SORNA's

effective date and the promulgation of an interim rule clarifying

SORNA's reach? After determining that the registration

requirements became generally operative at the time when SORNA was

signed into law and rejecting a series of constitutional challenges

to the registration scheme, we affirm the defendant's conviction

for failure to register.

I. BACKGROUND

Because this appeal follows a conviction predicated on a

guilty plea, we draw the facts from the change-of-plea colloquy,

the uncontested portions of the presentence investigation report,

and the sentencing transcript. See, e.g., United States v.

Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir. 2010); United States v.

Dietz, 950 F.2d 50, 51 (1st Cir. 1991).

Defendant-appellant Michael DiTomasso was convicted of

sex offenses in Massachusetts in 1995. Upon his release from

prison, Massachusetts law required him to register as a sex

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offender, and he did so. He was on notice that, if he moved out of

state, he would have to register as a sex offender in the new

venue.

The defendant kept his Massachusetts registration current

through the fall of 2006. In February of 2007, he moved to

Woonsocket, Rhode Island,1 and took up residence there. Despite

this change of domicile, he did not register as a sex offender in

Rhode Island.

On March 27, 2007, a local police officer informed the

defendant that Rhode Island law required him to register. The

officer told him that he should report to the police station for

that purpose within the week. The defendant did not comply.

On April 4, 2007, the defendant was arrested for failing

to register as a sex offender in Rhode Island. Spurred by this

arrest, a federal grand jury handed up an indictment charging the

defendant with failing to register under SORNA. See 18 U.S.C.

§ 2250; 42 U.S.C. § 16913. The indictment alleged that the

defendant's culpable failure to register began in March 2007 and

continued through April 4, 2007 (a period that followed his

interstate travel in February of 2007).

The defendant moved to dismiss the indictment, arguing

that SORNA did not apply to him and that, in all events, the law's

1
The record does not indicate an exact date, but the
government, at least provisionally, acknowledges that the
defendant's interstate travel occurred before February 27, 2007.

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registration requirements were invalid. The government opposed the

motion. The district court, in a thoughtful rescript, rejected the

defendant's challenge. United States v. DiTomasso, 552 F. Supp. 2d

233, 248 (D.R.I. 2008). The court ruled that SORNA applied to the

defendant from and after its effective date because the law imposed

a "general obligation on sex offenders to register." Id. at 241.

The court simultaneously rebuffed the defendant's other challenges.

Id. at 247-48.

The defendant elected to enter a conditional guilty plea,

Fed. R. Crim. P. 11(a)(2), preserving his right to appeal the

denial of his motion to dismiss. The district court sentenced him

to serve thirty months in prison. This timely appeal ensued.

II. ANALYSIS

We first consider the defendant's principal argument that

SORNA did not apply to him when he committed the alleged offense.

We then address his other constitutional claims.

A. Applicability of the Registration Requirements.

The defendant pleaded guilty to violating 18 U.S.C.

§ 2250(a). Among other things, this section imposes criminal

penalties when a person required to register as a sex offender

under SORNA knowingly fails to register after traveling in

interstate commerce. For SORNA purposes, a "sex offender" is "an

individual who was convicted of a sex offense." 42 U.S.C.

§ 16911(1). The defendant concedes that he falls within this

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taxonomy. To understand his argument that SORNA's registration

requirements, 42 U.S.C. § 16913(a), (c), nonetheless do not apply

to him, we must understand the architecture of the statutory

scheme.

The registration requirements are laid out in section

16913, which provides:

(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) and inform
that jurisdiction of all changes in the
information required for that offender in the
sex offender registry. That jurisdiction

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 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)

The Attorney General shall have the authority
to specify the applicability of the
requirements of this subchapter to sex
offenders convicted before the enactment of
this chapter or its implementation in a
particular jurisdiction, and to prescribe
rules for the registration of any such sex
offenders and for other categories of sex
offenders who are unable to comply with
subsection (b).

42 U.S.C. § 16913.2

SORNA became law on July 27, 2006. On February 28, 2007,

the Attorney General, acting pursuant to the authority explicitly

granted to him in section 16913(d), promulgated an interim rule "to

eliminate any possible uncertainty about the applicability of

[SORNA's] requirements . . . to sex offenders whose predicate

convictions predate the enactment of SORNA." Applicability of the

Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894,

8896 (Feb. 28, 2007). This rule declares that SORNA's requirements

"apply to all sex offenders, including sex offenders convicted of

2
There is a discrepancy between the United States Code and
the United States Code Annotated with respect to the language of 42
U.S.C. § 16913. The version printed in the United States Code
Annotated contains the words "of this section" in subsections (c)
and (d) when cross-referencing other subsections of the provision,
but the version printed in the United States Code does not. We
quote here the version in the United States Code, as it is the
official version of the statute. This difference, however, has
absolutely no bearing on the substance of our discussion.

