United States v. Morgan , 255 F. Supp. 3d 221 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
UNITED STATES OF AMERICA, )
)
v. ) Crim. No. 16-0196 (ESH)
)
CHARLES MORGAN, )
)
Defendant. )
_________________________________________ )
MEMORANDUM OPINION
A nine-count indictment charges defendant Morgan with failure to register as a sex
offender, in violation of 18 U.S.C. § 2250(a) (Count One); kidnapping, in violation of 18 U.S.C.
§ 1201(a)(1), (g) (Count Two); transportation of a minor with intent to engage in criminal sexual
activity, in violation of 18 U.S.C. § 2423(a) (Count Five); attempted production of child
pornography, in violation of 18 U.S.C. § 2251(a), (e) (Count Eight); three counts of commission
of a felony offense by an individual required to register as a sex offender, in violation of 18
U.S.C. § 2260A (Counts Three, Six, and Nine); and two counts of commission of a crime of
violence while failing to register as a sex offender, in violation of § 2250(d) (Counts Four and
Seven). (Indictment, ECF No. 15.)1 Defendant has moved to dismiss all of the registration-
related counts (Counts One, Three, Four, Six, Seven, and Nine) based on the Administrative
Procedure Act, the non-delegation doctrine, the Ex Post Facto Clause, and the Commerce
Clause. (Def.’s Mot., ECF No. 22.) For the reasons described herein, the Court will deny
defendant’s motion.
1
The indictment cites § 2250(c) for commission of a crime of violence while failing to register
as a sex offender. Congress re-designated that section as § 2250(d) as of Feb. 8, 2016.
BACKGROUND
According to the government, defendant was convicted of Rape while Armed in 1991 in
the Superior Court for the District of Columbia. (Gov.’s Opp. at 1, ECF No. 29.) He was
released from incarceration in 2009. (Id.) In the interim, in 2006, Congress passed the Sex
Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. SORNA
requires sex offenders 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.§ 16913(a). It is a criminal offense for someone who is subject to the Act’s registration
requirements to travel in interstate commerce and then fail to update his registration as required.
See 18 U.S.C. § 2250(a).
When Congress passed SORNA, it directed that “[t]he Attorney General shall have the
authority to specify the applicability of [SORNA] to sex offenders convicted before [its]
enactment.” 42 U.S.C. § 16913(d). Thus, “the Act’s registration requirements do not apply to
pre-Act offenders until the Attorney General so specifies.” Reynolds v. United States, 565 U.S.
432, 445 (2012). On three different occasions, the Attorney General issued rules or guidelines
stating that SORNA applies to pre-Act offenders. See United States v. Ross, 848 F.3d 1129,
1131-32 (D.C. Cir. 2017). These are a 2007 Interim Rule, 2008 Final Guidelines, and a 2010
Final Rule. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed.
Reg. 8894, 8897 (Feb. 28, 2007) (“Interim Rule”); The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38030, 38035-36 (July 2, 2008) (“Final Guidelines”);
Applicability of the Sex Offender Registration and Notification Act, 75 Fed. Reg. 81849, 81850
(Dec. 29, 2010) (codified at 28 C.F.R. pt. 72) (“Final Rule”).
2
The indictment charges defendant with failure to register, crimes of violence while failing
to register, and felonies while required to register, all based on his alleged conduct between 2015
and 2016. (Indictment at 1-5.) According to the indictment, defendant was subject to
registration requirements as a result of his 1991 conviction for Rape while Armed. (Id. at 2.)
Defendant has moved to dismiss all counts that have a registration requirement as an element.
(Def.’s Mot. at 1.) First, he argues that the Attorney General’s attempts to specify the
application of SORNA to pre-Act offenders violated the Administrative Procedure Act. (Id. at 4-
7.) Second, he contends that Congress violated the non-delegation doctrine when it gave the
Attorney General the authority to make SORNA retroactive. (Id. at 7-9.) Third, he maintains
that the Ex Post Facto Clause prohibits applying SORNA’s registration requirements and
criminal penalties to offenders who committed their sex offenses before the enactment of
SORNA. (Id. at 9-17.) Finally, he claims that criminalizing failure to register exceeded
Congress’s powers under the Commerce Clause. (Id. at 17-19.)
ANALYSIS
I. ADMINISTRATIVE PROCEDURE ACT
Relying on the D.C. Circuit’s recent opinion in Ross, 848 F.3d 1129, defendant asserts
that none of the Attorney General’s attempts to apply SORNA to pre-Act offenders complied
with the Administrative Procedure Act (APA). (Def.’s Mot. at 4-7.) This Court disagrees. Ross
invalidated only the 2007 Interim Rule and the 2008 Final Guidelines. The reasoning in Ross
does not extend to the 2010 Final Rule, which predated the conduct charged in this case.
