United States v. Alexander Dejarnette, Jr. ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10606
Plaintiff-Appellee,
D.C. No.
v. 3:09-cr-00268-
SI-1
ALEXANDER DEJARNETTE, JR.,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted
January 14, 2013—San Francisco, California
Filed December 20, 2013
Before: John T. Noonan, A. Wallace Tashima,
and Susan P. Graber, Circuit Judges.
Opinion by Judge Tashima;
Dissent by Judge Graber
2 UNITED STATES V. DEJARNETTE
SUMMARY*
Criminal Law
The panel reversed a judgment of conviction for failure to
register as a sex offender in violation of the Sex Offender
Registration and Notification Act, and remanded for entry of
a judgment of acquittal.
The panel held that the Attorney General has not yet
“validly specifie[d]” that 42 U.S.C. § 16913(a)’s requirement
of registration in the jurisdiction of the sex-offense conviction
(if different from the jurisdiction of residence) applies to pre-
Act offenders like the defendant who were, at the time of
SORNA’s enactment and implementation, already subject to
sex offender registration obligations. The panel concluded
that the district court’s jury instruction erroneously permitting
the jury to convict solely on the basis of the defendant’s
failure to register in the jurisdiction of his sex-offense
conviction was not harmless.
Dissenting, Judge Graber wrote that the Attorney
General’s regulations validly specify that SORNA’s
registration requirements apply to all sex offenders, including
pre-SORNA offenders; that the defendant was notified of his
initial registration requirement in the jurisdiction of his sex-
offense conviction; and that the jury was properly instructed.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. DEJARNETTE 3
COUNSEL
Mark D. Eibert (argued), Half Moon Bay, California, for
Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney;
Melinda Haag, United States Attorney; Barbara J. Valliere,
Assistant United States Attorney, San Francisco, California,
for Plaintiff-Appellee.
OPINION
TASHIMA, Circuit Judge:
Alexander DeJarnette is a federal sex offender who failed
to register as such and was convicted of violating the Sex
Offender Registration and Notification Act (“SORNA”).
Pub. L. No. 109-248, 120 Stat. 587 (codified at 42 U.S.C.
§§ 16901 et seq., 18 U.S.C. § 2250 (2006)). On appeal, he
challenges the district court’s interpretation of SORNA as
imposing upon him an obligation to register in the jurisdiction
of his sex-offense conviction, the Northern District of
California, even though the evidence shows that he resided in
a different jurisdiction (the State of Georgia) throughout the
period charged in his indictment. He contends that, because
he had no legal duty to register in the Northern District of
California, the district court’s contrary jury instruction was
erroneous as a matter of law, venue was improper in the
Northern District of California, and his nonregistration
conviction is not supported by sufficient evidence. We have
jurisdiction under 28 U.S.C. § 1291 and, for the following
reasons, we reverse the conviction.
4 UNITED STATES V. DEJARNETTE
I.
In 2001, in the U.S. District Court for the Northern
District of California, DeJarnette was convicted of two counts
of transporting minors with intent to engage in prostitution
and criminal sexual activities, in violation of 18 U.S.C.
§ 2423(a), and one count of transportation with intent to
engage in prostitution and criminal sexual activity, in
violation of 18 U.S.C. § 2421. In his guilty plea, DeJarnette
acknowledged that he may be required to register as a sex
offender under state or federal law. He was sentenced to 96
months’ imprisonment and 36 months’ supervised release.
Corrections officials at the United States Penitentiary in
Lompoc, California, where DeJarnette was incarcerated,
informed him of his duty to register as a sex offender in any
state where he resided, was employed, or attended school;
DeJarnette refused to sign the notification form.
DeJarnette entered the supervised-release program in
2006. The terms of his supervised release prohibited
DeJarnette from leaving the judicial district without
permission of the court or a probation officer. With regard to
sex-offender registration, the terms of his supervised release
additionally stated:
If required by the state to which the defendant
is released from custody, and if so directed by
the U.S. Probation Officer, the defendant is
ordered to report, as directed by the United
States Probation Officer, to the local law
enforcement authority so that they may
determine whether he must register as a sex
offender.
UNITED STATES V. DEJARNETTE 5
Judgment at 4, United States v. DeJarnette, No. 3:99-cr-
003510SI-1 (N.D. Cal. Feb. 21, 2001), ECF No. 116.
In January 2007, a federal probation officer notified
DeJarnette of his duty under California law to register as a
sex offender; he refused to sign the notification form.
DeJarnette asserts that he then unsuccessfully challenged the
registration requirement in state court.
Later that month, the probation officer petitioned the
district court in the Northern District of California for a
supervised release violation summons, alleging that
DeJarnette had violated the terms of his supervised release by
failing to register as a sex offender. DeJarnette was found
guilty of violating several other conditions of his supervised
release, and the court warned DeJarnette to register as a sex
offender by March 13, 2008, or else be found in violation of
the registration condition as well. A warrant was issued for
his arrest. DeJarnette did not register.
On March 17, 2008, the government asked the district
court to impose an additional supervised release condition
requiring that DeJarnette register as a sex offender pursuant
to SORNA. DeJarnette absconded.1
Authorities apprehended DeJarnette in Atlanta, Georgia,
in December 2008. He maintains that he resided in Georgia
in the months preceding his arrest. DeJarnette had not
registered as a sex offender in Georgia.
1
DeJarnette later admitted that he left the Northern District of
California, without permission, in March 2008.
6 UNITED STATES V. DEJARNETTE
In March 2009, a grand jury in the Northern District of
California indicted DeJarnette on charges of violating
SORNA by failing to register as a sex offender beginning on
or about March 14, 2008. The district court dismissed the
indictment, holding that it violated the terms of DeJarnette’s
plea agreement. The government appealed, and this Court
reversed and remanded. United States v. DeJarnette, 403 F.
App’x 188 (9th Cir. 2010).
SORNA was enacted on July 27, 2006 – more than five
years after DeJarnette was convicted of a registrable sex
offense. In 2010, we determined that SORNA’s “retroactivity
provision” – the provision that imposes registration
requirements on pre-Act offenders like DeJarnette – “did not
become effective until August 1, 2008.” United States v.
Valverde, 628 F.3d 1159, 1160 (9th Cir. 2010). In response
to our Valverde decision, the government obtained a
superseding indictment that charged DeJarnette with violating
SORNA by failing to register as a sex offender in the
Northern District of California between August 2, 2008 and
December 27, 2008.
Before trial, DeJarnette objected to the government’s
proposed jury instruction setting forth the registration
requirements under SORNA. The proposed instruction stated
in pertinent part:
SORNA requires a sex offender initially to
register in the jurisdiction in which the sex
offender was convicted of the sex offense that
led to the registration requirement, if this
jurisdiction is different from the jurisdiction
of residence.
