United States v. Cotton

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
Criminal Action No. 10-126 (JDB)
LARRY DONNELL COTTON
Defendant.
MEMORANDUM OPINION
On November 6, 1997, Defendant Larry Donnell Cotton was convicted of one count of
indecent liberties with a minor in violation of N.C. Gen. Stat. § 14-202.1 (1995). At the time of
Cotton's conviction, North Carolina law required Cotton to register as a sex offender for a period
of ten years following his release from prison. N.C. Gen. Stat. § 14-208.7 (1995). When Cotton
was released from jail in October 1998, he signed a notice that explained: "If a person required to
register changes address, the person shall provide written notice of the new address not later than
the tenth day after the change to the sheriff of the county with whom the person had last
registered." Gov’t’s Opp. to Def.’s Mot. to Dismiss Indictment (“Gov’t’s Opp.”) [Docket Entry
12] at 1-2.
On June 8, 2010, a grand jury in this District returned a one count superseding indictment
against Cotton, charging him with failure to register as required by the Sex Offender Registration
and Notification Act ("SORNA" or "the Act"), 42 U.S.C. § 16901 et seq., "in the District of
Columbia and elsewhere." Superseding Indictment 1[Docket Entry 5]. Cotton's indictment
charges activity in violation of SORNA "between on or about May 2007 and on or about October
2008." Id. Cotton moves to dismiss the indictment, asserting eight separate grounds for
dismissal. First, Cotton asserts that he was "unable" to register under existing District of
Columbia law. Second, Cotton contends that SORNA is not applicable to him because the
District of Columbia has yet to implement SORNA. Third, he claims that SORNA is not
applicable to him because he was "unable" to "initially register" under Section 16913(b) of the
Act. Fourth, Cotton maintains that Congress improperly delegated the legislative function of
determining the applicability of SORNA to sex offenders with pre-SORNA convictions. Fifth,
he asserts that the Attorney General’s interim regulation, 28 C.F.R. § 72.3, which applies
SORNA retroactively, was issued in violation of the Administrative Procedure Act. Sixth,
Cotton asserts that the retroactive application of SORNA violates the Ex Post Facto Clause of the
Constitution. Seventh, he argues that application of SORNA to him violates the Due Process
Clause. And eighth, he maintains that SORNA is an unlawful exercise of federal power under the
Commerce Clause.
LEGAL BACKGROUND
Congress enacted SORNA on July 27, 2006 as part of the Adam Walsh Child Protection
and Safety Act. Pub. L. 109-248, Tit. I, 120 Stat. 590. SORNA's stated purpose is to "establish[]
a comprehensive national system for the registration of sex offenders." 42 U.S.C. § 16901.
"Since 1994, federal law has required states, as a condition for the receipt of certain law
enforcement funds, to maintain federally compliant systems for sex-offender registration and
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community notification." Carr v. United States, 130 S. Ct. 2229, 2235 (2010). In an effort to
make these state schemes more effective, SORNA expanded the information that states must
collect and maintain in their sex offender registries, created a federal registration requirement,
and criminalized the failure to register. See 42 U.S.C. §§ 16901, 16913, 16914. Among its
provisions, SORNA established a federal criminal offense, 18 U.S.C. § 2250(a), covering any
person who (1) "is required to register under [SORNA]"; (2) "travels in interstate or foreign
commerce"; and (3) "knowingly fails to register or update a registration." See Carr, 130 S. Ct. at
2235.
In Carr, the Court determined that these elements are to "be read sequentially," meaning
that "a person [who] becomes subject to SORNA's registration requirements . . . must then travel
in interstate commerce and thereafter fail to register." Id. at 2235-36. In other words, Carr
clarified that "[o]nce a person becomes subject to SORNA's registration requirements, which can
occur only after the statute's effective date, that person can be convicted under § 2250 if he
thereafter travels and then fails to register." Id. at 2236. Precisely when a sex offender, like
Cotton, with a pre-SORNA conviction "becomes subject to SORNA’s registration requirements,"
however, is in dispute. See id. at 2234 n.2. SORNA's registration requirements are laid out in 42
U.S.C. § 16913:
(a) In general. A sex offender shall 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. For 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.
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(b) Initial registration. The sex offender shall initially register-
(1) before completing a sentence of imprisonment with respect to the
offense giving rise to the registration requirement; or
(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.