In Ross, the D.C. Circuit held that the government could not prosecute a defendant with a
pre-SORNA sex offense conviction for his failure to register in 2009, because neither the 2007
Interim Rule nor the 2008 Final Guidelines had satisfied the requirements of the APA. 848 F.3d
3
at 1131-32. The adequacy of the 2010 Final Rule was not before the Court in Ross, because that
rule could not support a prosecution for failure to register in 2009. See id. Beginning with the
2007 Interim Rule, the Court concluded that it was inadequate because the Attorney General
“issued the rule without providing for advance notice or inviting comment, as required by the
APA.” Id. at 1132. Turning to the 2008 Final Guidelines, the Court held that it could not uphold
them as a discretionary decision by the Attorney General because he “disclaimed any authority to
decide for himself whether SORNA applied to pre-enactment offenders.” Id. at 1134. Rather,
the Attorney General stated that SORNA had “applied since [its enactment] to all sex offenders,
including those whose convictions predate SORNA’s enactment,” and he “could not” depart
from Congress’s legislative judgment that the requirements were justified. Id. (quoting Final
Guidelines, 73 Fed. Reg. at 38035, 38046).
Contrary to defendant’s argument, the reason for invalidating the 2008 Final Guidelines
does not apply to the 2010 Final Rule. In dicta, the Ross Court rejected the same argument that
defendant now makes, explaining that the Final Rule “did recognize [the Attorney General’s]
authority, albeit reluctantly and contingently: ‘Congress at the very least placed it within the
Attorney General’s discretion to apply SORNA’s requirements to [pre-SORNA offenders] if he
determines (as he has) that the public benefits of doing so outweigh any adverse effects.’ Final
Rule, 75 Fed. Reg. at 81850/3.” Ross, 848 F.3d at 1137. When the Attorney General issued the
Final Rule, he provided two alternative grounds for the regulation. He stated that the Final
Rule’s application of SORNA’s requirements to sex offenders with pre-SORNA convictions had
“a sound legal basis, regardless of whether (i) SORNA’s requirements apply of their own force
to sex offenders with pre-SORNA convictions, and the interim rule merely confirmed that fact,
or (ii) the applicability of SORNA’s requirements to sex offenders with pre-SORNA convictions
4
depends on rulemaking by the Attorney General.” Final Rule, 75 Fed. Reg. at 81850-51. To
support his judgment under the second scenario, he observed that “the interests opposing and
supporting registration—any adverse effect or burden of SORNA’s requirements on sex
offenders weighed against the public safety interests furthered by those requirements—are much
the same whether the class of sex offenders with pre-SORNA convictions or the class of sex
offenders with post-SORNA convictions is considered.” Id. He concluded that he was “justified
. . . in exercising his authority to ‘specify the applicability of the requirements of [SORNA] to
sex offenders convicted before the enactment’ of SORNA, 42 U.S.C. 16913(d) . . . .” Id. Thus,
the Attorney General was clear that if he had discretion to determine the applicability of
SORNA, he was exercising it to apply the requirements to pre-SORNA offenders. Because the
2010 Final Rule contains the Attorney General’s discretionary judgment, it does not share the
flaw in the 2008 Final Guidelines that caused the Ross Court to find the latter invalid under the
APA.
II. NON-DELEGATION DOCTRINE
Next, defendant contends that Congress violated the non-delegation doctrine when it
directed that “[t]he Attorney General shall have the authority to specify the applicability of
[SORNA] to sex offenders convicted before [its] enactment,” 42 U.S.C. § 16913(d), but “failed
to articulate any policy to guide” that determination. (Def.’s Mot. at 8.) Applying the
established intelligible-principle test, this Court will follow the other circuits, which have
uniformly held that this delegation was permissible.
Although the D.C. Circuit has not decided the non-delegation question, every other
circuit has addressed it and has determined that it was constitutional for Congress to delegate the
authority to the Attorney General to decide whether SORNA should apply to pre-Act offenders.
5
Ross, 848 F.3d at 1131 (citing United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014),
rev’d on other grounds, 136 S.Ct. 1113 (2016); United States v. Richardson, 754 F.3d 1143,
1146 (9th Cir. 2014); United States v. Cooper, 750 F.3d 263, 271-72 (3d Cir. 2014); United
States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir. 2013); United States v. Kuehl, 706 F.3d 917,
920 (8th Cir. 2013); United States v. Sampsell, 541 Fed. App’x 258, 259-60 (4th Cir. 2013);
United States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606
(6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-93 (2d Cir. 2010); United States v.
