United States v. Newton

UNITED STATES, Appellee
v.
William E. NEWTON Jr., Specialist
U.S. Army, Appellant
No. 14-0415
Crim. App. No. 20110499
United States Court of Appeals for the Armed Forces
Argued November 19, 2014
Decided February 25, 2015
RYAN, J., delivered the opinion of the Court, in which BAKER,
C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.
Counsel
For Appellant: William E. Cassara, Esq. (argued); Captain
Patrick J. Scudieri (on brief); Captain James S. Trieschmann Jr.
For Appellee: Captain Daniel M. Goldberg (argued); Colonel John
P. Carrell and Lieutenant Colonel James L. Varley (on brief).
Military Judges: Jacqueline L. Emanuel and David H. Robertson
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Newton Jr., No. 14-0415/AR
Judge RYAN delivered the opinion of the Court.
Contrary to his pleas, a general court-martial composed of
officer and enlisted members convicted Appellant of rape of a
child under the age of twelve, indecent acts, wrongfully sending
a lewd picture to a child under the age of eighteen, and
knowingly failing to register as a sex offender as required by
the Sex Offender Registration and Notification Act (SORNA), 18
U.S.C. § 2250(a) (2006), in violation of Articles 120 and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 920, 934
(2006). The timeframe during which the SORNA violation was
alleged to have occurred was between October 1, 2009, and July
29, 2010.
The Court of Criminal Appeals (CCA) modified some
specifications not relevant to this appeal, and then affirmed
the remaining findings and sentence as modified.
We granted review of the following issue:
WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT
(SORNA), 18 U.S.C. § 2250(a) (2006), APPLIED TO APPELLANT
AS A RESULT OF EITHER THE ATTORNEY GENERAL’S 2007 INTERIM
RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v.
LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v.
REYNOLDS, 710 F.3d 498 (3d Cir. 2013).
The 2008 Sentencing, Monitoring, Apprehending, Registering,
and Tracking (SMART) Guidelines provide, as is relevant to the
instant case, that an individual convicted of any of the
statutorily defined sex offenses before the date that SORNA took
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effect is required to register as a sex offender under SORNA.
The National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38,030, 38,046 (July 2, 2008)
[hereinafter 2008 SMART Guidelines]. This retroactive
application provision is a substantive rule that was promulgated
pursuant to the Attorney General’s statutory authority to make
SORNA’s registration requirement apply to pre-act offenders. 42
U.S.C. § 16913(d) (2012). Further, this rule was promulgated
according to proper notice and comment procedures as required by
§ 553 of the Administrative Procedure Act (APA), 5 U.S.C. § 553
(2012). Accordingly, Appellant had a duty to register as a sex
offender under SORNA, and we need not address the question
whether the Attorney General had good cause to forego the notice
and comment procedures when promulgating the 2007 Interim Rule.1
Applicability of the Sex Offender Registration and Notification
Act, 72 Fed. Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R.
1
There is a split among the federal circuits on the question
whether the Attorney General had “good cause” to forego the
required notice and comment procedures for the 2007 Interim Rule
under 5 U.S.C. § 553(b)(3)(B). Compare United States v. Brewer,
766 F.3d 884, 887-90 (8th Cir. 2014), United States v. Reynolds,
710 F.3d 498, 509 (3d Cir. 2013), United States v. Johnson, 632
F.3d 912, 928 (5th Cir. 2011), United States v. Valverde, 628
F.3d 1159, 1165-66 (9th Cir. 2010), and United States v. Cain,
583 F.3d 408, 422-24 (6th Cir. 2009), with United States v.
Dean, 604 F.3d 1275, 1281-82 (11th Cir. 2010), and United States
v. Gould, 568 F.3d 459, 469-70 (4th Cir. 2009). Because we hold
that the 2008 SMART Guidelines created an enforceable
substantive rule requiring Appellant to register under SORNA, we
merely note -- and need not join -- the circuit split on the
2007 Interim Rule. See Lott, 750 F.3d at 217.
3
United States v. Newton Jr., No. 14-0415/AR
pt. 72) [hereinafter 2007 Interim Rule]; see United States v.
