United States v. Francisco Torres ( 2014 )


Menu:
  •      Case: 09-50204   Document: 00512759912    Page: 1   Date Filed: 09/08/2014
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT     United States Court of Appeals
    Fifth Circuit
    FILED
    September 8, 2014
    09-50204
    Lyle W. Cayce
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee
    v.
    FRANCISCO TORRES,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Western District of Texas
    Before DAVIS, DENNIS, and COSTA, Circuit Judges.
    JAMES L. DENNIS, Circuit Judge:
    This appeal involves a single issue regarding the federal Sex Offender
    Registration and Notification Act of 2006 (“SORNA”). SORNA requires sex
    offenders to register with state-run sex-offender registries and to keep their
    registrations current. However, persons who were convicted of sex offenses
    before SORNA’s enactment on July 27, 2006 (“pre-enactment sex offenders”)
    are only required to comply with the statute’s registration requirements if and
    when the Attorney General so specifies in a “valid” regulation. See Reynolds
    v. United States, 
    132 S. Ct. 975
    , 979, 984 (2012) (construing 
    42 U.S.C. § 16913
    (a), (d)). The single question in this case is whether the Attorney
    General’s “interim rule” of February 28, 2007, which required pre-enactment
    Case: 09-50204        Document: 00512759912           Page: 2     Date Filed: 09/08/2014
    No. 09-50204
    sex offenders to comply with SORNA, was such a “valid” promulgation. For
    the reasons that follow, the answer, which is controlled in this circuit by United
    States v. Johnson, 
    632 F.3d 912
     (5th Cir. 2011), is yes, at least with respect to
    the defendant here, Francisco Torres. We therefore affirm his conviction.
    In 1999, Torres was convicted under the Uniform Code of Military
    Justice of violating Article 120, sodomy of a child under 12 years old, and
    Article 134, indecency with a child under 16 years old. In the initial years
    following his conviction, he registered as required under then-existing sex-
    offender-registration laws. On July 27, 2006, SORNA was enacted into law.
    From that date, July 27, 2006, until May 7, 2008, Torres failed to update his
    registration to reflect several changes in employment as required under
    SORNA.       On June 11, 2008, he was charged with failing to update his
    registration under 
    18 U.S.C. § 2250
    (a), which provides in relevant part that,
    “Whoever—[1] is required to register under [SORNA]; [2] is a sex offender as
    defined for purposes of [SORNA] by reason of a conviction under Federal law
    (including the Uniform Code of Military Justice); . . . and [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.” After the district
    court rejected several legal challenges to the charges, Torres and the
    government stipulated to his failure to update his registration between July
    27, 2006 and May 7, 2008. Following a bench trial, Torres was found guilty.
    On appeal, Torres’ argument proceeds in two steps. 1                      First, Torres
    contends that the period in which he did not update his registration to reflect
    changes in employment—July 27, 2006 to May 7, 2008—occurred before the
    1  The government contends that this argument was not sufficiently presented to the
    district court to preserve it for appeal and, therefore, the plain-error rule is invoked. See Fed.
    R. Crim. P. 52(b). However, because Torres’ argument fails under any standard of review,
    we need not determine whether the plain-error rule is applicable here.
    2
    Case: 09-50204          Document: 00512759912      Page: 3    Date Filed: 09/08/2014
    No. 09-50204
    effective date that SORNA began to apply to pre-enactment sex offenders such
    as himself under the terms of the statute. In other words, he argues that,
    during the time he committed his conduct of conviction, the statute did not yet
    prohibit such conduct. Second, Torres contends that since his conduct occurred
    before the effective date of the statute, his conviction violates the Ex Post Facto
    Clause. See U.S. Const. art. I, § 9, cl. 3 (“No . . . ex post facto Law shall be
    passed.”). 2 The first question then is when SORNA began applying to pre-
    enactment sex offenders such as Torres and whether such date was indeed, as
    Torres argues, after May 7, 2008, when his conduct (that is, his failure to
    update his registration) concluded.
    In Reynolds v. United States, the Supreme Court held that two provisions
    of SORNA—one that imposes the duty on sex offenders to register and keep
    the registration current, 3 and another that authorizes the Attorney General to
    specify the applicability of SORNA’s requirements to pre-enactment sex
    offenders 4—should be read together so as to provide that pre-enactment sex
    offenders are not required by SORNA to register and update their registrations
    unless and until the Attorney General so specifies in a “valid rule.” 
    132 S. Ct. at 979, 984
    . Thus, under Reynolds, the question of when SORNA began to
    apply to pre-enactment sex offenders turns on whether and when the Attorney
    General promulgated a “valid rule” specifying such application.