Whaley, 577 F.3d 254, 262-64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212-14
(11th Cir. 2009)). In this district, Judge Bates has also rejected a defendant’s non-delegation
challenge. United States v. Cotton, 760 F. Supp. 2d 116, 135 (D.D.C. 2011).
This Court agrees that the SORNA delegation to the Attorney General satisfies the test
that the Supreme Court has set out to evaluate congressional delegations. “So long as Congress
‘shall lay down by legislative act an intelligible principle to which the person or body authorized
to [exercise the delegated authority] is directed to conform, such legislative action is not a
forbidden delegation of legislative power.’” Mistretta v. United States, 488 U.S. 361, 372 (1989)
(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme
Court “has deemed it ‘constitutionally sufficient if Congress clearly delineates the general
policy, the public agency which is to apply it, and the boundaries of this delegated authority.’”
Id. at 372-73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). In applying
this test, the Court has been “driven by a practical understanding that in our increasingly
complex society, replete with ever changing and more technical problems, Congress simply
cannot do its job absent an ability to delegate power under broad general directives.” Id. at 372.
6
Mindful of this principle, the Court has not struck down a statute under the non-delegation
doctrine since 1935. Cooper, 750 F.3d at 268-70.
The SORNA delegation easily satisfies the second and third prongs of the Supreme
Court’s three-part test. Congress specified that the Attorney General would have the delegated
authority, 42 U.S.C. § 16913(d), thus fulfilling the requirement that Congress delineate “the
public agency” to exercise the delegated authority, Mistretta, 488 U.S. at 372-73. See Cooper,
750 F.3d at 272; Goodwin, 717 F.3d at 517. Congress also set “the boundaries of this delegated
authority,” Mistretta, 488 U.S. at 372-73, by directing the Attorney General to decide only “the
specific question of whether SORNA’s registration requirements apply to pre-SORNA sex
offenders.” Cooper, 750 F.3d at 272. SORNA “contains detailed directives regarding virtually
every [other] aspect of the establishment of the national registry.” Goodwin, 717 F.3d at 517.
Applying the first prong of the test — that Congress has “clearly delineate[d] the general
policy” to guide the delegation, Mistretta, 488 U.S. at 372-73 — is more challenging. Section
16913, which contains the delegation, does not give the Attorney General any guiding principle
or factors to consider. Courts searching for an intelligible principle have turned to SORNA’s
preamble, which explains that “[i]n order to protect the public from sex offenders and offenders
against children, and in response to the vicious attacks by violent predators against the victims
listed below, Congress in this chapter establishes a comprehensive national system for the
registration of those offenders.” 42 U.S.C. § 16901; see Cooper, 750 F.3d at 271; Richardson,
754 F.3d at 1145-46; Goodwin, 717 F.3d at 516; Cotton, 760 F. Supp. 2d at 135. According to
the Seventh Circuit, “[t]his section provides sufficient guidance to the Attorney General for two
reasons: (i) § 16901 conveys to the Attorney General that the delegated authority should be
exercised with the goal of ‘protect[ing] the public’ from a specific class of criminals; and
7
(ii) § 16901 notifies the Attorney General that he or she should act in a manner that furthers
Congress’s objective of a ‘comprehensive’ registration system.” Goodwin, 717 F.3d at 516.
This Court agrees with the Third Circuit’s appraisal of § 16901: “Although we
acknowledge that SORNA’s policy statement is broad and does not contain directives
specifically aimed at the Attorney General, review of the history of the nondelegation doctrine
reveals that far less precise policy statements have still passed muster.” Cooper, 750 F.3d at
271-72 (citing Am. Power & Light, 329 U.S. at 105; Yakus v. United States, 321 U.S. 414, 420-
23 (1944)). In Yakus, the Court upheld a delegation to an executive official to set “fair and
equitable” commodity prices, with the purpose of stabilizing prices and with due consideration
for the prevailing prices during a certain time period. 321 U.S. at 419-27. Similarly, in
American Power & Light, the Court upheld a delegation to the SEC to take such actions as
necessary to prevent companies from “unfairly or inequitably distribut[ing] voting power among
security holders.” 329 U.S. at 104-05. The Court explained that “[t]hese standards are certainly
no less definite in nature than those speaking in other contexts in terms of ‘public interest,’ ‘just
and reasonable rates,’ ‘unfair methods of competition’ or ‘relevant factors.’ The approval which
this Court has given in the past to those standards thus compels the sanctioning of the ones in
issue.” Id. Because the Supreme Court has taken such a broad view of what constitutes an
intelligible principle, this Court has no basis for rejecting the delegation in SORNA.