(c) Keeping the registration current. 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. That jurisdiction shall immediately provide
that information to all other jurisdictions in which the offender is required to register.
(d) Initial registration of sex offenders unable to comply with subsection (b). 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).
The Act thus provides in subsection (d) that "[t]he Attorney General shall have the
authority to specify the applicability of the requirements of this subchapter to sex offenders
convicted before July 27, 2006." 42 U.S.C. § 16913(d). Pursuant to this authority, on February
28, 2007, the Attorney General issued an interim rule "to eliminate any possible uncertainty
about the applicability of [SORNA's] requirements," 72 Fed. Reg. 8894, 8896 (2007), and stated
that SORNA's requirements "apply to all sex offenders, including sex offenders convicted of the
offense for which registration is required prior to the enactment of [SORNA]." 28 C.F.R. § 72.3.
When the Attorney General promulgated the interim rule, he did not provide notice of proposed
rulemaking, 5 U.S.C. § 553(b), or allow a 30-day period before the rule became effective, 5
U.S.C. § 553(d), as required by the Administrative Procedure Act (“APA”). Instead, he invoked
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the "good cause" exception of the APA for these requirements. See 5 U.S.C. §§ 553(b)(3)(B) &
(d)(3); 72 Fed. Reg. 8894, 8896-97 (2007).
The Supreme Court in Carr did not resolve the "conflict among the Courts of Appeals as
to when SORNA's registration requirements became applicable to persons convicted of sex
offenses prior to the statute's enactment" or "as to whether § 72.3 was properly promulgated
[under the APA]." Carr, 130 S. Ct. at 2234 n.2. The Court highlighted the conflicts in a footnote,
explaining first that "[s]everal Circuits . . . have taken the position that the Act did not apply to
such sex offenders until the Attorney General provided for their inclusion by issuing an interim
regulation, 28 C.F.R § 72.3, 72 Fed. Reg. 8897, on February 28, 2007." Id.; see United States v.
Valverde, 2010 WL 5263142, at *2 (9th Cir. 2010); United States v. Hatcher, 560 F.3d 222, 226-
29 (4th Cir. 2009); United States v. Cain, 583 F.3d 408, 414-19 (6th Cir. 2009); United States v.
Dixon, 551 F.3d 578, 582 (7th Cir. 2008); United States v. Madera, 528 F.3d 852, 857-59 (11th
Cir. 2008) (per curiam). The Court further observed that "[o]ther Circuits have held that persons
with pre-SORNA sex-offense convictions became subject to the Act's registration requirements
upon the statute's enactment in July 2006." Carr, 130 S. Ct. at 2234 n.2; see United States v.
DiTomasso, 621 F.3d 17, 23 (1st Cir. 2010); United States v. Hinckley, 550 F.3d 926, 929-35
(10th Cir. 2008); United States v. May, 535 F.3d 912, 915-19 (8th Cir. 2008); see also United
States v. Shenandoah, 595 F.3d 151, 163 (3rd Cir. 2010) (ruling that it was "not reach[ing]" the
defendant's APA issue because defendant "was already a registered sex offender when SORNA
was enacted, [and] SORNA only required him to keep his registration current on and after July
27, 2006")).
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The Supreme Court in Carr "similarly express[ed] no view as to whether § 72.3 was
properly promulgated [under the APA] -- a question that has also divided the Circuits." Carr, 130
S. Ct. at 2234 n.2; compare Cain, 583 F.3d at 419-24 (holding that the Attorney General lacked
good cause for issuing the interim regulation without adhering to the APA’s notice-and-comment
and publication requirements); Valverde, 2010 WL 5263142, at *6 (same); with United States v.
Dean, 604 F.3d 1275 (11th Cir. 2010) (finding no APA violation); United States v. Gould, 568
F.3d 459, 469-470 (4th Cir. 2009) (same). Indeed, three of the four Circuit panels that have ruled
on this issue were internally split regarding whether the Attorney General’s explanation
constituted good cause under the APA. See Cain, 583 F.3d at 434-36 (Griffin, J., dissenting);
Dean, 604 F.3d at 1282-90) (Wilson, J., concurring) (finding APA violation, but upholding
conviction under harmless error analysis); Gould, 568 F.3d at 475-82 (Michael, J., dissenting).