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the offense for which registration is required prior to the

enactment of [SORNA]." 28 C.F.R. § 72.3.

The courts of appeals have disagreed about the meaning

and effect of this statutory/regulatory mosaic. See Carr v. United

States, 130 S. Ct. 2229, 2234 n.2 (2010) (noting circuit split).

The disagreement centers on subsection (d), which contains two

pertinent clauses. The question boils down to whether the first

clause, stating that "[t]he Attorney General shall have the

authority to specify the applicability of the requirements of this

subchapter to sex offenders convicted before the enactment of this

chapter or its implementation in a particular jurisdiction," gave

the Attorney General authority to determine the applicability of

SORNA to all persons who stood convicted of sex offenses on SORNA's

effective date or, alternatively, as indicated in the following

clause of subsection (d) ("to prescribe rules for the registration

of any such sex offenders and for other categories of sex offenders

who are unable to comply with subsection (b)"), to determine its

applicability only as to specific subsets of those offenders.

Some courts have determined, often over emphatic

dissents, that the statute unambiguously gave the Attorney General

the authority to determine SORNA's applicability to all persons

previously convicted of sex offenses. See, e.g., United States v.

Cain, 583 F.3d 408, 414-15 (6th Cir. 2009); United States v.

Hatcher, 560 F.3d 222, 228 (4th Cir. 2009); United States v.

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Madera, 528 F.3d 852, 858 (11th Cir. 2008) (per curiam). If this

view is correct, SORNA did not apply to previously convicted sex

offenders until the Attorney General promulgated the interim rule.

See Hatcher, 560 F.3d at 229.

Other courts, deeming the statute ambiguous, have

construed it to signify that the Attorney General only had

authority to determine SORNA's applicability to previously

convicted sex offenders who were unable initially to register under

SORNA.3 See, e.g., United States v. Hinckley, 550 F.3d 926, 930,

932-33, 935 (10th Cir. 2008), cert. denied, 129 S. Ct. 2383 (2009);

United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008), cert.

denied, 129 S. Ct. 2431 (2009); see also Cain, 583 F.3d at 424

(Griffin, J., dissenting); Hatcher, 560 F.3d at 229 (Shedd, J.,

dissenting). Under this view, registered sex offenders who had a

state-law duty to keep their registrations current on SORNA's

effective date became subject to a new obligation to register for

federal purposes when, thereafter, they moved to a different state.

See May, 535 F.3d at 919. If this view is correct, SORNA applied

to previously convicted sex offenders as of the date of its

enactment.

3
An example would be an offender who had been convicted of a
sex offense but was not required to register (or could not
register) under any state law prior to SORNA's enactment. See 72
Fed. Reg. at 8896.

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 The defendant urges us to follow the Fourth, Sixth, and

Eleventh Circuits and hold that SORNA's registration requirements

did not apply to him when he traveled interstate. In his view, the

plain language of subsection (d) delegates to the Attorney General

sole authority to determine whether SORNA applies to any or all sex

offenders with preexisting convictions and, inasmuch as the

Attorney General did not exercise this authority until February 28,

2007 (when he promulgated the interim rule), convicted sex

offenders who traveled before that date and failed to register did

not violate SORNA's registration requirements. Any other reading

of the statute, he contends, would transgress the Ex Post Facto

Clause, U.S. Const. art. I, § 9, cl. 3, which prohibits "punishment

for an act which was not punishable at the time it was committed."

Weaver v. Graham, 450 U.S. 24, 28 (1981) (quoting Cummings v.

Missouri, 71 U.S. (4 Wall.) 277, 325-26 (1867)). Because this

claim presents a question of statutory construction, we afford de

novo review. United States v. Leahy, 473 F.3d 401, 405 (1st Cir.

2007).

"Statutory interpretation begins with the language of the

statute." Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1,

8 (1st Cir. 2007). Absent some indication that the words of a

statute have an "exotic meaning," we normally assume that the

language employed carries its usual and ordinary meaning. SEC v.

Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc). If the

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meaning of the text is plain, we generally need go no further. In

re Hill, 562 F.3d 29, 32 (1st Cir. 2009).

This general rule, like virtually every general rule,

admits of exceptions. One such exception is pertinent here. No

less an authority than the Supreme Court has warned that "the

meaning of statutory language, plain or not, depends on context."

Holloway v. United States, 526 U.S. 1, 7 (1999) (quoting Brown v.

Gardner, 513 U.S. 115, 118 (1994)); see also Davis v. Mich. Dep't

of Treas., 489 U.S. 803, 809 (1989) ("[W]ords of a statute must be

read in their context and with a view to their place in the overall

statutory scheme.").

The language at issue here — the first clause of

subsection (d) — states that "[t]he Attorney General shall have the

authority to specify the applicability of the requirements of this

subchapter to sex offenders convicted before the enactment of this

chapter . . . ." 42 U.S.C. § 16913(d). Although this language

might appear straightforward if read in a vacuum, a mechanical

reading of it as applying to all previously convicted sex offenders

would wrest it from its contextual moorings. Taking into account

the context in which this provision operates, we do not believe

that such a mechanical construction is what Congress intended.

In our judgment, a different canon of construction

dominates the interpretive landscape in this instance. When

congressional intent is clear and a statute plausibly can be read

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to effectuate that intent, that reading must prevail over a more

semantically correct reading of the statutory language. See, e.g.,

In re Hill, 562 F.3d at 32 ("[P]lain meaning sometimes must yield

if its application would bring about results that are either absurd

or antithetical to Congress's discernible intent."). We explain

below why we think that this is such a case.

In the absence of a clear congressional direction to the

contrary — and there is none here — "a law takes effect on the date

of its enactment." Gozlon-Peretz v. United States, 498 U.S. 395,

404 (1991). SORNA was signed into law on July 27, 2006.

Subsection (a), which requires that sex offenders "register, and

keep the registration current," 42 U.S.C. § 16913(a), unarguably

became law at that time. The same is true of subsection (b), which

describes SORNA's initial registration requirements, id.

§ 16913(b), and of subsection (c), which demands the updating of

registration information within three business days of a change of

name, residence, employment, or student status, id. § 16913(c).

Thus, but for subsection (d), any argument that the section cannot

operate in advance of action by the Attorney General would be

absurd.

Based on this analysis, we disagree with the Sixth

Circuit's reading of subsections (a)-(c). See Cain, 583 F.3d at

414-15 ("Congress did not enact language providing a default

position . . . the statute does not read 'the Attorney General

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shall have the authority to waive the applicability of the

requirements of this subchapter.'"). Subsections (a), (b), and (c)

contain clear and directory language, and when statutory language

is written as a clear directive, the rule is that, in the absence

of limiting language, the statute is effective as of the date of

its enactment. See United States v. Shenandoah, 595 F.3d 151, 157-

58 (3d Cir.), cert. denied, 130 S. Ct. 3433 (2010). There is no

limiting language here.

Subsection (d) is anything but a clear direction to the

contrary. Courts holding otherwise have read the language of this

subsection as giving the Attorney General the exclusive authority

to apply the registration requirements to any and all previously

convicted sex offenders. See, e.g., Hatcher, 560 F.3d at 227. To

arrive at this interpretation, those courts have surgically removed

subsection (d) from the rest of the section and have read its text

in a vacuum. See, e.g., Cain, 583 F.3d at 414. We are unwilling

to take so struthious an approach. Cf. United States v. Heirs of

Boisdore, 49 U.S. (8 How.) 113, 122 (1849) (explaining that "[i]n

expounding a statute, we must not be guided by a single sentence or

member of a sentence, but look to the provisions of the whole law,

and to its object and policy"). Context must be considered — and

contextual awareness is especially important when interpreting the

provisions of a comprehensive regulatory scheme. See, e.g., FDA v.

Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)

-12-
(directing courts to interpret such a statute "as a symmetrical and

coherent regulatory scheme" (quoting Gustafson v. Alloyd Co., 513

U.S. 561, 569 (1995))). Congress intended SORNA to function as

such a scheme. See 42 U.S.C. § 16901 (stating that Congress sought

to "establish[] a comprehensive national system for the

registration of [sex] offenders"); see also May, 535 F.3d at 919-20

(discussing Congressional intent to create regulatory scheme when

enacting SORNA).