UNITED STATES V. DEJARNETTE 7
United States’ Proposed Jury Instructions at 36, ECF No. 197.
DeJarnette argued that the instruction misstated the law and
that he was under no SORNA obligation to register in the
Northern District of California. The government construed
DeJarnette’s opposition to the instruction as a claim of
improper venue and asked the court for a pretrial ruling on
venue, so as to preserve the government’s right to appeal an
adverse ruling before jeopardy attached. On the eve of trial,
the district court ruled that DeJarnette “had a duty to
complete his initial registration pursuant to SORNA in the
district in which he was convicted – this [Northern] District
[of California] – even if it was different from his jurisdiction
of residence at that time[,]” and that the jury would be so
instructed. Order, ECF No. 205.
At the conclusion of a two-day trial, the jury was
instructed that “SORNA requires a sex offender initially to
register in the jurisdiction in which the sex offender was
convicted of the sex offense that led to the registration
requirement, if this jurisdiction is different from the
jurisdiction of residence.” Instructions to Jury at 6, ECF No.
214. The jury was also instructed on the elements of the
nonregistration offense, including the government’s burden
of showing “[t]hat during the time in between August 2, 2008
and December 27, 2008 in the Northern District of California,
the defendant knowingly failed to register or keep his
registration current as required by SORNA.” Id. DeJarnette
was convicted and sentenced to 37 months’ imprisonment
followed by five years’ supervised release.2
2
DeJarnette was released from custody in December 2011. He failed to
report to his probation officer and was a fugitive when his opening brief
was filed. He has since been rearrested.
8 UNITED STATES V. DEJARNETTE
II.
We review de novo the district court’s interpretation of
SORNA. See United States v. Mattix, 694 F.3d 1082, 1084
(9th Cir. 2012); United States v. Begay, 622 F.3d 1187, 1193
(9th Cir. 2010). We also review de novo DeJarnette’s
challenges to the jury instructions, the sufficiency of the
evidence, and the propriety of venue. See United States v.
Sullivan, 522 F.3d 967, 974 (9th Cir. 2008); United States v.
Valdez-Santos, 457 F.3d 1044, 1046 (9th Cir. 2006); United
States v. Shipsey, 363 F.3d 962, 967 n.3 (9th Cir. 2004).
III.
A.
SORNA requires that all state and federal sex offenders
“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.” 42 U.S.C.
§ 16913(a). Subsection (a) of the statute further provides
that, “[f]or 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.Subsection (b) then explains that offenders “shall initially
register” as follows:
(1) before completing a sentence of
imprisonment with respect to the offense
giving rise to the registration requirement; or
UNITED STATES V. DEJARNETTE 9
(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.
§ 16913(b). As the text makes clear, subsection (b) sets forth
a forward-looking scheme: it addresses offenders who, at the
time of SORNA’s enactment, were not yet subject to
reporting obligations because they were still incarcerated,
§ 16913(b)(1), or had not yet been sentenced for the sex
offense, § 16913(b)(2). Thus, the “initial registration”
scheme described in subsections (a) and (b) does not, by its
terms, apply retroactively to pre-Act offenders – individuals
like DeJarnette, whose 2001 sex-offense convictions long
pre-date SORNA’s 2006 enactment. See Reynolds v. United
States, 132 S. Ct. 975, 982 (2012) (noting that subsection (b)
“says nothing about when a pre-Act offender who completed
his prison term pre-Act must register”).
The government argues the “initial registration”
requirement of registration in the jurisdiction of the sex
offense conviction (where different from the jurisdiction of
residence) nonetheless applies to pre-Act offenders like
DeJarnette. It points to subsection (d) of the statute, which
carries the title “[i]nitial registration of sex offenders unable
to comply with subsection (b).” § 16913(d). Subsection (d)
states in full:
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
10 UNITED STATES V. DEJARNETTE
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).
Id.
Pursuant to the delegation of subsection (d)’s rulemaking
authority, the Attorney General promulgated guidelines called
Sentencing Monitoring, Apprehending, Registering, and
Tracking – the “SMART” guidelines. See 72 Fed. Reg.
30,210 (May 30, 2007) (preliminary guidelines); 78 Fed. Reg.
38,030 et seq. (July 2, 2008) (final guidelines). The Supreme
Court has since determined that SORNA does not “require[]
pre-Act offenders to register before the Attorney General
validly specifies that the Act’s registration provisions apply
to them.” Reynolds, 132 S. Ct. at 982. Thus, we ask whether
the Attorney General has “validly specifie[d]” that subsection
(a)’s requirement of “initial registration” in the jurisdiction of
the sex-offense conviction (where different from the
jurisdiction of residence) applies to offenders like DeJarnette
– offenders who were, at the time of SORNA’s enactment
and implementation, already subject to sex-offender
registration obligations under a pre-SORNA scheme. We
conclude that he has not.
1. SMART Guidelines
The SMART guidelines declare that “SORNA applies to
all sex offenders, including those convicted of their
registration offenses prior to the enactment of SORNA.” The
UNITED STATES V. DEJARNETTE 11
National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38,030, 38,063 (July 2, 2008)
(“SMART Guidelines”). The guidelines also acknowledge,
however, that “the normal initial registration
procedure . . . will not be feasible in relation to certain special
classes of sex offenders.” Id. The “specific problem,”
according to the guidelines, “is one of timing”:
[I]t is not always possible to carry out the
initial registration procedures for sex
offenders who are required to register under
SORNA prior to release from imprisonment
(or within three days of sentencing) for the
registration offense. The situations in which
there may be problems of this type, and the
rules adopted for those situations are as
follows . . . .
Id.Then, under the heading “Retroactive Classes,” the
guidelines go on to provide three examples that purportedly
illustrate the initial registration of pre-Act offenders and
announce the “rules adopted” for such offenders. Id. The
first and second examples concern offenders like DeJarnette:
“sex offenders with pre-SORNA or pre-SORNA
implementation convictions who remain in the prisoner,
supervision, or registered sex offender populations at the time
of implementation.” Id. For such offenders, the guidelines
state that “jurisdictions should endeavor to register them in
conformity with SORNA as quickly as possible, including
fully instructing them about the SORNA requirements,
obtaining signed acknowledgments of such instructions, and
12 UNITED STATES V. DEJARNETTE
obtaining and entering into the registry all information about
them required under SORNA.” Id.In the government’s view, the last-quoted sentence shows
that the guidelines require offenders like DeJarnette to
“initially register . . . as quickly as possible” in the
jurisdictions of their sex-offense convictions. As an initial
matter, we note that the quoted language is addressed to
jurisdictions, not offenders.3 We question whether this
jurisdiction-directed language “validly specifies that the Act’s
[initial] registration provisions apply” to any pre-Act
offenders.4 Reynolds, 132 S. Ct. at 982. But we leave that
question for another day because, to the extent that the
guidelines apply subsection (a)’s initial registration
requirement to any pre-Act offenders, they do so only for the
subset of pre-Act offenders who were not already subject to
registration requirements under pre-SORNA law. We reach
this conclusion following a careful examination of the
guideline examples that announce the “rules adopted” for pre-
Act offenders who remained on supervised release at the time
3
See SMART Guidelines, 73 Fed. Reg. at 38,063 (“[J]urisdictions
should endeavor to register them in conformity with SORNA as quickly
as possible . . . .” (emphasis added)); id. (“Jurisdictions are accordingly
authorized to phase in SORNA registration for such sex offenders in
conformity with the [periodic in-person] appearance schedule of SORNA
§ 116[, 42 U.S.C. 16916].” (emphasis added)); id. at 38,063–64 (“In other
words, sex offenders . . . must be registered by the jurisdiction when it
implements the SORNA requirements in its system . . . .” (emphasis
added)).