Justice Scalia has pointed out that the SORNA delegation “seems to me sailing close to
the wind with regard to the principle that legislative powers are nondelegable.” Reynolds, 565
U.S. at 450 (Scalia, J., dissenting). Taking a step further, then-Judge Gorsuch argued in a
dissenting opinion that the SORNA delegation violates the non-delegation doctrine because “[i]f
the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define
8
the crimes he gets to enforce.” United States v. Nichols, 784 F.3d 666, 668 (2015) (Gorsuch, J.,
dissenting from denial of rehearing en banc). He would hold delegations in the criminal context
to a higher standard. Id. at 672-76. It is true that the Supreme Court once said it “need not
resolve” whether “greater congressional specificity is required in the criminal context.” Touby v.
United States, 500 U.S. 160, 165-66 (1991). But because the Supreme Court has invoked the
intelligible-principle test in both civil and criminal cases, see, e.g., Mistretta, 488 U.S. at 372-73,
and it has never held that a higher standard applies in the criminal context, this Court applies the
intelligible-principle test. See Cooper, 750 F.3d at 271 (“Until the Supreme Court gives us clear
guidance to the contrary, we assess the delegation of authority to the Attorney General in 42
U.S.C. § 16913(d) under an intelligible principle standard.”). Under that test, Congress did not
violate the non-delegation doctrine when it gave the Attorney General the authority to decide
whether SORNA’s registration requirements applied to pre-Act offenders.
III. EX POST FACTO CLAUSE
Because the registration-related counts against defendant charge crimes or sentencing
enhancements that did not exist until 2006, but that rely upon defendant’s sex offense conviction
from 1991, defendant argues that those counts violate the Ex Post Facto Clause. (Def.’s Mot. at
9-17.) The Ex Post Facto Clause, U.S. Const. art. I, § 9, cl. 3, bars “retroactive punishment.”
Smith v. Doe, 538 U.S. 84, 92 (2003). That is, it prohibits Congress from enacting any law that
“imposes a punishment for an act which was not punishable at the time it was committed; or
imposes additional punishment to that then prescribed.” Weaver v. Graham, 450 U.S. 24, 28
(1981) (quoting Cummings v. Missouri, 71 U.S. 277, 325-26 (1867)). None of the three
registration-related statutory provisions charged in the indictment is both punitive and
retroactive, so there is no ex post facto violation.
9
A. Failure to Register (18 U.S.C. § 2250(a))
In Count One, the government charges defendant with violating 18 U.S.C. § 2250(a).
Section 2250(a) imposes liability on a person who (1) “is required to register under the Sex
Offender Registration and Notification Act,” (2) “travels in interstate or foreign commerce,” and
(3) “knowingly fails to register or update a registration as required by the Sex Offender
Registration and Notification Act.” The interstate travel must post-date the enactment of
SORNA, and the failure to register must occur after the travel. Carr v. United States, 560 U.S.
438, 446 (2010). At defendant’s trial, the government intends to show that he moved from
Washington, D.C., to Maryland in April 2015 and resided there until his arrest in July 2016, but
he failed to register his new residence in either D.C. or Maryland. (Gov.’s Opp. at 1-2, 20.) A
conviction under § 2250(a) would not subject defendant to any mandatory minimum sentence,
but Congress has authorized a prison sentence of up to ten years.
There is a consensus among circuits that prosecution under § 2250(a) for failure to
register, when registration was required because of a pre-SORNA conviction, does not violate
the Ex Post Facto Clause. See, e.g., United States v. Parks, 698 F.3d 1, 4-6 (1st Cir. 2012);
United States v. Elkins, 683 F.3d 1039, 1043-45 (9th Cir. 2012); United States v. Felts, 674 F.3d
599, 605-06 (6th Cir. 2012); United States v. Leach, 639 F.3d 769, 772-73 (7th Cir. 2011);
United States v. May, 535 F.3d 912, 920 (8th Cir. 2008), abrogated on other grounds by
Reynolds, 565 U.S. 432. Judge Bates in this district has agreed. Cotton, 760 F. Supp. 2d at 119,
137-38. As the Seventh Circuit has pointed out, a complete ex post facto analysis for § 2250(a)
must consider (1) whether “the criminal penalties under 18 U.S.C. § 2250(a) are retroactive”
(because there is no question that they are punitive) and (2) whether “the registration
requirements under 42 U.S.C. § 16913 constitute punishment” (because there is no question that
10
they are retroactive, since they are based exclusively on commission of a prior sex offense).