When viewed as a part of a seamless regulatory scheme,

subsection (d) has a distinct office: it appears to reflect

Congress's recognition that specific applications of the

registration requirements to previously convicted sex offenders may

have unintended consequences. Thus, subsection (d) allows — but

does not compel — the Attorney General to narrow SORNA's sweep if

and to the extent that he concludes that specific situations invite

such narrowing. Several contextual considerations support this

view.

First, it cannot be gainsaid that Congress enacted SORNA

to "establish[] a comprehensive national system for the

registration of [sex] offenders." 42 U.S.C. § 16901. The Act

defines a "sex offender" as "an individual who was convicted of a

sex offense." Id. § 16911(1) (emphasis supplied). It is

significant that this past-tense definition makes no exceptions.

See Hatcher, 560 F.3d at 232 (Shedd, J., dissenting) (concluding

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that this past-tense usage "expressly sweeps persons . . .

convicted of sex offenses prior to SORNA's enactment within the

statute's scope"); see also Carr, 130 S. Ct. at 2236 (noting

importance of Congress's choice of verb tense in interpreting

statute's temporal reach).

Second, the structure of section 16913 strongly suggests

that this past-tense usage is not a scrivener's error. The office

of subsection (a) is to ensure the registration of all sex

offenders. Congress spoke with conspicuous clarity in making

subsection (a) all-encompassing: "A sex offender shall register,

and keep the registration current, in each jurisdiction where the

offender resides . . . ." 42 U.S.C. § 16913(a). By the same

token, neither subsection (b), which elaborates on initial

registration requirements, nor subsection (c), which delineates

continuing registration requirements, distinguishes between pre-

SORNA and post-SORNA sex offense convictions. See id. § 16913(b)-

(c); see also Hinckley, 550 F.3d at 944 (Gorsuch, J., concurring).

Third, SORNA was tailored to fashion a comprehensive

regulatory scheme. 42 U.S.C. § 16901. Construing subsection (d)

to exempt a broad swath of the convicted sex offender population —

indeed, the entirely of it, until the Attorney General acts — would

fit uncomfortably with the remainder of the Act.

Fourth, the title of subsection (d) specifies that the

authority it describes relates to the "[i]nitial registration of

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sex offenders unable to comply with subsection (b)." This language

clearly indicates that the scope of the authority conferred upon

the Attorney General by subsection (d) is limited to prescribing

rules governing those offenders unable to comply with SORNA's

initial registration requirements under subsection (b) and not pre-

SORNA sex offenders more generally. See Hinckley, 550 F.3d at 933.

Some of the courts that have endorsed a contrary

construction of subsection (d) have disregarded the title of the

subsection based on the principle that courts only look to the

title of a law in the event of ambiguity. See, e.g., Cain, 583

F.3d at 416; Hatcher, 560 F.3d at 226. But that principle does not

pertain where, as here, an inquiring court's primary task is to

place a statute in context before attempting to construe it. Thus,

we do not use the title to "undo or limit what the text makes

plain." Bhd. of R.R. Trainmen v. Balt. & Ohio R.R. Co., 331 U.S.

519, 529 (1947).

Fifth, the language of the second clause of subsection

(d), which states that the Attorney General shall have the

authority "to prescribe rules . . . for other categories of sex

offenders who are unable to comply with subsection (b)," informs

our understanding of the first clause of subsection (d). The

second clause suggests that the authority conferred by the first

clause of subsection (d) was intended to extend only to those

previously convicted offenders who were unable to comply with

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subsection (b), and not to previously convicted offenders more

generally. The use of the word "other" in the second clause is

most naturally read to indicate Congress's contemplation that the

"sex offenders convicted before the enactment of this chapter"

referenced in the first clause will form one subset of "offenders

unable to comply with subsection (b)." Cf. United States v. Ven-

Fuel, Inc., 758 F.2d 741, 751-52 (1st Cir. 1985) ("All words and

provisions of statutes are intended to have meaning and are to be

given effect, and no construction should be adopted which would

render statutory words or phrases meaningless, redundant or

superfluous."). This interpretation of the interaction between the

two clauses of subsection (d) leaves intact the registration

requirements articulated in subsection (a) and limits the

applicability of subsection (d) to those offenders unable to comply

with the requirements of subsection (b). See Hinckley, 550 F.3d at

932.

Sixth, and finally, our view of the scope of subsection

(d) is informed by the way in which Congress chose to delegate

authority to the Attorney General. The subsection provides that

the Attorney General "shall have the authority" to determine the

applicability of the requirements imposed by SORNA. 42 U.S.C.