4
In the same vein, our dissenting colleague assumes without discussion
that a regulation directed to registering jurisdictions that such jurisdictions
should “endeavor to register [pre-SORNA offenders] in conformity with
SORNA as quickly as possible,” is sufficient notice to a pre-SORNA
offender of his obligation to register. See Dissent at 35–36.
UNITED STATES V. DEJARNETTE 13
of SORNA’s implementation.5 SMART Guidelines, 73 Fed.
Reg. at 38,063.
“Example 1” describes a pre-Act offender who was “not
registered near the time of sentencing or before release from
imprisonment, because the state did not require registration
for the offense in question at the time.” Id. The guidelines
state that it will be “impossible” to register such an offender
“near the time of his sentencing or before his release from
imprisonment, because that time is past.” Id. This example
also discusses a pre-Act offender under American Indian
tribal law who “may not have been registered near the time of
sentencing or release because the tribe had not yet established
any sex offender registration program at the time.” Id. Such
an offender would be required to register “by the SORNA
standards” if he or she remained under supervision when the
tribe implemented SORNA, “but the normal time frame for
initial registration under SORNA will have passed . . . , so
registration within that time frame is impossible.” Id.
5
The dissent observes that the guidelines’ examples are only illustrative.
Dissent at 36. While this may be true, nonetheless, the examples clarify
the meaning of the text to which they apply. See Tull v. United States,
69 F.3d 394, 397–98 (9th Cir. 1995) (concluding that examples offered in
Treasury regulations, “[w]hile . . . not directly on point, . . . are redolent
with meaning both in what they do say and in what they do not say”). We
do not claim the examples’ support because they are “identical to
Defendant’s situation.” Dissent at 36. Rather, “what [the examples] do
say and . . . do not say” – their referring to a pre-Act offender as “initially
registered” under a pre-SORNA scheme and their failure to say anything
about initial registration in the offender’s jurisdiction of conviction, see
infra – leads us to our conclusion.
14 UNITED STATES V. DEJARNETTE
Example 1 suggests that, to the extent the Attorney
General has applied “initial registration” to pre-Act offenders
at all, that application is limited to offenders who – like the
offenders in example 1 – had no registration obligations prior
to SORNA. By contrast, DeJarnette has been subject to
registration requirements under California law since 2006,
when he was released from custody and entered the
supervised release program.6
“Example 2” suggests that a registration obligation under
a pre-SORNA scheme operates as the initial registration of a
pre-Act offender. SMART Guidelines, 73 Fed. Reg. at
38,063. This example describes an offender who “was
initially registered prior to his release from imprisonment on
the basis of the jurisdiction’s existing law,” but was not
subject to an ongoing registration requirement resembling
SORNA’s periodic in-person verification scheme. Id.; see
42 U.S.C. § 16916. The guidelines state that such an offender
“will have to be required to appear periodically for
6
DeJarnette’s state-law registration obligation remained in effect on
August 1, 2008 – the date on which SORNA’s retroactivity provision
became effective. See Valverde, 628 F.3d at 1160. Accordingly, we need
not and do not determine whether the Attorney General has articulated
with sufficient clarity the initial registration requirement that applies to
pre-Act offenders who were under no existing registration obligations on
August 1, 2008.
We express no view as to whether DeJarnette, a federal sex offender,
also had an existing registration obligation under SORNA’s precursor, the
Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act (“Wetterling Act”), Pub. L. No. 103-322, §§ 170101-
170303, 108 Stat. 1796, 2038–45 (1994).
UNITED STATES V. DEJARNETTE 15
verification.” SMART Guidelines, 73 Fed. Reg. at 38,063.
Example 2’s use of the phrase “initially registered” in
connection with a pre-SORNA registration scheme tells us
that “initial registration” is not a term of art; it simply refers
to the first time that an offender is required to register.
We also find it telling that periodic in-person verification
is the only SORNA registration obligation that Example 2
imposes on pre-Act offenders who were subject to existing
registration obligations when SORNA went into effect.7 The
Attorney General could have used this example to also
impose the requirement of registration in the jurisdiction of
conviction where different from the jurisdiction of residence;
he did not. We cannot help but conclude that the SMART
guidelines do not apply the requirement of initial registration
in the jurisdiction of conviction to pre-Act offenders who,
like DeJarnette, were subject to existing registration
obligations upon SORNA’s enactment and implementation.
Such offenders either initially register under an existing state
or federal scheme, or they violate state or pre-SORNA federal
7
The fact that “the offender in Example 2 was already part of an earlier
registered sex offender population,” Dissent at 37, does not explain away
the example’s failure to mention anything about “initial registration” in the
offender’s jurisdiction of conviction. Under the dissent’s reading of
“initial registration,” the fact of an offender’s prior registration is
irrelevant to the offender’s obligation to register in her jurisdiction of
conviction: even registered pre-Act offenders would be required to
register “initially” in their jurisdictions of conviction. The example’s
failure to mention such a requirement is equally anomalous whether the
sex offender is or is not “part of an earlier registered sex offender
population.” Thus, we find the anomaly telling.
16 UNITED STATES V. DEJARNETTE
law by failing to do so.8 In any event, they have no initial
registration obligations under SORNA § 16913(a).9
2. Codified Examples
Our conclusion finds further support in the Department of
Justice’s most recent codification of rules regarding
SORNA’s retroactive applicability. See 28 C.F.R. § 72.3(2011). The retroactivity regulation begins with the familiar
refrain that “[t]he requirements of [SORNA] apply to all sex
offenders,” including pre-Act offenders. Id. But the
regulation goes on to provide two illustrations, both of which
suggest that an offender’s pre-SORNA registration obligation
is an “initial registration”:
Example 1. A sex offender is federally
convicted of aggravated sexual abuse under
18 U.S.C. 2241 in 1990 and is released
8
SORNA did not absolve pre-Act offenders of their existing
registration obligations. See United States v. Kebodeaux, 133 S. Ct. 2496,
2502 (2013) (sex offender convicted of failure to register under SORNA
was subject, at the time of his sex offense conviction, to registration
obligations under the federal Wetterling Act); Carr v. United States,
560 U.S. 438, 130 S. Ct. 2229, 2238–39 (2010) (noting that “federal sex-
offender registration laws have, from their inception, expressly relied on
state-level enforcement” and that SORNA serves to “strengthen state
enforcement of registration requirements”).