These two Circuit splits deal with separate, but related, issues as to when "persons with
pre-SORNA sex-offense convictions became subject to the Act's registration requirements." See
Carr, 130 S. Ct. at 2234 n.2. For example, whether the interim regulation was promulgated
according to the APA would not affect convictions in Circuits that have ruled that "persons with
pre-SORNA sex-offense convictions became subject to the Act's registration requirements upon
the statute's enactment in July 2006." Id.; see Cain, 583 F.3d at 433-34. Among the Circuits
that have concluded that the Act did not apply to this group until the February 28, 2007 interim
regulation, the Sixth and Ninth Circuits have ruled that the interim regulation was issued in
violation of the notice and comment and publication requirements of the APA. See Cain, 583
F.3d at 419-424; Valverde, 2010 WL 5263142 at *6. Hence, in these Circuits, a person with a
pre-SORNA sex-offense conviction becomes subject to SORNA's registration requirements not
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on February 28, 2007, the date of the issuance of the interim regulation (in violation of the APA
under Cain and Valverde), but instead on August 1, 2008, only after the issuance of SORNA's
final guidelines, which were promulgated in accordance with the APA. See United States v.
Utesch, 596 F.3d 302, 311 (6th Cir. 2010) ("SORNA became effective against offenders
convicted before its enactment thirty days after the final SMART guidelines were published: that
is, on August 1, 2008."); Valverde, 2010 WL 5263142 at *1 (same).
Therefore, three potential "effective dates" exist for persons with pre-SORNA sex-offense
convictions: SORNA’s date of enactment (July 27, 2006); the date the Attorney General issued
the interim rule (February 28, 2007); or thirty days after final guidelines were published (August
1, 2008). For the reasons described below, this Court rules that SORNA’s effective date for
persons with pre-SORNA sex-offense convictions, like Cotton, is August 1, 2008. Here,
Cotton's indictment charges activity in violation of SORNA "between on or about May 2007 and
on or about October 2008." Superseding Indictment at 1. Because Cotton's indictment covers
activity three months beyond SORNA’s effective date, and it may be that Cotton traveled and
failed to register after August 1, 2008 (but before October 30, 2008), the Court will not dismiss
Cotton’s indictment at this time for the Attorney General’s failure to comply with the APA.
Cotton’s other arguments are without merit.
ANALYSIS
Cotton asserts eight separate grounds for the dismissal of his indictment. His claims
either contest SORNA’a applicability to him under the statutory and administrative framework of
the Act, or challenge the Act’s constitutionality. The Court will first address the statutory and
administrative arguments, and then the constitutional challenges.
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I. Statutory and Administrative Arguments
a. Duty to Register under D.C. Law
Defendant argues that he was "unable" to register under SORNA because he does not
have a duty to register under District of Columbia law. This argument has no merit. Defendant
was convicted in 1997 of one count of indecent liberties with a child under North Carolina law
and ordered to register as a sex offender for ten years following release from jail. See N.C. Gen.
Stat. § 14-208.7 (1995); Gov’t’s Mot. at 1. Cotton allegedly moved to the District of Columbia
within that ten-year registration period. Superseding Indictment at 1. The District of Columbia
requires individuals convicted of sex offenses in other states to register in the District if their
underlying convictions fit within the definition of a "registration offense" under the D.C. sex
offender registration statute. See 22 D.C. Code § 4001, et seq. Here, Cotton’s conviction for
indecent liberties with a minor under North Carolina law is a "registration offense" under D.C.
Code § 4001(8)(G). Hence, Cotton had a duty to register in the District of Columbia.
b. SORNA’s Effective Date
The Circuits "have disagreed about the meaning and effect of [SORNA's]
statutory/regulatory mosaic." DiTomasso, 621 F.3d at 21. Hence, this Court will first address the
central disputed issue: exactly when “persons with pre-SORNA sex-offense convictions became
subject to the Act’s registration requirements.” Carr, 130 S. Ct. at 2234 n.2. The issue turns on
the "two pertinent clauses" of § 16913(d) and the extent of the Attorney General's delegated
authority. See id. Courts have interpreted the statutory language in two ways. Some have ruled
that the first clause, which states that "[t]he Attorney General shall have the authority to specify
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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," § 16913(d),
"unambiguously delegated" to the Attorney General the authority to determine the applicability of
SORNA to all persons with pre-SORNA sex-offense convictions. See Cain, 583 F.3d at 419.
