United States v. Whitlow ( 2013 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 12-1448
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    ALVIN WHITLOW,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Rya W. Zobel, U.S. District Judge]
    Before
    Thompson, Circuit Judge,
    Souter,* Associate Justice,
    and Stahl, Circuit Judge.
    Behzad Mirhashem, Federal Defender Office, District of New
    Hampshire, for appellant.
    Randall E. Kromm, Assistant United States Attorney, with whom
    Carmen M. Ortiz, United States Attorney, was on brief, for
    appellant.
    April 18, 2013
    *
    Hon. David H. Souter, Associate Justice (Ret.) of the
    Supreme Court of the United States, sitting by designation.
    STAHL, Circuit Judge.        Alvin Whitlow, a convicted sex
    offender, moved from the District of Columbia to Massachusetts in
    2009 without complying with the Sex Offender Registration and
    Notification Act (SORNA or the Act), 
    42 U.S.C. §§ 16901-16962
    .             He
    was then arrested and indicted for violating 
    18 U.S.C. § 2250
    (a),
    which    criminalizes    a    knowing    failure   to   abide   by    SORNA's
    registration requirements.       Whitlow pled guilty, but has preserved
    a number of arguments he first made in an unsuccessful motion to
    dismiss the indictment, including that SORNA exceeds Congress's
    constitutional authority, that it includes an unconstitutional
    delegation of legislative power, and that no regulations have
    validly applied SORNA to offenders whose convictions, like his own,
    pre-date    the   Act.        After   careful   consideration    of    these
    contentions, we affirm.
    I.    Facts & Background
    Because this appeal stems from a conviction via a guilty
    plea, the following facts are drawn from the plea colloquy and
    sentencing materials. See United States v. Cintrón-Echautegui, 
    604 F.3d 1
    , 2 (1st Cir. 2010).            In 1988, Whitlow was convicted of
    assault with intent to rape in the District of Columbia Superior
    Court.     He served a term of incarceration and was then paroled.
    This conviction required him to register as a sex offender with the
    District government.     See 
    D.C. Code §§ 22-4402
    , 22-4014.           He last
    registered in the District in 2009, after which he moved to
    -2-
    Massachusetts    without   notifying      the     authorities      in   either
    jurisdiction.    In June 2010, Whitlow was apprehended in Cambridge,
    Massachusetts.    He admitted to knowingly failing to register as a
    sex offender upon his arrival in the Commonwealth.
    A grand jury subsequently returned an indictment charging
    that Whitlow, "being a person required to register under [SORNA],
    and having traveled in interstate commerce," violated 
    18 U.S.C. § 2250
    (a) by "knowingly fail[ing] to register and to update a
    registration as required by [SORNA]." Whitlow moved to dismiss the
    indictment, arguing that SORNA contained an unlawful delegation of
    legislative power to the Attorney General, that the resulting
    regulations   were    invalid,   that    his    prosecution   violated    the
    Constitution's Ex Post Facto Clause, and that SORNA and § 2250(a)
    exceed   Congress's    constitutional     powers.     Most    of    Whitlow's
    arguments were premised on the idea that SORNA did not, and could
    not, apply to him because his predicate sex-offender conviction
    predated the Act's passage. He acknowledged, however, that some of
    his arguments appeared to be foreclosed by our precedents.                The
    district court agreed, denying the motion "in light of existing
    First Circuit law."     Whitlow then pled guilty, but preserved his
    right to appeal the denial of his motion to dismiss the indictment.
    He now exercises that right, renewing all of his arguments except
    the Ex Post Facto Clause attack.
    -3-
    II.    Analysis
    SORNA was enacted in 2006 to establish a comprehensive
    national system for the registration of sex offenders.        
    42 U.S.C. § 16901
    .   To that end, the Act "requires those convicted of certain
    sex crimes to provide state governments with (and to update)
    information, such as names and current addresses, for inclusion on
    state and federal sex offender registries."         Reynolds v. United
    States, 
    132 S. Ct. 975
    , 978 (2012).       In turn, 
    18 U.S.C. § 2250
    (a)
    "imposes criminal penalties when a person required to register as
    a sex offender under SORNA knowingly fails to register after
    traveling in interstate commerce." United States v. DiTomasso, 
    621 F.3d 17
    , 19-20 (1st Cir. 2010), cert. granted and judgment vacated,
    
    132 S. Ct. 1533
     (2012).   The issue in this case is whether Whitlow,
    whose predicate sex-offender conviction predates SORNA, was subject
    to its registration requirements when he traveled to Massachusetts
    in 2009 and then failed to register.            If he was required to
    register, his conviction under § 2250(a) was proper.        See Carr v.