9
That DeJarnette failed to register under California law, despite an
obligation to do so, has no bearing on the issue before us. Our task is
simply to determine whether SORNA imposed upon DeJarnette an
obligation to register in the jurisdiction of his conviction, which was
indisputably different from his jurisdiction of residence at all relevant
times. We conclude, based on the language of the statute and
implementing guidelines, that it does not.
UNITED STATES V. DEJARNETTE 17
following imprisonment in 2007. The sex
offender is subject to the requirements of
[SORNA] and could be held criminally liable
under 18 U.S.C. 2250 for failing to register or
keep the registration current in any
jurisdiction in which the sex offender resides,
is an employee, or is a student.
Id. Example 1 applies the ongoing registration requirement
described in § 16913(a) – registration in the jurisdictions of
residence, employment, and education – while notably
omitting any mention of registration in the jurisdiction of
conviction. Expressio unius est exclusio alterius and,
accordingly, we again question whether the Attorney General
has applied the requirement of registration in the jurisdiction
of conviction to any pre-Act offenders. But, as we have said,
the case before us concerns only one subcategory of pre-Act
offenders – offenders who were already subject to registration
obligations when SORNA took effect – and we decide only
the case before us.
The second example addresses such offenders:
Example 2. A sex offender is convicted by a
state jurisdiction in 1997 for molesting a child
and is released following imprisonment in
2000. The sex offender initially registers as
required but relocates to another state in 2009
and fails to register in the new state of
residence. The sex offender has violated the
requirement under [SORNA] to register in any
jurisdiction in which he resides, and could be
held criminally liable under 18 U.S.C. 2250
18 UNITED STATES V. DEJARNETTE
for the violation because he traveled in
interstate commerce.
28 C.F.R. § 72.3 (emphasis added). Like the SMART
guidelines, Example 2 of the codified regulations specifically
addresses pre-Act offenders who were subject to existing
reporting obligations, and it expressly refers to a pre-SORNA
registration as an “initial” registration. Example 2 then
applies to such pre-Act offenders the ongoing registration
requirements of § 16913(a) & (c) – that is, registration in the
jurisdictions of residence, employment, or education, and the
requirement to keep the registration current following a
change of jurisdiction – rather than § 16913(a)’s “initial
registration” requirement of registration in the jurisdiction of
conviction.
* * *
We have searched in vain for any indication that the
Attorney General has applied the “initial registration”
requirement of registration in the jurisdiction of conviction,
§ 16913(a), to pre-Act offenders who were already required
to register under some pre-SORNA scheme.10 But we are not
surprised by the Attorney General’s silence. In fact, we think
it comports with the ordinary meaning of the word “initial” as
10
Emblematic of the weakness of the dissent’s position is its reliance on
the Attorney General’s statement that “SORNA applies to all sex
offenders.” Dissent at 34 (quoting 73 Fed. Reg. at 38,063 (emphasis
added by dissent)). But this general statement says nothing about when,
how, and under what circumstances a pre-SORNA offender is required to
register or initially register.
UNITED STATES V. DEJARNETTE 19
“of or relating to the beginning,” “incipient,” or “first.”11 If
“initial registration” simply refers to the first time that an
offender registers – whether under SORNA or some pre-
existing scheme – then the Attorney General quite sensibly
did not apply the initial registration requirement of
§ 16913(a) to such pre-Act offenders.12 Indeed, it is only by
contorting the English language that a pre-Act offender can
11
Initial, MERRIAM-WEBSTER, http://www.merriam-webster.com/
dictionary/initial (last visited December 3, 2013).
12
Our dissenting colleague contends that, were we to attend to “the
broader purpose and structure of the [Initial Registration] section,” Dissent
at 36, we would conclude that the Attorney General had applied the initial
registration requirement of § 16913(a) to offenders like DeJarnette, id. at
34–37. We disagree. The paragraph on which the dissent relies to support
this contention also omits any mention of “initial registration” in pre-Act
offenders’ jurisdictions of conviction. SMART Guidelines, 73 Fed. Reg.
at 38,063. Indeed, the jurisdiction in which a pre-Act offender lives,
works, or studies could perform all of the functions listed in the paragraph
equally as well as, if not better than, his jurisdiction of conviction. Cf. id.
at 38,061 (indicating that the initial registration requirement seeks to
ensure registration by the jurisdiction “in the best position initially to [do
so]”).
The paragraph’s use of the term “re-registering” does not alter our
conclusion. The jurisdiction in which a sex offender lives, works, or
studies might also need to “re-register[]” the offender when undertaking
to register pre-Act offenders “in conformity with SORNA.” Id. at 38,063;
see also 42 U.S.C. § 16913. The facts that (a) the example and following
paragraph are equally as consistent with a scheme of “re-regist[ration]” in
the jurisdiction of residence, work, or study, and (b) neither the example
nor the paragraph mentions anything about “initial registration” in the
jurisdiction of conviction suggest that the Attorney General did not intend
for a second, “initial” registration in an offender’s jurisdiction of
conviction. Even if the guidelines were unclear on the point, we would
conclude that the principle of lenity counsels in favor of our approach.
See United States v. Bass, 404 U.S. 336, 347 (1971).
20 UNITED STATES V. DEJARNETTE
“initially” register – for a second time – if that offender has
already registered under state or pre-SORNA federal law.13
B.
Our dissenting colleague argues that § 16913(a) mandates
“initial registration” (and, accordingly, registration in the
jurisdiction of conviction) for all sex offenders. Dissent at
31–32. On this view, subsection (a) sets forth the substantive
requirements related to initial registration, and subsection (b)
is procedural – it relates solely to the timing of initial
registration. Subsection (d) acknowledges that some
offenders will be “unable to comply” with the procedure
outlined in subsection (b), and it delegates to the Attorney
General a narrow power to prescribe rules for offenders who
cannot comply with the timing requirements of subsection
(b). In the dissent’s view, the Attorney General’s regulation
does not alter the substantive requirements of subsection (a)
– most notably, the initial registration requirement of
registration in the jurisdiction of conviction. See Dissent at
34. We disagree, for three reasons.
13
We note that in the context of an offender’s standing to challenge
SORNA’s delegation of rulemaking authority to the Attorney General
under § 16913(d), sister circuits have held that “sex offenders who were
convicted prior to SORNA’s enactment and who already initially
registered as sex offenders with their respective states” lacked standing to
bring a nondelegation challenge because such offenders were able to
comply with the initial registration requirement, and subsection (d)
delegates the authority to make rules for “offenders who are unable to
comply” with the initial registration procedure outlined in subsection (b).