Leach, 639 F.3d at 772. Applying Supreme Court and other circuits’ precedent on punishment
and retroactivity to address these two questions, this Court agrees with other courts’ rejection of
ex post facto challenges to § 2250(a).
First, the Court will address whether the registration requirement is punitive. The
foundation for this analysis is the Supreme Court’s decision in Smith, where it held that Alaska’s
sex offender registration requirement was not punitive and therefore did not violate the Ex Post
Facto Clause. 538 U.S. 84. Under the Alaska Sex Offender Registration Act, offenders
convicted of a single nonaggravated sex crime must register annually for 15 years, while those
with aggravated or multiple offenses must register quarterly and for life. Id. at 90. Offenders’
names, photographs, addresses, crimes, and other information are to be available to the public,
which Alaska has chosen to accomplish by publishing the information on the internet. Id. at 91.
To determine whether the Alaska statute had a punitive effect, the Supreme Court identified the
following relevant factors: “whether, in its necessary operation, the regulatory scheme: has been
regarded in our history and traditions as a punishment; imposes an affirmative disability or
restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive
purpose; or is excessive with respect to this purpose.” Id. at 97. The Court concluded that “[o]ur
system does not treat dissemination of truthful information in furtherance of a legitimate
governmental objective as punishment,” and the periodic reporting requirement (which did not
mandate in-person appearances) did not impose an affirmative disability. Id. at 98, 101. Most
significantly, the Court explained, the statute had the nonpunitive purpose of advancing public
safety and a rational connection to that nonpunitive purpose. Id. at 102-03.
11
Other courts have concluded that they are “unable to find any meaningful distinctions”
from the Alaska statute that would render SORNA’s registration requirement punitive. Leach,
639 F.3d at 773; see Parks, 698 F.3d at 6; Cotton, 760 F. Supp. 2d at 136-38. Defendant argues
that SORNA is punitive because it requires publication on the internet; directs states to notify
schools, public housing agencies, and any organization that requests notification; mandates in-
person reporting; and provides for a penalty of up to ten years for a first-time failure to report.
(Def.’s Mot. at 14-16.) Based on the Supreme Court’s reasoning in Smith, however, none of
these differences makes SORNA’s registration requirement punitive. Although Alaska’s statute
did not mandate publication on the internet, Alaska’s practice was to publish on the internet, and
the Smith Court held that internet publication was not punitive. Smith, 538 U.S. at 99. Smith did
not discuss notification of schools and other organizations, but it declared that “dissemination of
truthful information in furtherance of a legitimate governmental objective” is not punishment.
Id. at 98. In-person reporting is an inconvenience, but so is any registration requirement. Given
that occasional in-person reporting is not very burdensome and would reasonably be expected to
enhance the accuracy of reporting (which means it has a rational connection to a nonpunitive
purpose), it does not make SORNA’s registration requirement punitive. See Parks, 698 F.3d at
6; Cotton, 760 F. Supp. 2d at 137-38. Finally, the magnitude of the potential penalty for failure
to register does not affect whether the registration requirement itself is punitive. Therefore, this
Court joins the other courts that have concluded that SORNA’s registration requirement is not
punitive under the standards set out in Smith.2
2
In a supplemental notice, defendant directed the Court’s attention to Does v. Snyder, 834 F.3d
696 (6th Cir. 2016), which held that retroactive application of the Michigan Sex Offenders
Registration Act violated the Ex Post Facto Clause. The “[m]ost significant” burden imposed by
the Michigan statute was its “regulation of where registrants may live, work, and ‘loiter.’” Id. at
703. Because registrants could not live, work, or loiter within 1000 feet of a school, they had
12
Of course, there is no doubt that a prison sentence of up to ten years for failure to register
is punitive, and therefore, there could still be an ex post facto problem if the punishment for
failure to register is retroactive. However, other circuits have uniformly concluded that having a
pre-SORNA conviction does not make the punishment for failure to register retroactive. See,
e.g., Elkins, 683 F.3d at 1045; Felts, 674 F.3d at 605-06; Leach, 639 F.3d at 772-73; May, 535
F.3d at 920. “A sex offender violates the statute when, at any time after SORNA was enacted,
he travels in interstate commerce and then fails to register. Because the law targets only the
conduct undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post
Facto Clause.” Leach, 639 F.3d at 773 (citation omitted). “The statute does not punish an
individual for previously being convicted of a sex crime.” May, 535 F.3d at 920. “SORNA
provides for a conviction for failing to register; it does not increase the punishment for the past
conviction.” Felts, 674 F.3d at 606.
