United States v. Whitlow

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