United States v. Guzman, 591 F.3d 83, 92 (2d Cir. 2010) (citing cases).
In other words, we are not the first circuit to conclude that a pre-SORNA
registration obligation operates as the “initial registration” of a pre-Act
offender.
UNITED STATES V. DEJARNETTE 21
First, the argument assumes that “initial registration”
means something other than the first time an offender
registers, and that the term instead encompasses a substantive
requirement of registration in the jurisdiction of conviction as
provided by subsection (a). It bears repeating that this
assumption runs counter to the plain meaning of “initial.”
The assumption is also seriously undermined by the Attorney
General’s own use of the term “initial registration” when
describing registration under a pre-SORNA scheme.14 If the
Attorney General disagrees with our reading of the statute
and implementing guidelines, he is free to specify – with
what we hope will be some measure of clarity, and with
language directed at the offenders rather than the
implementing jurisdictions15 – whether, when, and how a pre-
Act offender is required to “initially register” in the
jurisdiction of the underlying sex-offense conviction. He has
not yet done so and we cannot amend the regulation on the
Attorney General’s behalf.
Second, even if “initial registration” meant something
other than the first time that an offender registers, we see no
reason to assume that the Attorney General was mandated to
apply all of SORNA’s registration requirements to all pre-Act
offenders. The Attorney General’s authority under subsection
(d) is a broad one: it is an authority to “specify whether
[SORNA] applie[s] to individuals convicted of a sex offense
14
See SMART Guidelines, 73 Fed. Reg. at 38,063 (giving the example
of a pre-Act offender who “initially registered” under a pre-SORNA law
that did not require periodic in-person verification); 28 C.F.R. § 72.3(giving the example of a pre-Act offender who is released from custody
in 2000 and “initially registers as required but relocates” to a new state
without registering).
15
Cf. SMART Guidelines, 73 Fed. Reg. at 38,063.
22 UNITED STATES V. DEJARNETTE
before the statute’s July 2006 enactment.” Valverde,
628 F.3d at 1163 (emphasis added); see also United States v.
Johnson, 632 F.3d 912, 923 (5th Cir. 2011) (holding that
subsection (d) “delegates to the Attorney General the decision
of whether and how the SORNA registration requirements
apply to offenders with pre-enactment convictions”
(emphases added)); United States v. Madera, 528 F.3d 852,
858 (11th Cir. 2008) (“Subsection (d) . . . granted the
Attorney General unfettered discretion to determine both how
and whether SORNA was to be retroactively applied.”). The
dissent’s narrow view of this delegated power is, in essence,
the view expressed by the dissenting Justices in Reynolds and
rejected by a majority of the Supreme Court.16 We are bound
by Reynolds, which teaches that “the Act’s registration
requirements do not apply to pre-Act offenders until the
Attorney General so specifies.” 132 S. Ct. at 984. If one of
those registration requirements is, as argued by our dissenting
colleague, the requirement of “initial registration” in the
jurisdiction of conviction, where different from the
jurisdiction of residence, then the requirement cannot apply
to DeJarnette “until the Attorney General so specifies” – and
that he has not yet done.
Third, we believe that our approach better comports with
the purpose and structure of the initial registration
requirement. That requirement seeks primarily to ensure the
16
Compare Reynolds, 132 S. Ct. at 986 (Scalia, J., dissenting) (“[I]t is
simply implausible that the Attorney General was given discretion to
determine whether coverage of pre-Act offenders (one of the purposes of
the Act) should exist.”), with id. at 984 (majority opinion) (“There
is . . . no need to read the language [of subsection (d)] unnaturally as
giving the Attorney General the authority only to make exceptions from
an implicit (unstated) rule that would otherwise apply the new registration
requirements to all pre-Act offenders across the board and immediately.”).
UNITED STATES V. DEJARNETTE 23
timely receipt, verification, and posting of registration
information, as well as to notify offenders of their obligations
under SORNA. See SMART Guidelines, 73 Fed. Reg. at
38,063. These objectives are not served by requiring pre-Act
offenders like DeJarnette to travel back to their jurisdictions
of conviction to file potentially duplicative registrations of
the registrations filed in their jurisdictions of residence, work,
or study. We agree with our dissenting colleague that
Congress intended with SORNA to make a more uniform and
effective registration system. Dissent at 38 (citing Reynolds,
132 S. Ct. at 978, 981). But we disagree that our approach
disserves that end.17 “[J]urisdictions” must still register pre-
Act offenders “in conformity with SORNA,” SMART
Guidelines, 73 Fed. Reg. at 38,063, thereby creating a
uniform registration system. But, at most, only an offender’s
jurisdiction of residence, work, or study need “re-register[]”
him. Id. The purposes of the initial registration requirement
are not served by a contrary rule. Again, if the Attorney
General disagrees with our reading of the guidelines, he may
so specify.
IV.
We conclude that the Attorney General has not yet
“validly specifie[d]” that SORNA § 16913(a)’s requirement
of registration in the jurisdiction of the sex-offense conviction
(if different from the jurisdiction of residence) applies to pre-
Act offenders who were, at the time of SORNA’s enactment
17
We note that the dissent’s approach, in requiring potentially
duplicative registrations, could increase delays in processing of pre-Act
offenders by increasing a backlog of registrations. Cf. SMART
Guidelines, 73 Fed. Reg. at 38,063–64 (taking steps to accommodate and
relieve that anticipated backlog).
24 UNITED STATES V. DEJARNETTE
and implementation, already subject to sex offender
registration obligations. Reynolds, 132 S. Ct. at 982.
DeJarnette is a federal sex offender whose jurisdiction of
conviction, the Northern District of California, is not the
same as his jurisdiction of residence during the charged
period: the State of Georgia. Accordingly, we agree with
DeJarnette that the district court gave an erroneous jury
instruction, and we conclude that the error was not harmless.
A.
DeJarnette’s superseding indictment charged that
“[b]eginning on or about August 2, 2008, and continuing
through at least December 27, 2008, in the Northern District
of California,” DeJarnette “did knowingly fail to register as
required by the Sex Offender Registration and Notification
Act, all in violation of Title 18, United States Code, section
2250(a).” DeJarnette has consistently maintained that he
resided in Georgia during the period charged in the
indictment. At trial, DeJarnette’s probation officer – a
government witness – testified that DeJarnette resided in
Atlanta during the charged period, and the government
essentially conceded that DeJarnette was not in the Northern
District of California during the relevant dates. Instead, the
government argued that DeJarnette was required to register in
the Northern District of California, the jurisdiction of his sex-
offense conviction, by virtue of SORNA’s “initial
registration” requirement.