The reasoning that courts have used to conclude that punishment for failure to register is
not retroactive is the same reasoning that courts, including the D.C. Circuit, have employed in
the analogous situation of ex post facto challenges to felon-in-possession statutes. Felons whose
convictions predated the enactment of felon-in-possession crimes have argued that prosecuting
them for their possession violates the Ex Post Facto Clause. But the Seventh Circuit has
responded that “[s]ections 922(g)(1) and 922(g)(9) are not ex post facto laws. . . . A law is not
retroactive simply because it ‘draws upon antecedent facts for its operation.’” United States v.
Hemmings, 258 F.3d 587, 594 (7th Cir. 2001) (quoting Cox v. Hart, 260 U.S. 427, 435 (1922)).
trouble finding homes and jobs. Id. at 698. The Sixth Circuit concluded that these burdensome
geographic restrictions resembled the traditional punishment of banishment, constituted an
affirmative restraint, and were excessive in relation to the nonpunitive purpose. Id. at 701-05. In
contrast, SORNA does not restrict where registrants can live, work, or loiter, see 42 U.S.C.
§ 16901 et seq., and therefore, the reasoning in Snyder does not apply to SORNA.
13
Likewise, the Fourth Circuit has held that “[i]t is immaterial that [defendant]’s firearm purchase
and domestic violence conviction occurred prior to § 922(g)(9)’s enactment because the conduct
prohibited by § 922(g)(9) is the possession of a firearm.” United States v. Mitchell, 209 F.3d
319, 322 (4th Cir. 2000). Once possession of a firearm by a felon was criminalized, a defendant
had “adequate notice that it was illegal for him to possess a firearm because of his status as a
convicted felon.” United States v. Brady, 26 F.3d 282, 291 (2d Cir. 1994). In an unpublished
opinion, the D.C. Circuit agreed that prosecution under § 922(g)(9) when the prior conviction
predated that statute did not violate the Ex Post Facto Clause, because there was no showing
“either that the law applied to events occurring before its enactment, or that it increased
punishment for prior conduct.” United States v. Rivera, 24 Fed. App’x 2, 3 (D.C. Cir. 2001)
(citation omitted).
Because other circuits have held that § 2250(a) is not retroactive and the D.C. Circuit has
approved the equivalent logic in the felon-in-possession context, this Court also holds that
punishment for failure to register is not retroactive to the conviction that led to a defendant’s
registration requirement. Defendant’s reliance on United States v. Gillette, 553 F. Supp. 2d 524(D.V.I. 2008), is misplaced. Gillette’s interstate travel had taken place before SORNA’s
enactment, and the court concluded that prosecution under § 2250(a) would therefore violate the
Ex Post Facto Clause. Id. at 529. The court did not hold that having a pre-SORNA conviction
created an ex post facto problem. In fact, the court summarized its holding as follows: “To
succeed in a prosecution of 18 U.S.C. § 2250, the Government must show that the defendant
both traveled in interstate commerce and failed to register as required after [the enactment of
SORNA].” Id. at 533.
14
In sum, prosecuting defendant under § 2250(a) does not violate the Ex Post Facto Clause.
SORNA’s registration requirement is retroactive but not punitive, and its punishment for failure
to register is punitive but not retroactive.
B. Crime of Violence while Failing to Register (18 U.S.C. § 2250(d))
Under 18 U.S.C. § 2250(d), “[a]n individual described in subsection (a) . . . who commits
a crime of violence under Federal law . . . shall be imprisoned for not less than 5 years and not
more than 30 years.” That punishment “shall be in addition and consecutive to the punishment
provided for the violation described in subsection (a) . . . .” Id. In other words, an offender who
is found guilty of failing to register under § 2250(a) is also subject to a sentencing enhancement
of 5 to 30 years if he commits a crime of violence while failing to register. In the indictment, the
government charges two counts under § 2250(d) (Counts Four and Seven) to correspond with the
charges for kidnapping (Count Two) and transportation of a minor with intent to engage in
criminal sexual activity (Count Five). Thus, defendant could be subject to a sentence of 5 to 30
years that would run consecutive to any sentence for § 2250(a). Note that Congress has not
mandated that this sentence run consecutive to the sentences on the underlying crimes of
violence.
Applying § 2250(d) to defendant does not pose an ex post facto problem. Assuming a
defendant has been convicted under § 2250(a), the only requirement for the § 2250(d)
enhancement is that he also committed a crime of violence. That additional requirement is
unrelated to the prior conviction that requires him to register. Thus, § 2250(d) does not add any
ex post facto issue that is not already present in § 2250(a). Since prosecuting defendant under
§ 2250(a) does not violate the Ex Post Facto Clause, neither does charging him with
enhancements under § 2250(d).