    United States, 
    130 S. Ct. 2229
    , 2236 (2010).
    In   DiTomasso,   we    concluded   that SORNA automatically
    applied to pre-Act offenders upon enactment.         
    621 F.3d at 22-25
    .
    The district court presumably had this ruling in mind when it
    denied Whitlow's motion to dismiss "in light of existing First
    Circuit law."   But in Reynolds, decided after the district court's
    decision, the Supreme Court held to the contrary, explaining that
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    SORNA left it to the Attorney General to "specify" whether the Act
    applied to sex offenders convicted before its passage.                
    132 S. Ct. at 980-84
    ; see 
    42 U.S.C. § 16913
    (d).          Unless and until the Attorney
    General did so, SORNA applied only prospectively. Reynolds, 
    132 S. Ct. at 984
    .     In light of Reynolds, the question here is whether, at
    the time of Whitlow's travel and failure to register in 2009, the
    Attorney General had issued valid regulations extending SORNA's
    registration requirements to pre-Act offenders.                  We have not
    previously considered this question because of our pre-Reynolds
    view that SORNA was automatically retroactive.                United States v.
    Parks, 
    698 F.3d 1
    , 4 (1st Cir. 2012).1
    The   Attorney   General     has    produced    three    sets   of
    regulations that arguably applied SORNA to pre-Act offenders: the
    "Interim Rule" in February 2007, Applicability of the Sex Offender
    Registration and Notification Act, 
    72 Fed. Reg. 8,894
     (Feb. 28,
    2007); the "SMART Guidelines" in July 2008, The National Guidelines
    for Sex Offender Registration and Notification, 
    73 Fed. Reg. 38,030
    (July    2,    2008);   and    the   "Final      Rule"   in   December    2010,
    Applicability of the Sex Offender Registration and Notification
    Act, 
    75 Fed. Reg. 81,849
     (Dec. 29, 2010).           The government does not
    argue that the 2010 Final Rule, which postdates Whitlow's travel
    1
    For convenience, we sometimes use "retroactivity" to
    refer to SORNA's applicability to pre-Act offenders. We do not
    mean to imply that SORNA criminalizes travel that occurred before
    its enactment.   See Carr, 
    130 S. Ct. at 2233
     ("Liability under
    § 2250 . . . cannot be predicated on pre-SORNA travel.").
    -5-
    and arrest, could have applied to him.             Instead, the government
    says that either the Interim Rule or the SMART Guidelines (or both)
    had validly extended SORNA to pre-Act offenders by the time Whitlow
    failed to register in 2009.
    Before we discuss any of these regulations individually,
    we briefly address Whitlow's two broader arguments. First, Whitlow
    contends that none of the regulations are valid because SORNA's
    delegation to the Attorney General of the power to specify whether
    the Act is retroactive violates the constitutional non-delegation
    doctrine.     See   Reynolds,   
    132 S. Ct. at 986-87
       (Scalia,   J.,
    dissenting) (raising this issue).           Second, he argues that SORNA's
    registration scheme is itself unconstitutional because it exceeds
    Congress's enumerated Article I powers.                 See United States v.
    Morrison, 
    529 U.S. 598
    , 607 (2000).          But, as Whitlow acknowledges,
    we have already rejected both of these contentions. See Parks, 698
    F.3d at 6-8 (addressing Commerce Clause and non-delegation doctrine
    arguments); DiTomasso, 
    621 F.3d at
    26 & n.8 (addressing Commerce
    Clause and Necessary and Proper Clause challenges).2              These prior
    decisions are binding on us.      United States v. Troy, 
    618 F.3d 27
    ,
    2
    We note that the Supreme Court recently granted
    certiorari to consider the Fifth Circuit's en banc holding that
    SORNA exceeds Congress's Article I powers when applied to a pre-Act
    offender who, having been unconditionally released from federal
    custody, failed to register after an intrastate relocation. See
    United States v. Kebodeaux, 
    687 F.3d 232
    , 253 (5th Cir. 2012) (en
    banc), cert. granted, 
    133 S. Ct. 928
     (2013). Because this case
    involves interstate travel (among other factual differences), it
    does not raise the same issues.
    -6-
    35 (1st Cir. 2010). Accordingly, we turn to Whitlow's more focused
    attacks on the Attorney General's regulations.