§ 16913(d). It is thus apparent that the drafters eschewed the use

of mandatory language (e.g., "shall determine") that would have

compelled the Attorney General to make an affirmative determination

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before the statute could be applied to any previously convicted sex

offender. In its use of permissive language, subsection (d)

differs from other SORNA provisions in which Congress mandated

action by the Attorney General. See, e.g., id. § 16917(b)

(directing that "the Attorney General shall prescribe rules for the

notification of sex offenders"). Congress's decision to couch some

provisions of the statute in mandatory language but to couch

subsection (d) in discretionary language is a telltale sign.4 See

Duncan v. Walker, 533 U.S. 167, 172-74 (2001). We think that this

language says what it means and means what is says: that the

Attorney General does not have to act before SORNA's registration

requirements become effective as to previously convicted sex

offenders. See Shenandoah, 595 F.3d at 157-58.

Congress obviously knew how to direct action by the

Attorney General and how to give discretionary authority to him.

In drafting subsection (d), Congress chose the latter course. We

regard this choice as deliberate and, thus, as favoring a reading

of subsection (d) as a grant to the Attorney General of discretion

4
We note that the phrase "shall have the authority" is
typically used, elsewhere in the United States Code, to denote a
grant of authority to perform a discretionary act. See, e.g., 6
U.S.C. § 112(b)(2) (stating that Secretary of Homeland Security
"shall have the authority to make contracts"); 12 U.S.C.
§ 3907(a)(2) (stating that federal banking regulators "shall have
the authority" to set minimum capital requirements); 16 U.S.C.
§ 459j-2(d) (stating that Secretary of the Interior "shall have the
authority" to condemn property); see also Cain, 583 F.3d at 427-30
(Griffin, J., dissenting) (cataloguing judicial interpretations of
similar discretionary provisions).

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to provide limited relief from the broad requirements imposed by

SORNA in order to account for problematic permutations that might

arise with respect to some previously convicted sex offenders.

These lampposts light the path that we must follow. The

language, structure, and purpose of subsection (d) and the context

in which it operates combine to show its unambiguous meaning. We

hold that, in framing subsection (d), Congress did not contemplate

a statutory scheme in which the application of the general rules

limned in subsections (a), (b), and (c) to previously convicted sex

offenders would hinge on action by the Attorney General.5

For purposes of the case at hand, this holding gets the

grease from the goose. It teaches that the general rules requiring

updates to sex offender registration took effect when SORNA was

signed into law. Those requirements were thus in full force when,

in February of 2007, the defendant traveled to a new state. When

he failed to register there, he violated federal law. His

prosecution for that offense poses no Ex Post Facto concerns.6

5
The interim rule promulgated by the Attorney General
indicates that this interpretation is correct. It states that
"[t]his rule forecloses" claims that the Attorney General must
first act before SORNA applies. 72 Fed. Reg. at 8896 (emphasis
supplied).
6
The defendant argues only that his prosecution under SORNA
violated the Ex Post Facto Clause because it penalized him for
conduct (interstate travel) that occurred prior to the date that
SORNA applied to him. He does not raise the related, but distinct,
claim that the overall applicability of SORNA presents an Ex Post
Facto Clause problem because SORNA imposes punishment for a
preexisting crime. We therefore do not address this second issue

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 B. Other Claims.

The defendant advances two other arguments. First, he

maintains that Congress lacked power under the Commerce Clause to

enact sex offender registration requirements. Second, he

asseverates that his conviction infringes his rights under the Due

Process Clause because it was impossible for him to comply with

SORNA at the time of his interstate travel.7 We address these

arguments separately, mindful of our obligation to review

constitutional challenges de novo. United States v. Volungus, 595

F.3d 1, 4 (1st Cir. 2010).

1. Commerce Clause. The Commerce Clause provides in

pertinent part that "[t]he Congress shall have Power To . . .

regulate Commerce . . . among the several States." U.S. Const.

art. I, § 8. The Supreme Court has described the extent of

Congress's power to legislate under the Commerce Clause as follows:

[W]e have identified three broad categories of
activity that Congress may regulate under its
commerce power. First, Congress may regulate
the use of the channels of interstate
commerce. Second, Congress is empowered to

here.
7
In supplemental briefing, the defendant tried to raise a
further argument: that the Attorney General's promulgation of the
interim rule violated the Administrative Procedures Act, 5 U.S.C.
§ 553. This argument was available to the defendant when he filed
his opening brief (indeed, he made it below), so it falls within
the familiar rule that issues not advanced in an appellant's
opening brief are deemed waived. See United States v. Vázquez-
Rivera, 407 F.3d 476, 487-88 (1st Cir. 2005); Sandstrom v. ChemLawn
Corp., 904 F.2d 83, 87 (1st Cir. 1990).