Other courts have focused on the second clause of § 16913(d) -- "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)" -- and determined that the Attorney General had more limited
authority to determine SORNA's applicability "only as to specific subsets" of sex offenders who
were "unable to initially register under SORNA." See DiTomasso, 621 F.3d at 21.
Under the first view, courts have concluded that, by its plain language, SORNA did not
apply to previously convicted sex offenders until the Attorney General so specified. See Hatcher,
560 F.3d 229. That plain meaning approach to statutory construction is well established. Indeed,
"[t]he plain meaning of legislation should be conclusive, except in the 'rare cases [in which] the
literal application of a statute will produce a result demonstrably at odds with the intentions of its
drafters.'" United States v. Ron Pair Enterp., Inc., 489 U.S. 235, 242 (1989) (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)); see also Qi-Zhuo v. Meissner, 70 F.3d 136,
140 (D.C. Cir.1995) ("Where ... the plain language of the statute is clear, the court generally will
not inquire further into its meaning."). Only if the "plain language compels an 'odd result'" may
the court "refer to evidence of legislative intent other than the text itself." Engine Mfrs. Ass'n v.
EPA, 88 F.3d 1075, 1088 (D.C. Cir. 1996). "[R]ebutting the presumption created by clear
language is onerous" and the proponent "must 'show either that, as a matter of historical fact,
Congress did not mean what it appears to have said, or that, as a matter of logic and statutory
9
structure, it almost surely could not have meant it.'" Nat'l Public Radio, Inc. v. FCC, 254 F.3d
226, 230 (D.C. Cir. 2001)(quoting Engine Mfrs. Ass'n, 88 F.3d at 1089).
This Court joins the Circuits that have ruled that the plain language of SORNA clearly
delegates authority to the Attorney General to specify the requirements of SORNA for all sex
offenders who were convicted before SORNA’s enactment. The two clauses of subsection
16913(d) support this interpretation. The first clause states that 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 [i.e., July 27, 2006] or its implementation in a
particular jurisdiction." 42 U.S.C. § 16913(d). "This clause, fairly read, delegates to the Attorney
General the authority to specify the requirements of SORNA for all sex offenders who were
convicted before the enactment of SORNA." Hatcher, 560 F.3d at 227. Congress selected the
phrase "shall have the authority," which signals that Congress gave the Attorney General
exclusive authority to determine the applicability of SORNA to pre-SORNA offenders. See id.Therefore, until the Attorney General affirmatively specified, SORNA's requirements would
apply only prospectively and not to pre-SORNA offenders such as Cotton.
The second clause of § 16913(d) delegates to the Attorney General the authority "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)." 42 U.S.C. § 16913(d). "The second
clause of the subsection thus gives the Attorney General the authority to promulgate registration
rules for two distinct groups of sex offenders: (1) sex offenders who were convicted before July
27, 2006, and (2) offenders who are unable to comply with subsection (b), the subsection
containing SORNA's initial registration requirements." Hatcher, 560 F.3d at 227. The first and
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second clauses, then, together delegate to the Attorney General the authority to (1) "specify the
applicability" of SORNA with regard to pre-SORNA offenders and (2) "prescribe rules for the
registration" of all pre-SORNA offenders in addition to "other categories of sex offenders" who
are unable to comply with the initial registration requirements. See § 16913(d).
The title of § 16913(d) may appear to limit the applicability of the subsection to sex
offenders "unable to comply with subsection (b)." See Cain, 583 F.3d at 416. But "[o]nly if we
determine that the terms of a statutory provision are ambiguous are we then permitted to consider
other evidence to interpret the meaning of the provision, including the legislative history and the
provision's heading or title." Hatcher, 560 F.3d at 226; see Bhd. of R.R. Trainmen v. Balt. &
Ohio R.R. Co., 331 U.S. 519, 528-29 (1947) ("[T]he title of a statute and the heading of a section
cannot limit the plain meaning of the text."). If the text of subsection (d) is not ambiguous -- and
here it is not -- "its title makes no difference." Cain, 583 F.3d at 416. Furthermore, the title does
not necessarily “conflict" with this Court’s interpretation of § 16913(d), it merely "refers to the
authority given to the Attorney General by the second clause of subsection (d)" rather than the
first. See id.
Here, moreover, the plain language does not "compel[] an 'odd result.'" See Engine Mfrs.