    Whitlow's challenge to the February 2007 Interim Rule is
    based on the premise that the rule was promulgated without the
    notice-and-comment    procedures     required   by    the     Administrative
    Procedure Act (APA), see 
    5 U.S.C. § 553
    , and without good cause for
    that lapse, see 
    id.
     § 553(b)(3)(B).          A number of other circuits
    have taken differing views on whether the Attorney General had good
    cause to skip the APA-mandated procedures in producing the Interim
    Rule, and on whether it matters (which may depend in part on the
    precise timing of the offense at issue).            Compare, e.g., United
    States v. Gould, 
    568 F.3d 459
    , 470 (4th Cir. 2009) (good cause),
    and United States v. Johnson, 
    632 F.3d 912
    , 928-33 (5th Cir. 2011)
    (no good cause, but error was harmless), with United States v.
    Reynolds, ___ F.3d ___, 
    2013 WL 979058
    , at *7-20 (3d Cir. Mar. 14,
    2013) (no good cause, and error was prejudicial), and United States
    v. Utesch, 
    596 F.3d 302
    , 310, 312-13 (6th Cir. 2010) (same). Here,
    though,   Whitlow's   interstate    travel    and    failure    to   register
    occurred in 2009, after both the Interim Rule and the SMART
    Guidelines had been issued.        Thus, if the SMART Guidelines had
    properly extended     SORNA   to   pre-Act   offenders   by    the   time   of
    Whitlow's offense, the Interim Rule's validity is beside the point.
    See United States v. Mattix, 
    694 F.3d 1082
    , 1083-85 (9th Cir. 2012)
    (per curiam); United States v. Stevenson, 
    676 F.3d 557
    , 561-62 (6th
    -7-
    Cir. 2012).    We therefore bypass the Interim Rule and turn to the
    SMART Guidelines.
    The SMART Guidelines did go through the notice-and-
    comment process.       They were published in proposed form on May 30,
    2007, see 
    72 Fed. Reg. 30,210
    , and in final form on July 2, 2008,
    see 
    73 Fed. Reg. 38,030
    .         They became effective on August 1, 2008.
    Stevenson, 
    676 F.3d at 566
    . The final Guidelines "provide guidance
    and   assistance      to   the    states    and    other   jurisdictions      in
    incorporating    the    SORNA    requirements     into   their   sex    offender
    registration and notification programs."            73 Fed. Reg. at 38,030.
    The Guidelines address a number of issues, including "the sex
    offenders required to register under SORNA and the registration and
    notification requirements they are subject to."                  Id.     On the
    question of retroactivity, the final Guidelines provide:
    The applicability of the SORNA requirements is
    not limited to sex offenders whose predicate
    sex offense convictions occur following a
    jurisdiction's implementation of a conforming
    registration    program.    Rather,    SORNA's
    requirements took effect when SORNA was
    enacted on July 27, 2006, and they have
    applied since that time to all sex offenders,
    including those whose convictions predate
    SORNA's enactment.
    Id. at 38,046 (citing 
    28 C.F.R. § 72.3
    ; 
    72 Fed. Reg. 8,894
    ,
    8895-96).       The    government    says   that    this     language    plainly
    establishes     SORNA's    applicability     to    pre-Act     offenders    like
    Whitlow.
    -8-
    Whitlow makes three responses.            First, he contends that
    the Attorney General issued the SMART Guidelines not under the
    authority    to      "specify"    retroactivity      conferred     by   
    42 U.S.C. § 16913
    (d) and discussed in Reynolds, but instead under 
    42 U.S.C. § 16912
    (b),     which     instructs    the     Attorney    General    to   "issue
    guidelines      and    regulations      to     interpret    and   implement     this
    subchapter," i.e., SORNA. See 72 Fed. Reg. at 30,210 (stating that
    the proposed Guidelines "carry out" § 16912(b)'s interpret-and-
    implement directive).            Thus, he says, the Guidelines could not
    validly determine retroactivity. This argument is apparently based
    on the APA's requirement that an agency's notice of proposed
    rulemaking "include . . . reference to the legal authority under
    which the rule is proposed."          
    5 U.S.C. § 553
    (b)(2); see Georgetown
    Univ. Hosp. v. Bowen, 
    821 F.2d 750
    , 759 (D.C. Cir. 1987), aff'd,
    
    488 U.S. 204
     (1988); 32 Charles Alan Wright & Charles H. Koch, Jr.,
    Federal Practice & Procedure: Judicial Review § 8173, at 204 (1st
    ed. 2006). While we agree that compliance with this requirement is
    important, we do not agree that the SMART Guidelines run afoul of
    it.