Lott, 750 F.3d 214, 217 (2d Cir. 2014); United States v.
Whitlow, 714 F.3d 41, 45 (1st Cir. 2013).
I. FACTUAL BACKGROUND
On October 2, 1995, Appellant pleaded guilty in Missouri
Circuit Court to a charge of statutory rape of a fourteen-year-
old girl. He received two years’ probation. On October 2,
1995, and November 6, 1995, Appellant signed forms issued by the
Missouri Department of Public Safety that confirmed his
obligation to register in Missouri as a sex offender and to
inform the chief law enforcement official of the county with
jurisdiction over his new residence or address if he moved.
Appellant began active duty in the Army on April 23, 1998. On
October 1, 2009, the Army sent to Appellant, then stationed at
Fort Jackson, South Carolina, permanent change of station orders
to report to Fort Bliss, Texas, on November 10, 2009. He did
not register as a sex offender upon his arrival in Texas in
early November 2009; Appellant registered nine months later, on
July 29, 2010, after he was contacted by the local police
regarding his failure to register.
II. THE ATTORNEY GENERAL’S IMPLEMENTATION OF SORNA
On July 27, 2006, SORNA became effective. Pub. L. No. 109-
248, 120 Stat. 587 (2006) (codified at 18 U.S.C. § 2250 and 42
U.S.C. §§ 16911-29). On February 28, 2007, the Attorney General
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published the 2007 Interim Rule. 2007 Interim Rule, 72 Fed.
Reg. at 8894. Citing 42 U.S.C. § 16913(d), the Attorney General
declared, “SORNA applies to all sex offenders (as the Act
defines that term) regardless of when they were convicted.”
2007 Interim Rule, 72 Fed. Reg. at 8896. The Attorney General
explained that the 2007 Interim Rule “serves the narrower,
immediately necessary purpose of foreclosing any dispute as to
whether SORNA is applicable where the conviction for the
predicate sex offense occurred prior to the enactment of SORNA.”
Id. The Attorney General invoked the “good cause” exception to
forego the notice and comment procedures required by
§ 553(b)(3)(B) of the APA and declared that the 2007 Interim
Rule was effective immediately. 2007 Interim Rule, 72 Fed. Reg.
at 8896. The Attorney General noted, however, that he would
“hereafter issue general guidelines to provide guidance and
assistance to the states and other covered jurisdictions in
implementing SORNA, as was done under the Wetterling Act, see 64
[Fed. Reg.] 572 (Jan. 5, 1999), and may also issue additional
regulations as warranted.” Id.
A few months later, on May 30, 2007, the Attorney General
published the notice of proposed rulemaking for what became the
2008 SMART Guidelines in the Federal Register; he took comments
on the proposed guidelines until August 1, 2007. The National
Guidelines for Sex Offender Registration and Notification, 72
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United States v. Newton Jr., No. 14-0415/AR
Fed. Reg. 30,210-34 (proposed May 30, 2007) [hereinafter
Proposed SMART Guidelines]. The notice of proposed rulemaking
cited 42 U.S.C. § 16913(d) as the basis of the Attorney
General’s power to make a rule specifying that SORNA’s
registration requirement applies retroactively. Id. at 30,212.
The Attorney General published the final 2008 SMART Guidelines
on July 2, 2008. 2008 SMART Guidelines, 73 Fed. Reg. 38,030.2
The 2008 SMART Guidelines cite the congressional directive in
SORNA, 42 U.S.C. § 16912(b), that the Attorney General issue
guidelines to “interpret and implement” SORNA as the authority
for his rulemaking. 2008 SMART Guidelines, 73 Fed. Reg. at
38,030. In responding to comments regarding the requirement
that pre-act offenders must register, the Attorney General
specifically described how the 2008 SMART Guidelines addressed
those concerns. Id. at 38,031. The Attorney General’s position
was that “SORNA’s requirements took effect when SORNA was
enacted on July 27, 2006, and they have applied since that time
to all sex offenders, including those whose convictions predate
SORNA’s enactment.” Id. (citing 2007 Interim Rule, 72 Fed. Reg.
at 8895-96).