Ass'n, 88 F.3d at 1088; Hatcher, 560 F.3d at 228 ("[Subsection (d) does not] run[] counter to the
clearly expressed congressional intent or produce[] an absurd outcome."). "Given the patchwork
of state approaches towards sex offender registration that existed prior to the enactment of
SORNA, it was not 'absurd' for Congress to delegate this authority to the Attorney General, with
the intent that he exercise it to effectuate a comprehensive registration system." Hatcher, 560
F.3d at 228. Indeed, subsection (d) delegated to the Attorney General the authority to determine
11
whether SORNA’s requirements apply to sex offenders with pre-SORNA convictions, and that is
precisely what the Attorney General specified in his February 28, 2007 interim rule.
Under the second view, which this court does not adopt, courts have ruled that the plain
language is ambiguous and that, read in context, SORNA applied to previously convicted sex
offenders on the date of its enactment. See DiTomasso, 621 F.3d at 21 ("No less an authority
than the Supreme Court has warned that 'the meaning of statutory language, plain or not, depends
on context.'") (quoting Holloway v. United States, 526 U.S. 1, 7 (1999)). In DiTomasso, the First
Circuit observed that the language in the first clause of subsection (d) "might appear
straightforward if read in a vacuum, [but] a mechanical reading of it as applying to all previously
convicted sex offenders would wrest it from its contextual moorings." 621 F.3d at 22. Similarly,
the Tenth Circuit in Hinckley found the language ambiguous and endeavored to determine
Congress's intent:
[W]hen considered in context, it becomes clear that Congress did not intend to
exempt all sex offenders convicted before July 27, 2006, from SORNA's
requirements. Many sex offenders convicted before that date (those still
incarcerated or awaiting sentencing) would be able to comply with subsection
(b)'s initial registration requirement. There would be no reason for Congress to
exempt such sex offenders. Congress was likely concerned with old convictions --
offenders who had already served their sentences and never before had been
required to register.
Hinckley, 550 F.3d at 934.
After similarly ruling that subsection (d) was ambiguous, the Eighth Circuit in May
determined that an alternative interpretation that limited the Attorney General's authority was
"eminently reasonable." May, 535 F.3d at 918 ("Although the word 'shall' indicates a
congressional directive, the question remains as to what § 16913(d) was specifically directing the
Attorney General to regulate."). The court in May concluded that "[a]n additional possible
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meaning of subsection (d) is that past offenders . . . are included within (and not a separate group
from) the broader category of 'sex offenders who are unable to comply with subsection (b),' and it
is only as to those 'sex offenders who are unable to comply with subsection (b)' that the Attorney
General was given authority under subsection (d) to issue clarifying regulations." Id. (quoting
United States v. Beasley, 2007 WL 3489999 (N.D. Ga. Oct. 10, 2007)) (emphasis in May). This
"additional possible meaning of subsection (d)," the court concluded, was "supported by the use
of the statutory terminology 'other categories of sex offenders who are unable to comply with
subsection (b) of this section.'" May, 535 F.3d at 918 (quoting § 16913(d)). The "offenders
convicted before July 27, 2006" could be "included within the 'other categories of sex offenders
who are unable to comply with subsection (b) of this section.'" Id. And, "at the very least," this
alternative possible meaning "creates an ambiguity, and triggers the permissible reference to the
title." Id. (citing INS v. Nat'l Ctr. for Immigrants' Rights, 502 U.S. 183, 189 (1991) ("[T]he title
of a statute or section can aid in resolving an ambiguity in the legislation's text.")). Hence, when
"considering § 16913(d)'s title and the overall design of SORNA," the May court concluded that
"subsection (d) 'is very narrow in scope: only those currently unregistered offenders literally
unable to comply with [subsection] (b) because of the age of their convictions are within the grey
area which the Attorney General is authorized to illuminate by rule.'" May, 535 F.3d at 918-19(citations omitted).
This view strays too far from the plain, unambiguous language of section 16913(d) of
SORNA. These courts have mistakenly attempted to craft Congress's intent, its "likely
concern[s]," and "additional possible meaning[s]" from strained reinterpretations of that statutory
text. See Hinckley, 550 F.3d at 934; May, 535 F.3d at 918-19. But this is not one of the "rare
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cases [in which] the literal application of a statute will produce a result demonstrably at odds
with the intentions of its drafters," see Ron Pair Enterp., Inc., 489 U.S. at 242, and the
government cannot "show either that, as a matter of historical fact, Congress did not mean what it
appears to have said, or that, as a matter of logic and statutory structure, it almost surely could
not have meant it." Nat'l Public Radio, Inc., 254 F.3d at 230 (quoting Engine Mfrs. Ass'n, 88
F.3d at 1089). To be sure, courts may be uncomfortable adopting a statutory interpretation that
will reduce the number of sex offender registration convictions under SORNA, but this Court
must follow Congress’s stated intent and not substitute alternate meanings for the plain language
of the statute.