15
C. Felony while Required to Register (18 U.S.C. § 2260A)
In Counts Three, Six, and Nine, the government charges defendant under 18 U.S.C.
§ 2260A for committing felonies while required to register as a sex offender. Section 2260A
provides that “[w]hoever, being required by Federal or other law to register as a sex offender,
commits a felony offense involving a minor under section 1201, 1466A, 1470, 1591, 2241, 2242,
2243, 2244, 2245, 2251, 2251A, 2260, 2421, 2422, 2423, or 2425, shall be sentenced to a term of
imprisonment of 10 years in addition to the imprisonment imposed for the offense under that
provision. The sentence imposed under this section shall be consecutive to any sentence
imposed for the offense under that provision.” The government’s three counts under § 2260A
correspond to its charges for kidnapping (Count Two, 18 U.S.C. § 1201(a)(1), (g)),
transportation of a minor with intent to engage in criminal sexual activity (Count Five, 18 U.S.C.
§ 2423(a)), and attempted production of child pornography (Count Eight, 18 U.S.C. § 2251(a),
(e)). (Indictment at 2-5.) Thus, if defendant is convicted of kidnapping, transportation, or
attempted production, the sentence for each of those crimes is subject to a mandatory
consecutive ten-year sentencing enhancement based on defendant’s status as someone who is
required to register. This enhancement applies to anyone who is “required by Federal or other
law to register as a sex offender,” 18 U.S.C. § 2260A, not just those who fail to register.
In United States v. Hardeman, 704 F.3d 1266, 1268-69 (9th Cir. 2013), the Ninth Circuit
held that application of § 2260A to defendants who committed their prior sex offenses before the
enactment of SORNA does not violate the Ex Post Facto Clause. “The Supreme Court has long
held that recidivism statutes do not violate the Ex Post Facto Clause because the enhanced
penalty punishes only the latest crime and is not retrospective additional punishment for the
original crimes.” Id. at 1268. The result is no different when Congress uses a shorthand method
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to refer to a category of prior crimes, as it did here, rather than specifying each prior crime that
will lead to the enhancement. Id. at 1269. Supreme Court precedent compels this Court to reach
the same result as the Ninth Circuit in Hardeman.
The constitutionality of applying a recidivist enhancement to pre-enactment offenders is
firmly established. In Gryger v. Burke, 334 U.S. 728 (1948), the Supreme Court held that such
recidivist enhancements do not violate the Ex Post Facto Clause. “The sentence as a fourth
offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty
for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an
aggravated offense because a repetitive one.” Id. at 732. Since Gryger, the Court has reiterated
that “[e]nhancement statutes, whether in the nature of criminal history provisions such as those
contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state
criminal laws, do not change the penalty imposed for the earlier conviction.” Nichols v. United
States, 511 U.S. 738, 747 (1994). “When a defendant is given a higher sentence under a
recidivism statute . . . 100% of the punishment is for the offense of conviction. None is for the
prior convictions or the defendant’s ‘status as a recidivist.’” United States v. Rodriquez, 553
U.S. 377, 386 (2008). Citing Gryger, courts of appeals have repeatedly upheld recidivist statutes
against ex post facto challenges. See, e.g., McCall v. Dretke, 390 F.3d 358, 364-66 (5th Cir.
2004); United States v. Forbes, 16 F.3d 1294, 1302 (1st Cir. 1994); United States v. Ahumada-
Avalos, 875 F.2d 681, 683-84 (9th Cir. 1989); Covington v. Sullivan, 823 F.2d 37, 38-40 (2d Cir.
1987).
There is no meaningful distinction between listing crimes that will subject a defendant to
the recidivist enhancement and using a shorthand to describe which crimes will have that effect.
When Congress enacted § 2260A, it described the enhancement as applicable to any offender
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who is “required by Federal or other law to register as a sex offender.” By using that
terminology, Congress chose not to create its own list of prior offenses that would lead to the
enhancement, but rather to adopt the lists of offenses contained in federal and state sex offender
registration statutes. As the Second Circuit has explained, “Gryger recognized the authority of a
state to enact an enhanced penalty for future conduct preceded by a criminal conviction obtained
prior to enactment of the enhanced penalty. . . . The technique by which [the state] achieves this
result has no constitutional significance.” Covington, 823 F.2d at 39.