Consistent with the government’s view, the jury was
instructed on the elements of the failure-to-register offense,
as follows:
UNITED STATES V. DEJARNETTE 25
First: That the defendant is a sex offender
for purposes of SORNA, by reason of a
conviction under federal law;
Second: That the defendant is required to
register under SORNA; and
Third: That, during the time in between
August 2, 2008 and December 27, 2008 in the
Northern District of California, the defendant
knowingly failed to register or keep his
registration current as required by SORNA.
Instructions to Jury at 6, ECF No. 214. The instructions then
elaborated on the initial registration requirement:
SORNA requires a sex offender initially to
register in the jurisdiction in which the sex
offender was convicted of the sex offense that
led to the registration requirement, if this
jurisdiction is different from the jurisdiction
of residence.
SORNA requires a sex offender to
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.
Id. The instructions contained an error of law in that they
permitted the jury to convict solely on the basis of
DeJarnette’s failure to register in the jurisdiction of his sex
offense conviction. See id. We therefore turn to whether the
error is cause for reversal.
26 UNITED STATES V. DEJARNETTE
B.
DeJarnette’s claim of error relating to the jury
instructions, preserved by way of objection at trial, is subject
to harmless-error analysis. See United States v. Munguia,
704 F.3d 596, 598 (9th Cir. 2012). “An error in describing an
element of the offense in a jury instruction is harmless only
if it is clear beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error.” Id.
at 604 (internal quotation marks omitted).
We conclude that the error is harmful because the
government presented no evidence indicating that DeJarnette
resided, was employed, or was a student in the Northern
District of California during the charged period. Thus, absent
the incorrect instruction regarding DeJarnette’s duty to
register in the jurisdiction of his sex-offense conviction (the
Northern District of California), the jury could not have
returned a finding of guilt.
The government correctly notes that SORNA also
imposes an ongoing registration requirement on sex offenders
and, citing that requirement, the government argues that the
district court properly instructed the jury that DeJarnette was
required to “keep his registration current” in the Northern
District of California.18 Although the jury was indeed
permitted to find guilt if DeJarnette failed to “keep the
registration current, in each jurisdiction where the offender
resides,” the presence of this instruction does not render
harmless the earlier instruction error.
18
Although the government’s argument is not framed in terms of
harmless error, we find it applicable in this context.
UNITED STATES V. DEJARNETTE 27
Subsection (c) of the statute sets forth the keeping-current
requirement:
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.
42 U.S.C. § 16913(c). As a pre-Act offender, DeJarnette can
only be punished for nonregistration offense conduct
occurring on or after August 1, 2008 – the date on which
SORNA’s retroactivity provision took effect – and there is no
evidence that DeJarnette violated subsection (c) on or after
that date. See Valverde, 628 F.3d at 1160.
The evidence indicates that DeJarnette was last seen in
California in March 2008, and that he resided in Georgia
continuously during the period charged in the indictment,
August 2, 2008, through December 27, 2008.19 A violation
of the keeping-current requirement occurs when an offender
fails to update his registration within “3 business days after
each change of . . . residence,” § 16916(c), and the evidence
shows that DeJarnette’s offense conduct (leaving California)
occurred several months prior to the charged period and
several months before August 1, 2008. As such, it was not
possible for the jury to convict on the alternative ground that
DeJarnette violated subsection (c).
19
According to the government, DeJarnette “absconded from the
Northern District of California in March of 2008.”
28 UNITED STATES V. DEJARNETTE
The government argues that the Northern District of
California nevertheless remained an “involved jurisdiction”
for the purposes of subsection (c) because it was DeJarnette’s
“last known address and the jurisdiction where he was
required to initially register.” To the extent that the argument
relies on the applicability of the “initial registration”
requirement, it fails for the reasons discussed in Part III.
Quoting our decision in United States v. Begay, 622 F.3d
1187, 1187 (9th Cir. 2010), the government further argues
that unless sex offenders are required to update their
registrations upon leaving a jurisdiction, they will “slip
through the cracks” of SORNA’s requirements. Begay
involved two defendants who “initially registered as a sex
offenders with the State of Arizona pursuant to [SORNA] but
did not update their registration information when they
moved to a different Arizona address within the territory of
the Navajo Nation.” Id. at 1189. Both defendants were pre-
Act offenders who changed residences prior to August 1,
2008. See id. at 1192–93.
The government’s reliance on Begay is misplaced for two
reasons. First, although both Begay defendants were arrested
on tribal land, we determined that, “[a]t the time of their
arrest, Defendants . . . ‘resided’ in both the Navajo Nation
and the State of Arizona.” Id. at 1194. We held that
“Defendants had an obligation under SORNA [subsection (a)]
to ‘keep the registration current’ in Arizona.” Id. (quoting
§ 16913(a)). In other words, Arizona remained an “involved
jurisdiction” because the defendants in Begay “resided” there
both before and after the change of residence. Contrary to the
government’s portrayal, Begay did not hold that the
jurisdiction from which an offender departs is always a
“jurisdiction involved pursuant to subsection (a).”
§ 16913(c). Rather, Arizona was an “involved jurisdiction”
UNITED STATES V. DEJARNETTE 29
in Begay because the offenders continued to “reside” there for
the purposes of subsection (a).
Second, Begay did not squarely address the retroactivity
problem that we face today, and it was decided without the
benefit of Valverde and Reynolds, decisions that subsequently
clarified the retroactive applicability of SORNA. Thus,
Begay assumed that “SORNA’s registration requirements
applied immediately and retroactively to all sex offenders
regardless of when they were convicted.” Begay, 622 F.3d at
1191. In light of Valverde and Reynolds, we are no longer
free to assume that a pre-Act offender whose nonregistration
offense conduct predates August 1, 2008 is punishable under
SORNA. To the extent that Begay holds otherwise, it has
been abrogated by Reynolds.
Finally, we are not persuaded by the government’s
argument that other circuits treat the jurisdiction from which
an offender departs as a “jurisdiction involved” under
SORNA. The out-of-circuit cases the government cites either
assume that SORNA took retroactive effect immediately
upon enactment – an assumption that can no longer stand in
the face of Reynolds,20 and that contravenes the law of this
circuit as declared in Valverde – or are otherwise inapposite.
See United States v. Murphy, 664 F.3d 798, 799–800 (10th
20
Reynolds abrogated decisions of the Second, Eighth, and Tenth
Circuits (and others), which held that SORNA’s registration requirements
apply to pre-Act offenders “from the date of the Act’s enactment, and
prior to any . . . specification [by the Attorney General], at least with
respect to pre-Act offenders who had already registered under state law.”
Reynolds, 132 S. Ct. at 980 (citing United States v. Fuller, 627 F.3d 499,
506 (2d Cir. 2010), United States v. Hinckley, 550 F.3d 926, 932 (10th
Cir. 2008), and United States v. May, 535 F.3d 912, 918–19 (8th Cir.
2008)).