    2  To be clear, Torres does not make the sort of ex-post-facto argument that was
    asserted and rejected in United States v. Young, 
    585 F.3d 199
     (5th Cir. 2009). In Young, this
    court rejected the argument that, in short, SORNA’s registration regime as applied to persons
    who committed sex offenses before SORNA’s enactment operated to increase the punishment
    for those sex offenses after they had already been committed. Torres does not make that
    argument here. Rather, his argument is that, as a matter of statutory law, SORNA did not
    apply to him at the time he committed his conduct of conviction. Therefore, he argues, his
    conviction violates the Ex Post Facto Clause. Young did not address this argument. See
    Young, 
    585 F.3d at
    204 n.20.
    3   
    42 U.S.C. § 16913
    (a).
    4   
    Id.
     § 16913(d).
    3
    Case: 09-50204        Document: 00512759912          Page: 4     Date Filed: 09/08/2014
    No. 09-50204
    There are several possible instances when the Attorney General could
    have validly specified that pre-enactment sex offenders are required to register
    under SORNA, but only one of those instances was prior to the conclusion of
    Torres’ conduct of conviction, that is, before May 7, 2008. On February 28,
    2007, the Attorney General issued the “interim rule” that is at issue in this
    appeal. With unambiguous language, the interim rule decreed that SORNA’s
    registration requirements “apply to all sex offenders, including sex offenders
    convicted of the offense for which registration is required prior to the
    enactment of [SORNA].” See 
    72 Fed. Reg. 8894
    , 8897 (codified at 
    28 C.F.R. § 72.3
    ). The question is whether that rule was a “valid” promulgation. 5
    The circuit courts are divided on whether the interim rule of February
    28, 2007 is valid. Compare United States v. Reynolds, 
    710 F.3d 498
    , 524 (3d
    Cir. 2013) (invalid), United States v. Cain, 
    583 F.3d 408
    , 419-20 (6th Cir. 2009)
    (same), and United States v. Valverde, 
    628 F.3d 1159
    , 1166-69 (9th Cir. 2010)
    (same), with United States v. Gould, 
    568 F.3d 459
    , 470 (4th Cir. 2009) (valid),
    and United States v. Dean, 
    604 F.3d 1275
    , 1282 (11th Cir. 2010) (same). Here,
    Torres offers only a single argument for the interim rule’s invalidity. That is,
    he says that this court has already held in United States v. Johnson, 
    632 F.3d 912
     (5th Cir. 2011), that the interim rule is invalid. This argument is incorrect
    and, in fact, backward.
    In Johnson, this court addressed the claim that, in promulgating the
    interim rule, the Attorney General wrongfully failed to adhere to two
    requirements of the Administrative Procedure Act (“APA”). 
    Id. at 921
    . “Under
    5 The next instance in which the Attorney General could have validly required pre-
    enactment sex offenders to register under SORNA would have been July 2, 2008, when the
    Attorney General issued “final guidelines.” See 
    73 Fed. Reg. 38,030
    , 38,046. Because the
    final guidelines were not issued until after Torres’ conduct of conviction, they are not at issue
    here.
    4
    Case: 09-50204     Document: 00512759912    Page: 5   Date Filed: 09/08/2014
    No. 09-50204
    the APA, agencies issuing rules must publish notice of proposed rulemaking in
    the Federal Register and ‘shall give interested persons an opportunity to
    participate in the rule making’ by allowing submission of comments.” 
    Id.
     at
    927 (citing 
    5 U.S.C. § 553
    (b), (c)).    “In addition, the APA requires that
    publication of a substantive rule ‘shall be made not less than 30 days before its
    effective date.’”   
    Id.
     (citing 
    5 U.S.C. § 553
    (d)).   However, “both of these
    requirements may be bypassed if ‘good cause’ exists.” 
    Id.
     (citing 
    5 U.S.C. § 553
    (b)). The issue in Johnson was whether the Attorney General had “good
    cause” to forgo the APA’s requirements. Johnson held that he did not. 
    Id. at 930
    . However, Johnson did not end its analysis upon finding that the Attorney
    General had violated the APA, because “[t]he APA demands that courts
    reviewing agency decisions under the Act ‘[take] due account . . . of the rule of
    prejudicial error.’” 
    Id.
     at 930 (citing 
    5 U.S.C. § 706
    ). “In administrative law,
    as in federal civil and criminal litigation, there is a harmless error rule.” 
    Id.
    (quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 
    551 U.S. 644
    ,
    659-60 (2007)). Johnson ultimately concluded “that the Attorney General’s
    APA violations were harmless error.” Id. at 933.
    In holding that the APA violations were harmless, Johnson rejected the
    argument that the interim rule was invalid by dint of the APA violations
    (insofar as the rule applied to the defendant in that case, that is). Indeed, in
    so holding, Johnson cited the concurrence to the Eleventh Circuit’s decision in
    United States v. Dean, 
    604 F.3d 1275
     (11th Cir. 2010), which concluded that
    the court should “uphold the Attorney General’s interim rule.” 