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 regulate and protect the instrumentalities of
interstate commerce, or persons or things in
interstate commerce, even though the threat
may come only from intrastate activities.
Finally, Congress' commerce authority includes
the power to regulate those activities having
a substantial relation to interstate commerce,
i.e., those activities that substantially
affect interstate commerce.

United States v. Lopez, 514 U.S. 549, 558-59 (1995) (internal

citations omitted).

Keying to this test, the defendant launches an as-applied

challenge. He argues that SORNA does not regulate the channels or

instrumentalities of, persons in, or activities having a

substantial effect on, interstate commerce. See, e.g., United

States v. Morrison, 529 U.S. 598, 608-09, 613 (2000); Lopez, 514

U.S. at 558-59. This argument fails because SORNA, as applied

here, explicitly regulates the use of the channels of, and persons

in, interstate commerce. Interstate travel is, after all, an

express element of the SORNA violation with which the defendant was

charged and of which he stands convicted. See 18 U.S.C.

§ 2250(a)(2)(B). That is all that is needed to satisfy the Lopez

standard. See United States v. Guzman, 591 F.3d 83, 89-91 (2d

Cir.), cert. denied, 130 S. Ct. 3487 (2010); Shenandoah, 595 F.3d

at 160-61; United States v. Zuniga, 579 F.3d 845, 850 (8th Cir.

2009) (per curiam), cert. denied, 130 S. Ct. 3384 (2010). Given

the presence of this element, the statute has a sufficient nexus to

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interstate commerce to survive the defendant's Commerce Clause

challenge.8

2. Due Process. The defendant's final argument is

state-specific. He contends that because Rhode Island had not

"implemented" SORNA at the time that he traveled interstate, he

could not have complied with the law's registration requirements.

Therefore, his conviction trespasses upon his right to due process.

We need not tarry. Although this "impossibility"

argument is new to us in this context, it has been uniformly

rejected elsewhere. See, e.g., United States v. Hester, 589 F.3d

86, 92 (2d Cir. 2009) (per curiam), cert. denied, 130 S. Ct. 2137

(2010); United States v. Griffey, 589 F.3d 1363, 1366 (11th Cir.

2009) (per curiam), cert. denied. 130 S. Ct. 3290 (2010); United

States v. Gould, 568 F.3d 459, 463-65 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1686 (2010). We join that queue, pausing only

to offer a decurtate statement of our reasoning.

SORNA contains commands aimed at two different audiences:

convicted sex offenders and states. Convicted sex offenders must

register. See 42 U.S.C. § 16913. States must take various steps,

8
The defendant suggests that the registration requirement
contained in 42 U.S.C. § 16913 itself exceeds Congress's power
under the Commerce Clause. This suggestion is incorrect. The
Necessary and Proper Clause, U.S. Const. art. I, § 8, cl. 18,
provides Congress with ample authority to regulate local activity
as part of a general scheme regulating interstate commerce. See,
e.g., Guzman, 591 F.3d at 91; United States v. Whaley, 577 F.3d
254, 260-61 (5th Cir. 2009); United States v. Ambert, 561 F.3d
1202, 1211-12 (11th Cir. 2009); see also Volungus, 595 F.3d at 5-6.

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such as maintaining a jurisdiction-wide sex offender registry,

enacting criminal penalties for failures to register, and sharing

information with other registries. See, e.g., id. §§ 16912(a),

16913(e), 16921(b). A state's failure to take these steps may lead

to a loss of federal funds. See id. § 16925(a); Gould, 568 F.3d at

463 n.1. Of critical importance, however, the registration

requirements for sex offenders are neither conditioned on nor

harnessed to state implementation of SORNA's state-directed

mandates.

In any event, by the time that Congress enacted SORNA,

every state had a sex offender registration law in place. See

Smith v. Doe, 538 U.S. 84, 90 (2003). SORNA's registration

requirements do not contemplate a specific type of registration;

they merely require a sex offender to "register . . . in each

jurisdiction where the offender resides." 42 U.S.C. § 16913(a).