2
The Attorney General published the Final Rule on December 29,
2010. Applicability of the Sex Offender Registration and
Notification Act, 75 Fed. Reg. 81,849 (Dec. 29, 2010) (codified
at 28 C.F.R. pt. 72) [hereinafter Final Rule]. The 2010 Final
Rule post-dates Appellant’s failure to register and therefore is
not applicable to this case.
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III. DISCUSSION
The Appellant challenges his conviction of knowingly
failing to register as a sex offender on the ground that, during
the charged timeframe, October 1, 2009, to July 29, 2010, no
validly promulgated rule made SORNA’s registration requirement
applicable to those whose sex offense convictions predate
SORNA’s effective date. Appellant contends that the retroactive
application provision of the 2008 SMART Guidelines is merely
interpretative, does not have the force of law, and thus does
not make SORNA applicable to pre-act offenders. We disagree.
A. SUBSTANTIVE AND INTERPRETATIVE RULES UNDER THE APA
This case, which requires traversing the field of
administrative law, is one of first impression for this Court,
but an area well covered by other federal appellate courts. The
APA distinguishes between two kinds of rules: substantive rules
and interpretative rules. 5 U.S.C. § 553(b)-(d). A rule is
substantive, and has the force of law, “only if Congress has
delegated legislative power to the agency and if the agency
intended to exercise that power in promulgating the rule.”
American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d
1106, 1109 (D.C. Cir. 1993) (finding the 1947 Attorney General’s
Manual on the Administrative Procedure Act persuasive for
defining a substantive rule). A substantive rule “modifies or
adds to a legal norm based on the agency’s own authority. That
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authority flows from a congressional delegation to promulgate
substantive rules, to engage in supplementary lawmaking.”
Snycor Int’l. Corp. v. Shalala, 127 F.3d 90, 95 (D.C. Cir.
1997).
An interpretative rule, by contrast, “reflects an agency’s
construction of a statute that has been entrusted to the agency
to administer. The legal norm is one that Congress has devised;
the agency does not purport to modify that norm.” Id. at 94.
An agency’s interpretative rule is afforded some deference,
United States v. Mead Corp., 533 U.S. 218, 233, 234-35 (2001),
but “do[es] not have the force and effect of law” and is merely
used by “an agency to advise the public of the agency’s
construction of the statutes and rules which it administers.”
Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 99 (1995)
(quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31
(1979)); 5 U.S.C. § 553(d).
When faced with the task of distinguishing between a
substantive and an interpretative rule, most federal courts of
appeals use some variation of the legal effects test. See
American Mining Cong., 995 F.2d at 1112 (holding that the line
between substantive and interpretative rules is drawn based on
whether the rule has “legal effect”); accord Lott, 750 F.3d at
217 (“Substantive rules ‘implement the statute.’” (quoting
Chrysler Corp., 441 U.S. at 302-03)); Iowa League of Cities v.
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United States v. Newton Jr., No. 14-0415/AR
EPA, 711 F.3d 844, 872-73 (8th Cir. 2013); Warshauer v. Solis,
577 F.3d 1330, 1337 (11th Cir. 2009); Dia Nav. Co., Ltd. v.
Pomeroy, 34 F.3d 1255, 1264-65 (3d Cir. 1994); Metro. Sch. Dist.
v. Davila, 969 F.2d 485, 489-90 (7th Cir. 1992). The critical
question under the legal effects test is whether the rule
imposes a duty on affected parties. Cf. Chrysler Corp., 441
U.S. at 301-02 n.31 (noting that although there is no definition
for a substantive rule in the APA, a substantive rule is one
“‘affecting individual rights and obligations’” (quoting Morton
v. Ruiz, 415 U.S. 199 (1974))). If it does, the rule is
substantive. Snycor, 127 F.3d at 95; Erringer, 371 F.3d at 630;
see also Gen. Elec. Co. v. EPA, 290 F.3d 377, 382 (D.C. Cir.
2002). This inquiry looks primarily at the language of the
statute to determine the substance of the congressional
enactment and the scope of the agency’s delegated authority,
then compares this to the language of the rule. See, e.g.,
Snycor, 127 F.3d at 95.