30 UNITED STATES V. DEJARNETTE
Cir. 2011) (affirming the SORNA conviction of a pre-Act
offender for nonregistration offense conduct occurring prior
to August 1, 2008); United States v. Van Buren, 599 F.3d
170, 175 (2d Cir. 2010) (same)); United States v. Voice,
622 F.3d 870, 874–75 (8th Cir. 2010) (inapposite because
defendant’s nonregistration offense conduct occurred after
August 1, 2008).
V.
As the foregoing discussion indicates, not only were the
instructions prejudicially erroneous, but the evidence was
clearly insufficient to sustain a conviction under a correct
reading of the law. Because the evidence was insufficient,
“‘the Double Jeopardy Clause forbids a second trial.’”
Douglas v. Jacquez, 626 F.3d 501, 505 (9th Cir. 2010)
(quoting Burks v. United States, 437 U.S. 1, 11 (1978)).
VI.
For the foregoing reasons, the judgment of conviction is
REVERSED and the case REMANDED to the district court
with instructions to enter a judgment of acquittal.21
21
Because of our disposition, we need not and do not reach DeJarnette’s
venue challenge.
UNITED STATES V. DEJARNETTE 31
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
The Sex Offender Registration and Notification Act
(“SORNA”), Pub. L. No. 109-248, 120 Stat. 587 (2006)
(codified at 42 U.S.C. §§ 16901–16962), authorizes the
Attorney General to specify the applicability of SORNA’s
registration requirements to pre-SORNA offenders. The
Attorney General promulgated regulations stipulating that
SORNA’s registration requirements apply to all sex
offenders, including pre-SORNA offenders, and providing
guidelines for initial registration of retroactive classes of
offenders. Those regulations were in effect during the period
for which Defendant Alexander DeJarnette, Jr., was charged
with failing to register. As a sex offender covered by
SORNA, Defendant had to comply with all its registration
requirements, including the requirement that he register
initially in the jurisdiction of his conviction. I therefore
would hold that the jury was properly instructed, and I would
affirm the conviction.
Title 42 U.S.C. § 16913 sets out the registration
requirements for sex offenders under SORNA in four
subsections. Under subsection (a), each sex offender must
register in every jurisdiction where the offender resides,
works, or is a student. “For initial registration purposes only,
a sex offender shall also register in the jurisdiction in which
convicted” if it differs from the offender’s place of residence.
Subsection (b) sets out timing requirements for the initial
registration: the offender “shall initially register” before
completing the term of imprisonment, or no later than three
business days after sentencing, if not sentenced to a term of
32 UNITED STATES V. DEJARNETTE
imprisonment. Subsection (c) then lists requirements for
“[k]eeping the registration current.”
Certainly, a pre-SORNA offender—that is, someone who
was convicted before the enactment of SORNA—cannot
comply with the timing requirements of subsection (b).
Therefore, subsection (d), titled “Initial registration of sex
offenders unable to comply with subsection (b),” states:
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) of
this section.
Subsection (d) delegates to the Attorney General two
responsibilities. Its first clause gives the Attorney General
the authority to specify the applicability of all the
requirements of the subchapter to pre-SORNA offenders.
This clause makes no distinction between the initial
registration requirement and the requirement to keep the
registration current, both of which are requirements outlined
in subsection (a). Subsection (d)’s second clause gives the
Attorney General the authority to prescribe rules of
registration for offenders who cannot comply with the timing
requirements described in subsection (b), whether because
they were pre-enactment offenders or for any other reason.
UNITED STATES V. DEJARNETTE 33
The Supreme Court has noted the importance that
Congress placed on uniformity among jurisdictions and on
universal coverage of the new federal law. Reynolds v.
United States, 132 S. Ct. 975, 978 (2012).1 In particular,
“[t]he Act’s history . . . reveals that many of its supporters
placed considerable importance upon the registration of pre-
Act offenders.” Id. at 982. As the Supreme Court explained,
Congress delegated procedures for registration of pre-
SORNA offenders to the Attorney General in order to
facilitate the transition to the new system and to smooth out
the “practical problems arising when the Act sought to apply
the new registration requirements to pre-Act offenders.” Id.
at 981.
SORNA’s registration requirements do not apply to pre-
SORNA offenders “until the Attorney General so specifies.”
Id. at 984. But once the Attorney General sets the registration
requirements for pre-SORNA offenders, those offenders have
the same registration requirements as all other offenders,
except to the extent that the Attorney General “prescribe[s]
rules for the registration” of sex offenders who are unable to
comply with the initial registration timing requirements of
subsection (b). 42 U.S.C. § 16913(d). We have held that the
Attorney General completed the steps necessary to make
SORNA retroactive effective as of August 1, 2008. United
States v. Elk Shoulder, No. 10-30072, 2013 WL 5303242, at
*2 (9th Cir. Sept. 23, 2013); United States v. Valverde,
628 F.3d 1159, 1162 (9th Cir. 2010).
1
We also recently recognized that “SORNA is designed to improve the
uniformity and effectiveness of sex-offender registration systems.” United
States v. Elk Shoulder, No. 10-30072, 2013 WL 5303242, at *2 (9th Cir.
Sept. 23, 2013).
34 UNITED STATES V. DEJARNETTE
The Attorney General specified SORNA’s applicability
to pre-SORNA offenders in 73 Fed. Reg. 38,030–1,
38,062–63 (July 2, 2008), which expressly states that pre-
SORNA offenders must comply with the initial registration
requirement. Under the heading “IX. Initial Registration,”
the subsection “Retroactive Classes” begins: “SORNA
applies to all sex offenders, including those convicted of their
registration offenses prior to the enactment of SORNA.” Id.
at 38,063 (emphases added). The “Initial Registration”
portion of the regulations then details various procedures and
timelines for the initial registration of pre-SORNA offenders.
The Attorney General thus clearly and validly specified the
applicability of the registration requirements, including the
initial registration requirement, to pre-SORNA offenders. As
we recently recognized, “SORNA’s registration requirement,
codified at 42 U.S.C.§ 16913, requires all state and federal
sex offenders to register.” Elk Shoulder, 2013 WL 5303242,
at *2 (footnote and internal quotation marks omitted).
The majority writes: “We have searched in vain for any
indication that the Attorney General has applied the ‘initial
registration’ requirement of registration in the jurisdiction of
conviction, [42 U.S.C.] § 16913(a), to pre-Act offenders who
were already required to register under some pre-SORNA
scheme. But we are not surprised by the Attorney General’s
silence.” Maj. op. at 18. But the Attorney General was not
silent. Under the headings for “IX. Initial Registration” of
“Retroactive Classes,” the Attorney General specified that
“SORNA applies to all sex offenders.” 73 Fed. Reg. at
38,063 (emphasis added). There is no ambiguity. The plain
text of the regulations extends SORNA’s initial registration
requirement to all sex offenders, of which pre-SORNA
offenders with registration requirements under a previous law
are simply one subset.