In this Court's assessment, the "alternative interpretation of § 16913(d) is foreclosed by
the plain language of the subsection." Hatcher, 560 F.3d at 228. Indeed, that "interpretation
effectively writes the first clause of § 16913(d) out of the statute" and hence "is not a tenable
interpretation." Hinckley, 550 F.3d at 949 (McConnell, J., dissenting). A straightforward
reading of § 16913(d) reveals a reference to two distinct categories of sex offenders: "[t]he
second clause of the subsection specifies that the Attorney General may prescribe registration
rules for 'such sex offenders,' i.e. pre-SORNA offenders, and for other categories of sex
offenders who are unable to comply with the initial registration requirements." Hatcher, 560
F.3d at 228 (emphasis in original). Thus, "[i]t is . . . clear that the category of pre-SORNA
offenders is a distinct category from 'categories of sex offenders who are unable to comply with
subsection (b),' and the category of pre-SORNA offenders is not included within this latter group.
To interpret § 16913(d) as including the set of pre-SORNA offenders within the set of 'categories
of sex offenders who are unable to comply with subsection (b)' ignores the term 'other,' which
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indicates that the two sets are distinct." Id.; see also Hinckley, 550 F.3d at 951 (McConnell, J.,
dissenting)("It would be like interpreting a statute that applies to 'humans and to other categories
of primate who walk on two legs' as excluding paraplegic humans.").
The two clauses of § 16913(d) give the Attorney General distinct authorities -- to
determine the retroactivity of SORNA and to prescribe rules for registration under SORNA.
Neither clause is itself ambiguous; nor does reading the clauses together produce any ambiguity
or an odd result. See Hatcher, 560 F.3d at 228-29; Hinckley, 550 F.3d at 949-52 (McConnell, J.,
dissenting). To adopt the alternative interpretation urged by some courts as better accomplishing
a perceived legislative intent would simply ignore the plain language of § 16913(d) actually
employed by Congress, which this Court will not do. Hence, the Court concludes that SORNA
did not apply to previously convicted sex offenders until the Attorney General promulgated a rule
saying so. That leads to the question, discussed below, whether the interim rule, promulgated on
February 28, 2007, set that effective date or whether it was issued in violation of the APA, and
therefore could not do so.
c. Administrative Procedure Act
Pursuant to the authority provided in § 16913(d), on February 28, 2007, the Attorney
General issued an interim rule making SORNA retroactive to all sex offenders convicted prior to
July 27, 2006. 28 C.F.R. § 72.3. The interim rule was made effective immediately and was
issued without a pre-promulgation notice or comment period, although the Attorney General
stated that he would accept comments on the rule through April 30, 2007. See 72 Fed. Reg. at
8895-97 (2007). On July 2, 2008, the Attorney General published the final Sex Offender
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Monitoring, Apprehending, Registering and Tracking ("SMART") Guidelines for jurisdictions to
implement SORNA. See 73 Fed. Reg. 38030 (July 2, 2008).
Generally, under the APA, an agency must follow specific procedures before issuing a
rule. The APA requires that "[g]eneral notice of proposed rule making shall be published in the
Federal Register," 5 U.S.C. 553(b); that "[a]fter notice required by this section, the agency shall
give interested persons an opportunity to participate in the rule making through submission[s],"
id. § 553(c); that "[a]fter consideration of the relevant matter presented, the agency shall
incorporate in the rules adopted a concise general statement of their basis and purpose," id.; and
that a "substantive rule" shall be published "not less than 30 days before its effective date," id. §
553(d). See U.S. Telecom Ass'n v. F.C.C., 400 F.3d 29, 40 (D.C. Cir. 2005).