Registration in accordance with a preexisting state sex offender

registration law satisfies SORNA. See Griffey, 589 F.3d at 1366

(collecting cases).

This construct makes good sense given SORNA's office as

a mechanism for identifying sex offenders who otherwise might slip

through the cracks and elude state-by-state registration

requirements by moving across state lines. See 42 U.S.C. § 16901;

see also National Guidelines for Sex Offender Registration and

Notification, 73 Fed. Reg. 38,030, 38,030 (July 2, 2008)

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(explaining that SORNA was enacted to "eliminate potential gaps and

loopholes under the pre-existing standards by means of which sex

offenders could attempt to evade registration requirements"). The

result is that, as long as a state maintains a registration

mechanism for sex offenders, what the state does or does not do

with respect to implementing its state-specific obligations under

SORNA is not relevant to a sex offender's obligation to register.

See Gould, 568 F.3d at 465.

This dichotomy creates no unfairness here. Although

Rhode Island may not have fully complied with its responsibilities

under SORNA at the time of the defendant's federal crime, it did

maintain a sex offender registry. The defendant could — and should

— have registered there, as local police directed him to do. It

follows that there was no due process violation.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we uphold the district court's well-reasoned refusal to dismiss the

indictment.

Affirmed.

- Concurring Opinion Follows -

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 BOUDIN, Circuit Judge, concurring. Judge Selya's

decision for the panel lays out lucidly the reasons why the

statutory language and canons of construction--always the first

resort in interpretation--support applying the statute to the

defendant. It may be useful to underscore two further points: that

the statute's design leans against the narrow reading adopted by

several other circuits and that Congress' purpose supports the

broader one that we adopt today.

National standards for sex offender registration have

existed since 1994, when the Congress provided federal funding to

states that enacted sex offender registration laws. See 42 U.S.C.

§ 14071. By the time that the Sex Offender Registration and

Notification Act (SORNA), Pub. L. No. 109-248, tit. I, 120 Stat.

590 (42 U.S.C. § 16901 et seq.), was signed into law on July 27,

2006, every state--including Massachusetts and Rhode Island--had

enacted a sex offender registration law. See National Guidelines

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

38,030, 38,030 (July 2, 2008); see also Smith v. Doe, 538 U.S. 84,

90 (2003).

But the pre-SORNA state-by-state schemes contained

potential gaps and loopholes through which sex offenders could

attempt to evade registration requirements or the consequences of

registration violations. See H.R. Rep. No. 109-218, pt. 1, at 23.

Senator Cantwell explained: "Child sex offenders have exploited

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this stunning lack of uniformity, and the consequences have been

tragic. Twenty percent of the Nation's 560,000 sex offenders are

'lost' because State offender registry programs are not coordinated

well enough." 152 Cong. Rec. S8020 (daily ed. July 20, 2006).

SORNA's aim, repeated throughout the debate in Congress, was to

impose on this patchwork a uniform, "comprehensive" federal

registration statute. See 42 U.S.C. § 16901; see also United

States v. Hinckley, 550 F.3d 926, 947 (10th Cir. 2008) (Gorsuch,

J., concurring).

SORNA pressed states--on pain of losing federal funding--

to adopt new federal standards in their own sex offender

registration programs. 42 U.S.C. § 16925. In addition, it

directly imposed new federal registration obligations on sex

offenders and provided for federal enforcement of those

obligations. 42 U.S.C. §§ 16913-16917. What is important to the

case before us is that Congress intended the enforcement provisions

to apply of their own force to those who had previously been

convicted and not just to newly convicted offenders.

The House Judiciary Committee report on an earlier

version of SORNA explained that SORNA would address the "strong

public interest in finding" previously convicted offenders who were

not currently registered "and having them register with current

information to mitigate the risks of additional crimes against

children." H.R. Rep. No. 109-218, pt. 1, at 24. Similarly,

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Senator Kyl explained: "There currently are over 100,000 sex

offenders in this country who are required to register but are 'off

the system.' They are not registered. The penalties in this bill

should be adequate to ensure that these individuals register." 152

Cong. Rec. S8025 (daily ed. July 20, 2006) (emphasis added); accord

id. at S8013 (Sen. Hatch).

Consonantly, the SORNA provision on registry requirements

for sex offenders has a single opening paragraph, titled "In

general," that directs all "sex offender[s]" to register and to

keep their registration current, 42 U.S.C. § 16913(a), and SORNA

defines the term sex offender as "an individual who was convicted

of a sex offender," id. § 16911(1) (emphasis added). Subsection

(a), without exempting offenders with convictions before SORNA came

into force, provides in full:

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.