UNITED STATES V. DEJARNETTE 35
In addition to starting with that affirmative statement of
universal application, the regulation covers in detail
Defendant’s situation. The majority relies heavily on
numbered examples, to which I will return shortly. But in the
paragraph immediately following those examples, the
regulations provide:
With respect to sex offenders with pre-
SORNA or pre-SORNA-implementation
convictions who remain in the prisoner,
supervision, or registered sex offender
populations at the time of implementation[,]
. . . jurisdictions should endeavor to register
them in conformity with SORNA as quickly
as possible . . . . [T]his may entail newly
registering or re-registering a large number of
sex offenders . . . .
73 Fed. Reg. at 38,063 (emphasis added). The regulations
then go on to outline a number of alternate timing options for
jurisdictions in which it is not feasible to register all prior
offenders immediately. These procedures are in place
precisely to ensure that there will be an initial SORNA
registration of all offenders, even though the initial
registration timing for some pre-SORNA offenders may
differ. This paragraph covers Defendant: He is a sex
offender who remains under the supervision of the Northern
District of California, which the regulations instruct to
“endeavor to register [him] in conformity with SORNA as
quickly as possible.” Id. The Northern District sought to do
36 UNITED STATES V. DEJARNETTE
exactly that when it asked that he register under SORNA as
a condition of his supervised release.2
By focusing only on the numbered examples, the majority
misses the forest for the trees. Those three examples are
offered only as “illustrat[ions],” id., not as an exhaustive or
comprehensive list. The majority loses sight of the broader
purpose and structure of the section in which the examples
are situated. The fact that none of them is identical to
Defendant’s situation is neither dispositive nor even
particularly informative. The examples all deal with
offenders who complied with their previous post-conviction
2
The majority misses two key points about this paragraph. First, as
quoted in text, the initial registration regulations note that sex offenders
will be registered or re-registered. Because this discussion appears in the
regulations concerning initial registration only, the obvious message to be
derived is that the Attorney General has specified that some pre-SORNA
sex offenders would be re-registering when they completed their initial
SORNA registration. They would do so if, for example, they had
registered with a state system.
Second, the majority suggests that, because the Attorney General’s
initial registration regulations are directed to jurisdictions, they are
insufficient to put pre-SORNA sex offenders on notice. Maj. op. at 12
n.4. But the Attorney General’s specification that the initial registration
requirement applies means that, once a jurisdiction endeavors to register
a pre-SORNA sex offender, the offender has an obligation to comply with
the jurisdiction’s initial registration requirements. In this case, the
Northern District of California, the jurisdiction of conviction, where
Defendant was still under supervision, specifically asked that Defendant
register under SORNA.
UNITED STATES V. DEJARNETTE 37
registration requirements. Defendant did not, so it is
unsurprising that his situation is not listed.3
In particular, the majority focuses on Example 2, which
describes an offender who, like Defendant, had a pre-SORNA
conviction and release and was required to register under an
earlier law. Example 2 explains that such an offender must
be notified of his new in-person verification requirements
following implementation of SORNA. Maj. op. at 14–16.
The majority finds it “telling” that the in-person verification
requirement is the only new requirement mentioned and that
the example does not mention re-registration. Id. at 15. But
the Attorney General likely chose that wording because the
offender in Example 2 was already part of an earlier
registered sex offender population. His initial SORNA
registration—which still must occur—would therefore take
place when the jurisdiction took steps to implement SORNA,
including by bringing all already-registered sex offenders
into the SORNA system.
3
The majority “finds further support in the Department of Justice’s most
recent codification of rules regarding SORNA’s retroactive applicability.”
Maj. op. at 16 (citing 28 C.F.R. § 72.3 (2011)). Those rules did not
govern Defendant’s responsibilities during the relevant period. Moreover,
I disagree with the majority’s reading of the new rules. Again, the
majority relies on examples that are intended to be illustrative, not limiting
or exhaustive. The text immediately preceding the examples states
simply: “The requirements of the Sex Offender Registration and
Notification Act apply to all sex offenders, including sex offenders
convicted of the offense for which registration is required prior to the
enactment of that Act.” 28 C.F.R. § 72.3. There is no limiting text to
suggest that some offenders have fewer registration requirements. The
Attorney General again has specified that all offenders, including pre-
SORNA offenders, are required to comply fully with its provisions.
38 UNITED STATES V. DEJARNETTE
The majority argues that reading an offender’s initial
SORNA registration requirement as “initial” after the
offender has already been required to register under a
previous law requires “contorting the English language.”
Maj. op. at 19–20. But the “initial registration requirement”
at issue is simply the initial registration requirement under
SORNA. Every offender, whether convicted pre- or post-
SORNA, has an initial registration requirement—it is simply
the first time that he or she registers in the uniform federal
system following enactment of the new law. This
understanding comports with the Attorney General’s
recognition that complying with the initial SORNA
registration requirement will involve “registering or re-
registering” many people already in the sex offender
population. 73 Fed. Reg. at 38,063 (emphasis added).
Furthermore, the next section of the regulations is
entitled, “X. Keeping the Registration Current.” 73 Fed.
Reg. at 38,065 (emphasis added). “[T]he registration” here
refers to the SORNA registration, which the majority does not
dispute applies to all sex offenders. In order to have a
SORNA registration to keep current, every offender must first
have a SORNA registration, and the “initial registration
requirement” refers to that first SORNA registration.
My reading is consistent not only with the regulations, but
also with the plain text of the statute and with its purpose.
Congress intended to create a uniform system that registers
all sex offenders, including those who may have fallen
through the cracks under previous registration programs.
Reynolds, 132 S. Ct. at 979, 982; Elk Shoulder, 2013 WL
5303242, at *2. The majority’s reading would create two
categories of pre-SORNA offenders. Those with no prior
registration requirement would be brought into SORNA
UNITED STATES V. DEJARNETTE 39
under the initial-registration mandate. Those with prior
registration requirements would have to update their
registration if they ever changed their residence or place of
employment or study. But if they were already registered
under an old system, or should have registered but failed to,
they would not have to register under SORNA in the
jurisdiction where convicted (if that location differs from the
place of residence, employment, or study) and easily could
fall through the cracks. This is precisely the sort of loophole
that SORNA was designed to address, and the Attorney
General’s regulations provide straightforward guidelines for
moving toward a universal registration system, beginning
with the initial SORNA registration of all offenders.
In sum, the Attorney General’s regulations validly specify
that SORNA’s registration requirements apply to all sex
offenders, including pre-SORNA offenders. Defendant, who
was convicted in the Northern District of California, was
notified of his initial SORNA registration requirement in that
jurisdiction. He nevertheless refused to register. He was
required to complete an initial registration in the jurisdiction
of conviction, and the jury was properly instructed. I would
affirm.