    Id. at 1289
    (Wilson, J., concurring) (emphasis added). If Johnson did not intend to hold
    that the interim rule was valid and had the force of law, it is not apparent what
    else the court could have meant in the harmless error discussion. If Johnson
    had struck down the interim rule (as Torres believes to have been the case), it
    would mean that the court in Johnson went on to affirm a criminal conviction
    5
    Case: 09-50204    Document: 00512759912     Page: 6   Date Filed: 09/08/2014
    No. 09-50204
    despite recognizing that the defendant’s conduct of conviction did not fall
    within the ambit of the statute. See Johnson, 
    632 F.3d at 922
     (construing
    SORNA to apply to pre-enactment sex offenders only if there has been a
    regulation with the force of law from the Attorney General providing such).
    Torres offers no explanation for how Johnson could have affirmed a conviction
    based on conduct that was not illegal, nor is any explanation apparent. In
    short, Torres misreads Johnson. Johnson did not invalidate the Attorney
    General’s interim rule, but rather upheld it as applied to the defendant there,
    finding that the APA violations did not prejudice him.
    The reasons that Johnson found the Attorney General’s APA violations
    to be harmless to the defendant there apply with equal force to Torres. First,
    with respect to the requirement that regulations be published at least 30 days
    before their effective date, Johnson found the Attorney General’s violation of
    that provision to be harmless because the conduct of the defendant in that case
    occurred more than 30 days after the interim rule’s February 28, 2007,
    publication—i.e., after March 30, 2007. 
    Id. at 930
    . That is the case here too.
    Torres’ conduct of conviction continued until May 7, 2008, long after March 30,
    2007. Second, with respect to the requirement that interested persons be
    provided advanced notice of proposed rulemaking and afforded the opportunity
    to comment, Johnson found the violation of such to be harmless, reasoning
    essentially that, even though the rule was promulgated in the absence of a
    public comment period, the Attorney General considered and rejected
    arguments that were made against the rule and would have likely reached the
    same result regardless. 
    Id. at 931-33
    . There is no reason to think that this
    aspect of Johnson does not control here. As in Johnson, here too, “[t]here is no
    suggestion that, if given the opportunity to comment, [Torres] would have
    presented an argument the Attorney General did not consider in issuing the
    interim rule.” 
    Id. at 932
    .
    6
    Case: 09-50204         Document: 00512759912         Page: 7     Date Filed: 09/08/2014
    No. 09-50204
    It could be argued that Johnson was wrongly decided, 6 but we must
    follow it until the Supreme Court, this court sitting en banc, or Congress says
    otherwise. See Jacobs v. Nat’l Drug Intelligence Ctr., 
    548 F.3d 375
    , 378 (5th
    Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel
    of our court may not overturn another panel’s decision absent an intervening
    change in the law, such as by a statutory amendment, or the Supreme Court,
    or our en banc court.”). Johnson upheld the interim rule insofar as it affected
    the defendant there, and, under Johnson, we must do the same here.
    Torres argues that we should adopt that part of Johnson declaring APA
    violations but disregard that part of Johnson finding that the violations were
    harmless. We can do so, he says, because Johnson involved an “APA claim”
    while this case, given the citation to the Ex Post Facto Clause, involves a
    “constitutional claim.” This argument is without merit. The question in both
    Johnson and under the claim that Torres attempts to assert here is whether
    SORNA reached the defendant’s conduct of conviction at the time of that
    conduct, which in turn depends on whether the interim rule has the force of
    law or, on the contrary, is invalid.            In both Johnson and here, only one
    argument for the interim rule’s invalidity is offered—that the Attorney
    General ran afoul of the APA’s requirements. Thus, the question in both cases
    is the same: whether the Attorney General’s APA violations rendered the
    interim rule an invalid promulgation without the force of law.
    Because, under this circuit’s precedent, the interim rule is valid insofar
    as it affects Torres, and that rule required Torres, as a pre-enactment sex
    offender, to update his sex-offender registration under SORNA, it follows that
    Torres’ failure to do such violated SORNA. Torres’ argument under the Ex
    6   See United States v. Reynolds, 
    710 F.3d 498
    , 521-23 (3d Cir. 2013).
    7
    Case: 09-50204       Document: 00512759912          Page: 8     Date Filed: 09/08/2014
    No. 09-50204
    Post Facto Clause that his conduct of conviction occurred before the effective
    date that SORNA became applicable to him is without merit. Johnson compels
    us to conclude that SORNA became effective as to Torres on February 28, 2007,
    the date that the Attorney General issued his interim rule specifying SORNA’s
    applicability to pre-enactment sex offenders, and Torres’ failure to update his
    registration continued until after that date. 7
    AFFIRMED.
    7 Torres also asserts claims that he concedes are foreclosed under this court’s decisions
    in United States v. Whaley, 
    577 F.3d 254
     (5th Cir. 2009), and United States v. Heth, 
    596 F.3d 255
     (5th Cir. 2010). We agree that these claims are foreclosed and thus address them no
    further.
    8