B. APPLICATION OF THE LEGAL EFFECTS TEST TO THE 2008 SMART
GUIDELINES
This Court reviews de novo the question whether an agency’s
rule is substantive or interpretative as a matter of law. See
Erringer, 371 F.3d at 629. The retroactive application
provision of the 2008 SMART Guidelines, which is the only aspect
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of the 2008 SMART Guidelines we consider here, constitutes a
substantive rule.
The relevant provisions of SORNA are 42 U.S.C. § 16912(b)
and § 16913(d). In § 16912(b), Congress granted the Attorney
General general rulemaking authority: “The Attorney General
shall issue guidelines and regulations to interpret and
implement [SORNA].” Section 16913(d) deals specifically with
retroactive application of SORNA’s requirements and provides
that “[t]he Attorney General shall have the authority to specify
the applicability of the requirements of [SORNA] to sex
offenders convicted before the enactment of this Act or its
implementation in a particular jurisdiction.” This is a clear
delegation of congressional power to the Attorney General to
promulgate rules in this area and, even without more, this
appears sufficient to establish that the retroactive application
provision of the 2008 SMART Guidelines is a substantive rule
with legislative force. Accord Whitlow, 714 F.3d at 46 (“[W]e
cannot ignore that § 16912(b) instructs the Attorney General to
implement the subchapter, and the subchapter includes the
specific option of making a rule on retroactivity.” (quoting
United States v. Stevenson, 676 F.3d 557, 564 (6th Cir. 2012))
(internal quotation marks omitted)); see also Lott, 750 F.3d
at 217.
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But there is more. In 2012, the Supreme Court resolved a
circuit split over the question whether SORNA’s registration
requirement took effect for pre-act offenders when SORNA was
enacted or only after the Attorney General implemented a rule to
that effect. United States v. Reynolds, 132 S. Ct. 975, 980-81
(2012). Interpreting 42 U.S.C. § 16913(d), the Supreme Court
held that “the Act’s registration requirements do not apply to
pre-Act offenders until the Attorney General so specifies.”
Reynolds, 132 S. Ct. at 984 (emphasis added).
The Supreme Court’s reading of § 16912(b) and § 16913(d) in
Reynolds compels the conclusion both that Congress delegated the
authority to promulgate a substantive rule to make SORNA apply
to pre-act offenders to the Attorney General, and that
§ 16913(d) contains a legislative gap that Congress desired the
Attorney General to fill; until he put forth a rule, SORNA’s
requirements did not apply to pre-act offenders. See Reynolds,
132 S. Ct. at 981-82.
Moreover, the Attorney General did fill this gap, and
explicitly invoked Congress’s delegation of rulemaking authority
when he established the 2008 SMART Guidelines, putting affected
individuals on adequate notice as to the legislative authority
for the rulemaking. See American Mining Cong., 995 F.2d at
1112; Proposed SMART Guidelines, 72 Fed. Reg. at 30,210-34. The
notice of proposed rulemaking and the 2008 SMART Guidelines cite
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42 U.S.C. § 16912(b) as the authority for putting forth the
retroactive application rule announced in the 2008 SMART
Guidelines. Proposed SMART Guidelines, 72 Fed. Reg. at 30,210;
2008 SMART Guidelines, 73 Fed. Reg. at 38,035-36. The broad
delegation contained within 42 U.S.C. § 16912(b) subsumes within
it the Attorney General’s narrower power to specify that SORNA
applies to pre-act offenders contained in 42 U.S.C. § 16913(d).