However, the agency is relieved of these notice and comment obligations "when the
agency for good cause finds (and incorporates the finding and a brief statement of reasons
therefor in the rules issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(3)(B). The agency may also be
excused from the required 30-day delay in a published rule’s effective date "for good cause found
and published with the rule." § 553(d)(3). In issuing the interim rule on the retroactivity of
SORNA, the Attorney General invoked these good cause exceptions:
The immediate effectiveness of this rule is necessary to eliminate any
possible uncertainty about the applicability of the Act's requirements -- and related
means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex
offenders who knowingly fail to register as required -- to sex offenders whose
predicate convictions predate the enactment of SORNA. Delay in the
implementation of this rule would impede the effective registration of such sex
offenders and would impair immediate efforts to protect the public from sex
offenders who fail to register through prosecution and the imposition of criminal
sanctions. The resulting practical dangers include the commission of additional
sexual assaults and child sexual abuse or exploitation offenses by sex offenders
16
that could have been prevented had local authorities and the community been
aware of their presence, in addition to greater difficulty in apprehending
perpetrators who have not been registered and tracked as provided by SORNA.
This would thwart the legislative objective of “protect[ing] the public from sex
offenders and offenders against children” by establishing “a comprehensive
national system for the registration of those offenders,” SORNA § 102, because a
substantial class of sex offenders could evade the Act's registration requirements
and enforcement mechanisms during the pendency of a proposed rule and delay in
the effectiveness of a final rule.
It would accordingly be contrary to the public interest to adopt this rule
with the prior notice and comment period normally required under 5 U.S.C.
553(b) or with the delayed effective date normally required under 5 U.S.C. 553(d).
72 Fed. Reg. at 8896-97.
Cotton argues that the Attorney General did not demonstrate "good cause" to bypass the
notice and comment and publication requirements of the APA. Indeed, the D.C. Circuit instructs
that the "good cause" exception is to be "narrowly construed and only reluctantly countenanced. .
. . [I]ts use should be limited to emergency situations." Utility Solid Waste Activities Group v.
Envtl. Prot. Agency, 236 F.2d 749, 754 (D.C. Cir. 2001) (quoting Tenn. Gas Pipeline Co. v.
FERC, 969 F.2d 1141, 1144 (D.C. Cir 1992)). The Sixth and Ninth Circuits have ruled that the
government did not meet the heavy "burden to show that good cause exists." Cain, 583 F.3d at
422; see Valverde, 2010 WL 5263142, at *5 ("[T]he Attorney General’s statement accompanying
the interim rule provided no rational justification for why complying with the normal
requirements of the APA would have resulted in a sufficient risk of harm to justify the issuance
of the February 28, 2007 retroactivity determination on an emergency basis."). The Fourth and
Eleventh Circuits have reached the opposite conclusion. See Gould, 568 F.3d at 470 ("In the
circumstances, we conclude that the Attorney General had good cause to invoke the exception to
providing the 30-day notice."); Dean, 604 F.3d at 1282 (rejecting the reasoning in Cain and
17
holding that "[t]he Attorney General had good cause to bypass the Administrative Procedure
Act's notice and comment requirement"); see also Dixon, 551 F.3d at 582 (noting only that
defendant made a "frivolous" APA argument, but acquitting defendant because his conviction
violated the Ex Post Facto Clause).
The government argues that the courts in Dean and Gould are correct, and that the
Attorney General properly invoked the public interest element of the good cause exception when
he issued the interim rule. Gov't's Supp. Mot. in Opp'n. to Def.'s Mot. to Dismiss ("Gov't Supp.
Opp'n") [Docket Entry 19] at 2-3. In Gould, the Fourth Circuit concluded that the Attorney
General had good cause "to invoke the exception to providing the 30-day notice" because "there
was need for legal certainty about SORNA’s 'retroactive' application," "a concern for public
safety that these offenders be registered in accordance with SORNA as quickly as possible," and
"the Attorney General did provide for and receive post-promulgation public comments." Gould,
568 F.3d at 470. The Eleventh Circuit in Dean agreed with Gould that the "public safety
argument" constituted good cause, but noted that the need for legal certainty alone may not be
sufficient to establish good cause, and "that allowing post-promulgation comments to resolve any
harm caused by a lack of notice and comment would render the notice and comment provision
toothless." Dean, 604 F.3d 1281.
This Court agrees with the Sixth Circuit’s observation in Cain that the Attorney General's
explanation that delay would "eliminate any possible uncertainty about the applicability of the
Act's requirements" is insufficient, because any regulation has the effect of resolving uncertainty.