    To begin with, we do not believe that there was even a
    technical violation of § 553(b)(2) here. Whitlow is right that the
    proposed Guidelines identified § 16912(b), and not § 16913(d), as
    the source      of    the   Attorney General's       authority     to   issue   the
    -9-
    Guidelines.3     But § 16912(b)'s interpret-and-implement authority
    appears   to   subsume   the   narrower   power   to   make   retroactivity
    determinations, because the "subchapter" that § 16912(b) tells the
    Attorney General to "implement" (i.e., SORNA itself) includes
    § 16913(d), the retroactivity provision.          See 42 U.S.C., ch. 151,
    subch. I.      As the Sixth Circuit put it, "we cannot ignore that
    §   16912(b)   instructs   the   Attorney   General     to    implement   the
    subchapter, and the subchapter includes the specific option of
    making a rule on retroactivity."      Stevenson, 
    676 F.3d at 564
    .         To
    be sure, "[b]est practices may include citing all relevant sections
    of an enabling statute," 
    id. at 565
    , but it appears that the
    Attorney General actually did identify a statutory provision that
    gave him the power to issue a rule on retroactivity, which is what
    § 553(b)(2) required here.4
    Having said that, we can imagine a scenario in which the
    invocation of a broad enabling statute that technically encompasses
    3
    The government points out that the proposed Guidelines
    did cite § 16913(d) in discussing retroactivity and the Interim
    Rule, see 72 Fed. Reg. at 30,212, but § 553(b)(2) requires that the
    source of the issuing agency's authority be invoked as such, not
    that it merely be mentioned in passing. Cf. Nat'l Tour Brokers
    Ass'n v. United States, 
    591 F.2d 896
    , 900 (D.C. Cir. 1978).
    4
    There is no merit to Whitlow's suggestion that the SMART
    Guidelines   themselves   recognize   that  §   16912(b)   "is   an
    inappropriate mechanism[] for imposing" retroactivity.          The
    language he relies on simply rejects the premise that the Attorney
    General should eschew retroactivity because SORNA was a bad idea in
    the first place. 73 Fed. Reg. at 38,031; see Stevenson, 
    676 F.3d at
    565 n.7.
    -10-
    a more specific authority might leave the public unclear as to the
    ostensible    basis    and   scope   of   the    agency's     authority,      thus
    frustrating the purpose of § 553(b)(2).               But this is not such a
    case.    Ultimately, § 553(b)(2) functions to ensure that the agency
    considers whether it actually has the authority to make the rule it
    is proposing, and to give interested parties a chance to comment on
    that question.      See Koretoff v. Vilsack, 
    707 F.3d 394
    , 398 (D.C.
    Cir. 2013); ConocoPhillips Co. v. EPA, 
    612 F.3d 822
    , 833 (5th Cir.
    2010).    Here, we see no reason -- and Whitlow offers none -- why
    the   proposed     Guidelines'   invocation      of    §   16912(b)    and   their
    discussion    of   retroactivity     would   not      have   placed    interested
    parties on notice of the Attorney General's intent and enabled them
    to offer comment and argument about his authority to issue the
    Guidelines as proposed.        Cf. ConocoPhillips Co., 612 F.3d at 834.
    Indeed, the final Guidelines reflect that the Attorney General did
    receive and consider comments about SORNA's retroactivity. 73 Fed.
    Reg. at 38,031.       Consequently, we think the notice complied with
    both the letter and the spirit of § 553(b)(2).
    That brings us to Whitlow's second attack on the SMART
    Guidelines: that they did not validly extend SORNA to pre-Act
    offenders    because    they     "assumed"      retroactivity     rather      than
    "established" it.       The notion is that the proposed Guidelines
    simply restated the Attorney General's belief that the Interim Rule
    had already extended the law to pre-Act offenders.                    See 72 Fed.
    -11-
    Reg. at 30,212 ("SORNA's requirements apply to all sex offenders,
    including those whose convictions predate the enactment of the Act.
    The   Attorney   General    has    so    provided    in   [the     Interim   Rule]
    . . . .").     Thus, says Whitlow, the proposed Guidelines deprived
    interested parties of the opportunity to comment on retroactivity
    by treating it as a settled question.             Though ably advanced, this
    argument does not persuade us.