Id. § 16913(a).

The provision, central to achieving SORNA's objectives,

is manifestly remedial in purpose--not punitive. This is borne out

by the evident reason for requiring registration in the first

place, which is to prevent further crimes, by the statements in

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Congress to the same effect, and by the placement of the

registration provisions in 42 U.S.C. rather than the Criminal Code,

18 U.S.C. There is no presumption against or prohibition on making

remedial measures apply to preexisting circumstances. See Smith,

538 U.S. 84.

SORNA also adopted criminal enforcement provisions, one

of which punishes someone who after SORNA was enacted travels in

interstate commerce but fails to register in a new state of

residence within a fixed period. 18 U.S.C. § 2250(a); 42 U.S.C. §

16913; see Carr v. United States, 130 S.Ct. 2229 (2010). Here,

DiTomasso--previously registered in Massachusetts as a sex

offender--traveled in interstate commerce after July 27, 2006, and

then failed to register in Rhode Island even though expressly

advised of his obligation to register.

At this point, one might wonder why there is any problem

at all with DiTomasso's conviction. The problem arises because in

SORNA, Congress adopted not only the blanket requirement of

subsection (a), but also a more detailed provision dealing with

initial registration (subsection (b)); and a provision titled

"Initial registration of sex offenders unable to comply with

subsection (b)" (subsection (d)). The latter, drafted in language

somewhat opaque at first, reads:

(d) Initial registration of sex offenders
unable to comply with subsection (b)

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 The Attorney General shall have the authority
to specify the applicability of the
requirements of this subchapter to sex
offenders convicted before July 27, 2006 or
its implementation in a particular
jurisdiction, and to prescribe rules for the
registration of any such sex offenders and for
other categories of sex offenders who are
unable to comply with subsection (b).

42 U.S.C. § 16913(d).

Since both the heading and the main internal cross

reference in the text--"offenders who are unable to comply with

subsection (b)"--relate to subsection (b), one could read

subsection (d) as confined to certain problems, mainly dealing with

timing, that Congress foresaw as to initial registration.9 But

there is also some evidence that might support subsection (d) as

allowing the Attorney General to qualify the blanket applicability

of subsection (a) itself if special problems arose in applying the

statute to pre-SORNA convicts.

Yet if subsection (d) were read to apply to matters other

than initial registration, it still does not say that SORNA exempts

those convicted before SORNA unless and until the Attorney General

so determines. It is perfectly fair to read subsections (a) and

(d) together so that--absent contrary action by the Attorney

9
Importantly, state initial registration requirements, varying
from one state to another, could in various circumstances have made
it infeasible for those convicted prior to SORNA to have registered
in the manner and within the time limits now prescribed by SORNA's
subsection (b) requirements. See Interim Rule on the Applicability
of SORNA, 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007) (codified at 28
C.F.R. § 72.3).

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General--SORNA applies to one convicted before SORNA but who

"travels" afterwards and refuses to register. That is the way the

Attorney General himself reads the statute.10 See Applicability of

SORNA, 72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. §

72.3).

A contrary reading would suppose that Congress left those

with pre-SORNA convictions free from registration requirements

unless and until the Attorney General got around to regulating; in

principle, such a reading would allow him not to regulate them at

all. This is hardly consistent with Congress' emphatic purpose to

advance the "strong public interest in finding" and imposing

registration requirements on those already convicted before SORNA

itself.

Some very capable judges appear initially to have viewed

the matter differently, but, with respect, there is nothing in text

or history that forbids reading subsection (a) as fully applicable

unless and until the Attorney General limits or qualifies it so far

10
In certain circumstances, the reading of an official charged
with administering an ambiguous statute is entitled to substantial
deference so long as it is linguistically permissible, see Chevron
U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-45
(1984); in other circumstances, it has persuasive force, see
Skidmore v. Swift & Co., 323 US. 134, 140 (1944). In Carr, the
Supreme Court rejected the Attorney General's reading of a separate
SORNA provision, but there, the statutory term in issue--"travels"-
-did arguably directly conflict with the Attorney General's
reading. Here, "authority to specify" says nothing express about
whether the subsection (a) operates with full force if the Attorney
General declines to exercise his authority.

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as subsection (d) might permit; and, even if the language could

read either way, this is the reading most consistent with Congress'

central purpose.

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