See Lott, 750 F.3d at 217-18; Whitlow, 714 F.3d at 46;
Stevenson, 676 F.3d at 563-64. And the notice of proposed
rulemaking for the 2008 SMART Guidelines specifically references
the Attorney General’s power to make SORNA retroactive under
§ 16913(d). Proposed SMART Guidelines, 72 Fed. Reg. at 30,212;
cf. Reynolds, 132 S. Ct. at 981-82.3
3
Appellant argues that despite the plain statutory grant of
delegated authority, and irrespective of both the Supreme
Court’s holding in Reynolds and the Attorney General’s explicit
reference to the authority delegated to him by SORNA, we should
nonetheless hold that the retroactive application provision
within the 2008 SMART Guidelines is interpretative because the
Attorney General subjectively believed that the 2007 Interim
Rule made SORNA apply retroactively before the 2008 SMART
Guidelines were promulgated. The Attorney General’s subjective
belief is not controlling. See, e.g., General Motors Corp. v,
Ruckelshaus, 242 F.2d 1561, 1565 (D.C. Cir. 1984) (“[T]he
agency’s own label, while relevant, is not dispositive.”). The
question is whether the 2008 SMART Guidelines imposed a duty and
obligation in law and are, therefore, substantive. The 2008
SMART Guidelines impose a registration obligation that does not
exist under the statute, irrespective of whether the 2007
Interim Rule temporarily imposed the same duty, and regardless
of whether that Interim Rule properly invoked “good cause” to
forego the required notice and comment procedures under 5 U.S.C.
§ 553(b)(3)(B). See United States v. Bridges, 741 F.3d 464, 468
12
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We hold that the 2008 SMART Guidelines’ retroactive
application provision is a substantive rule. In so holding we
are in good company. All of the federal courts of appeals that
have considered this provision of the 2008 SMART Guidelines have
treated it as substantive, not interpretative. Bridges, 741
F.3d at 468; Lott, 750 F.3d at 217; Whitlow, 714 F.3d at 46-48;
Stevenson, 676 F.3d at 563-65; United States v. Utesch, 596 F.3d
302, 310 (6th Cir. 2010).
C. ADMINISTRATIVE PROCEDURE ACT REQUIREMENTS
For a substantive rule to have the force and effect of law,
an agency must also adhere to the procedural requirements set
out in § 553 of the APA. Here, the Attorney General published
the proposed 2008 SMART Guidelines in the Federal Register on
May 30, 2007, and took comments on the proposed guidelines until
August 1, 2007. 5 U.S.C. § 553(b)-(c); Proposed SMART
Guidelines, 72 Fed. Reg. at 30,210. The proposed guidelines
contained an entire draft of the proposed rule on retroactivity.
5 U.S.C. § 553(b)(3); Proposed SMART Guidelines, 72 Fed. Reg. at
30,212-13. The affected parties were put on fair notice as to
what the rule would contain and were given an opportunity to
present their views to the agency for consideration. See
(4th Cir. 2014); Lott, 750 F.3d at 217; Whitlow, 714 F.3d at 45;
Stevenson, 676 F.3d at 563-65 (applying the 2008 SMART
Guidelines as the substantive rule governing failures to
register taking place after the guidelines were promulgated).
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Whitlow, 714 F.3d at 47. Further, in the notice of proposed
rulemaking, the Attorney General explicitly cited § 16912(b) and
§ 16913(d) as the congressionally delegated legislative
authority for putting forth the 2008 SMART Guidelines and the
retroactive application rule. 5 U.S.C. § 553(b)(2); Proposed
SMART Guidelines, 72 Fed. Reg. at 30,210, 30,212 (citing 42
U.S.C. § 16913(d) as “SORNA section 113(d)”). On July 2, 2008,
the Attorney General published the final version of the 2008
SMART Guidelines in the Federal Register. 5 U.S.C. § 553(d);
2008 SMART Guidelines, 73 Fed. Reg. at 38,030, 38,035-36. The
published final rule contains direct responses to the various
types of comments the Attorney General received regarding his
expressed intent to extend SORNA’s registration requirement to
pre-act offenders. 5 U.S.C. § 553(c); 2008 SMART Guidelines, 73
Fed. Reg. at 38,032.
The 2008 SMART Guidelines were promulgated according to the
requirements of the APA and without any procedural defect. See
Lott, 750 F.3d at 219; Whitlow, 714 F.3d at 45; United States v.
Mattix, 694 F.3d 1082, 1084 (9th Cir. 2012) (per curiam); United
States v. Trent, 654 F.3d 574, 581 (6th Cir. 2011).
IV. CONCLUSION
During the charged conduct in this case, the 2008 SMART
Guidelines were in effect and Appellant was retroactively
subject to SORNA’s registration requirement under 18 U.S.C.
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§ 2250(a) (2006). The decision of the United States Army Court
of Criminal Appeals is affirmed.
15