    Where an agency is accused of failing to provide adequate
    notice of the substance of the rules it is formulating, see
    
    5 U.S.C. § 553
    (b)(3), "[t]he essential inquiry is whether the
    commenters have had a fair opportunity to present their views on
    the contents of the final plan.           We must be satisfied . . . that
    given a new opportunity to comment, commenters would not have their
    first occasion to offer new and different criticisms."                   Natural
    Res. Def. Council, Inc. v. EPA, 
    824 F.2d 1258
    , 1283 (1st Cir. 1987)
    (quoting    BASF Wyandotte Corp. v. Costle, 
    598 F.2d 637
    , 642 (1st
    Cir. 1979)).     This question "always requires careful consideration
    on a case-by-case basis." 
    Id.
     (quoting BASF Wyandotte, 
    598 F.2d at 642
    ).   The essential requirement "is one of fair notice."                   Long
    Island Care at Home, Ltd. v. Coke, 
    551 U.S. 158
    , 174 (2007).
    Here, we are satisfied that would-be commenters had the
    requisite    opportunity.         Given    that     the   notice    of   proposed
    rulemaking specifically discussed retroactivity, and that the SMART
    Guidelines were intended to create a comprehensive regime that
    -12-
    could supplement or displace the Interim Rule, it was natural for
    interested parties to understand that they could and should offer
    input on retroactivity.            Cf. Int'l Union, United Mine Workers of
    Am. v. Mine Safety & Health Admin., 
    626 F.3d 84
    , 94 (D.C. Cir.
    2010) (notice was adequate "if interested parties should have
    anticipated that the [resulting] change was possible" (citation
    omitted)).    And, as noted above, the final Guidelines reflect that
    the Attorney General did receive comments on retroactivity, 73 Fed.
    Reg. at 38,035–36, and considered "the substantive merits" thereof,
    Stevenson, 
    676 F.3d at
    565 n.7; see also 75 Fed. Reg. at 81,850
    (noting that the comments received about retroactivity in response
    to the proposed Guidelines were similar to the comments received
    about the Interim Rule).               On this record, it would not constitute
    a   bait-and-switch        to    hold     that    the   SMART   Guidelines    validly
    extended SORNA to pre-Act offenders.                    See Stevenson, 
    676 F.3d at 565
    ; United States v. Mahoney, No. 11-CR-06-JL, 
    2013 WL 132460
    , at
    *5-6 (D.N.H. Jan. 9, 2013).
    Finally, Whitlow argues that the SMART Guidelines "tie
    retroactivity to SORNA implementation by a particular jurisdiction,
    and   thus    did     not       make     SORNA    retroactively     applicable     in
    jurisdictions       that    had    not    yet    implemented    SORNA,"     including
    Massachusetts       circa       2009.      He    relies,    however,   on    language
    addressing the implementing jurisdictions' obligations, not those
    of covered offenders.            See 73 Fed. Reg. at 38,063-64.             Indeed, a
    -13-
    number of other circuits have recognized that the passage in
    question   "addresses      the     state's     obligations    to    register   sex
    offenders, not the sex offender's obligation to register with the
    state, a duty which is separate and independent . . . from the
    state's duty to implement SORNA." United States v. Trent, 
    654 F.3d 574
    , 587 (6th Cir. 2011); see, e.g., United States v. Guzman, 
    591 F.3d 83
    , 94 (2d Cir. 2010) ("[T]he Attorney General has specified
    that an offender's obligation to register is not contingent on any
    jurisdiction's implementation of SORNA."); Gould, 
    568 F.3d at 463-64
     (holding that SORNA's "requirements to register and maintain
    registration        are   not    expressly      conditioned    on     a   State's
    implementation of the Act"); see also 75 Fed. Reg. at 81,850
    (distinguishing between SORNA's immediately applicable offender-
    registration        requirements     and     the   separate    jurisdictional-
    implementation standards).          We agree.
    Having determined that the SMART Guidelines are valid and
    do not condition retroactivity on the jurisdiction's implementation
    of   SORNA,    we    conclude    that   Whitlow    was   subject     to   SORNA's
    registration requirements when he moved from the District of
    Columbia to Massachusetts in 2009 and then failed to register as a
    sex offender in Massachusetts.          See Mass. Gen. Laws ch. 6, §§ 178C-
    178Q.   Consequently, he was properly subject to criminal liability
    under § 2250(a) for failing to satisfy those requirements.
    -14-
    III.   Conclusion
    For the foregoing reasons, we affirm the denial of
    Whitlow's motion to dismiss the indictment.
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