Because § 2260A is equivalent to a recidivist statute and such statutes are not considered
retroactive when applied to offenders with pre-enactment convictions, enhancing defendant’s
sentence under § 2260A would not violate the Ex Post Facto Clause.
IV. COMMERCE CLAUSE
Defendant also challenges his prosecution for failure to register on the ground that 18
U.S.C. § 2250(a) exceeds Congress’s power under the Commerce Clause, U.S. Const. art. I, § 8,
cl. 3. (Def.’s Mot. at 17-19.) According to defendant, a “sex offender’s failure to register is an
intrastate offense that does not affect interstate commerce and, therefore, cannot be regulated by
Congress.” (Id. at 19.) Contrary to defendant’s argument, Congress has authority under the
Commerce Clause and the Necessary and Proper Clause to criminalize failure to register after
travel in interstate commerce.
Section 2250(a) provides for a conviction for failure to register when a person (1) “is
required to register under the Sex Offender Registration and Notification Act,” (2) “travels in
interstate or foreign commerce,” and (3) “knowingly fails to register or update a registration as
required by the Sex Offender Registration and Notification Act.” The three elements must be
read sequentially “to ensure a nexus between a defendant’s interstate travel and his failure to
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register as a sex offender.” Carr, 560 U.S. at 446. Congress intended “to subject to federal
prosecution sex offenders who elude SORNA’s registration requirements by traveling in
interstate commerce.” Id. at 456. According to the government, defendant moved from
Washington, D.C., to Maryland in April 2015 but never registered his new residence, which 42
U.S.C. § 16913 required him to do. (Gov.’s Opp. at 1-2, 20.)
The Supreme Court has identified “three broad categories of activity that Congress may
regulate under its commerce power.” United States v. Lopez, 514 U.S. 549, 558-59 (1995).
Those are “the use of the channels of interstate commerce,” “the instrumentalities of interstate
commerce, or persons or things in interstate commerce,” and “activities that substantially affect
interstate commerce.” Id.Section 2250(a) is a valid exercise of the commerce power because it regulates the
channels and instrumentalities of interstate commerce. United States v. Coleman, 675 F.3d 615,
620-21 (6th Cir. 2012); Guzman, 591 F.3d at 90; United States v. Vasquez, 611 F.3d 325, 330
(7th Cir. 2010); Ambert, 561 F.3d at 1210-11; United States v. Gould, 568 F.3d 459, 471-72 (4th
Cir. 2009); May, 535 F.3d at 921-22; Cotton, 760 F. Supp. 2d at 139-40. It “falls squarely within
the first two prongs of Lopez because it applies only to those failing to register or update a
registration after traveling in interstate commerce.” Cotton, 760 F. Supp. 2d at 139. “Interstate
travel inherently involves use of the channels of interstate commerce . . . . Moreover, Lopez
explicitly acknowledges Congress’s power to regulate persons traveling in interstate commerce”
under the instrumentalities prong. Guzman, 591 F.3d at 90.
Although § 2250(a) could still exceed Congress’s commerce power indirectly if the
underlying registration requirement were invalid, that registration requirement is justified by a
combination of the Commerce Clause and the Necessary and Proper Clause. United States v.
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Cabrera-Gutierrez, 756 F.3d 1125, 1131-32 (9th Cir. 2014); United States v. Pendleton, 636
F.3d 78, 86-88 (3d Cir. 2011); Guzman, 591 F.3d at 90-91; Ambert, 561 F.3d at 1211-12. Under
the Necessary and Proper Clause, Congress has the power “to make all laws which shall be
necessary and proper” to carry out its other powers. U.S. Const., art. 1, § 8, cl. 18. As the Court
has just explained, Congress has the power under the Commerce Clause to track sex offenders
who move between states. “Requiring sex offenders to update their registrations due to intrastate
changes of address or employment status is a perfectly logical way to help ensure that states will
more effectively be able to track sex offenders when they do cross state lines.” Guzman, 591
F.3d at 91. Thus, “[s]ection 16913 is reasonably adapted to the attainment of a legitimate end
under the commerce clause.” Ambert, 561 F.3d at 1212. In sum, the registration requirement in
42 U.S.C. § 16913 and the criminal offense in 18 U.S.C. § 2250 do not exceed Congress’s
commerce power.
CONCLUSION
For the reasons discussed above, the Court will deny defendant’s motion to dismiss
Counts One, Three, Four, Six, Seven, and Nine of the indictment. A separate Order
accompanies this Memorandum Opinion.
/s/ Ellen Segal Huvelle
ELLEN SEGAL HUVELLE
United States District Judge
Date: June 9, 2017
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