See Cain, 583 F.3d at 421. "[G]ood cause to suspend notice and comment must be supported by
more than the bare need to have regulations." Nat'l Ass'n of Farmworkers Orgs. v. Marshall, 628
18
F.2d 604, 621 (D.C. Cir. 1980). Indeed, "[i]f 'good cause' could be satisfied by an Agency’s
assertion that 'normal procedures were not followed because of the need to provide immediate
guidance and information[,] . . . then an exception to the notice requirement would be created
that would swallow the rule.'" Valverde, 2010 WL 5263142, at *6 (quoting Zhang v. Slattery, 55
F.3d 732, 746 (2d Cir. 1995)). Hence, "[a] 'desire to provide immediate guidance, without more,
does not suffice for good cause.'" Cain, 583 F.3d at 425 (quoting Mobil Oil Corp. v. Dep't of
Energy, 610 F.2d 796, 803 (Temp. Emer. Ct. App. 1979)).
Beyond "eliminat[ing] any possible uncertainty about the applicability of the Act’s
requirements," however, the government merely highlights the Attorney General’s explanation
that SORNA creates a comprehensive federal registration requirement, enforced by a substantial
federal criminal penalty. Gov't Supp. Opp'n at 5; see 72 Fed. Reg. at 8896-97. The government
maintains that the Attorney General identified "specific reasons" for good cause that "certainly
satisf[y] the definition of an emergency." Gov’t Supp. Opp’n at 8. Citing the preamble to the
interim rule, the government highlights the Attorney General’s explanation of "the observed
trend of pre-SORNA sex offenders crafting arguments that SORNA does not apply to them" and
the "risk of sexual assaults and child sexual abuse if pre-SORNA sex offenders – 'virtually the
entire sex offender population'" – were not required to register under SORNA. Id. (citing 72 Fed.
Reg. at 8896-97). Given that the "risk of recidivism posed by sex offenders is 'frightening and
high[,]'" Smith v. Doe, 538 U.S. 84, 103 (2003) (internal citations omitted), the government
argues that any delay of SORNA's application to all sex offenders would be contrary to the public
interest. Gov't Supp. Opp'n at 5. Furthermore, the government notes that "SORNA brings to bear
19
the power of federal law enforcement, including the United States Marshals Service, to assist in
locating and apprehending sex offenders who fail to register." Gov’t Supp. Opp’n at 9.
A "trend" of "virtually the entire sex offender population" attempting to evade SORNA
registration, or a "frightening and high" risk of recidivism for sex offenders might well qualify as
an emergency" and thus establish good cause. But these statements are simply not present in the
Attorney General's good cause explanation. See 72 Fed. Reg. at 8896-97. And the interim rule
makes no mention of the Marshals Service and how it might "apprehend[] sex offenders who fail
to register." See id.
In Dean, the Eleventh Circuit supports its good cause analysis by observing that SORNA
"expands the definition of sex offender to include . . . foreign offenders and some juvenile
offenders" and provides "substantially" enhanced penalties compared to previous federal
registration offenses. Dean, 604 F.3d at 1282. But in his concurrence in Dean, in which he
concluded that the Attorney General failed to establish good cause, Judge Wilson accurately
notes that "the majority opinion's arguments for good cause on the basis of extra help from the
U.S. Marshals, and the expanded scope and enhanced penalties of SORNA, do not explicitly
appear in the 400-word justification that the APA required the Attorney General to publish as a
condition of good cause." Id. at 1287 n.13 (Wilson, J., concurring). "Courts are not supposed to
help an administrative agency make its case when the agency by itself cannot." Id. A "reviewing
court should not attempt itself to make up for such deficiencies; [it] may not supply a reasoned
basis for the agency’s action that the agency itself has not given." Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983).
20
The government asserts that the APA good cause standard extends beyond "emergency
situation[s]," to "where delay could result in serious harm." Gov't Supp. Opp'n at 8, 9; Dean, 604
F.3d at 1281 ("Delaying implementation of the regulation to accommodate notice and comment
could reasonably be found to put the public safety at greater risk."). Perhaps so, but whether the
government must demonstrate an "emergency situation" or just a risk of serious harm, the
government's argument ultimately falls under the weight of D.C. Circuit case law that has
repeatedly instructed that the good cause standard must be "narrowly construed and only
reluctantly countenanced." Utility Solid Waste Activities Group, 236 F.2d at 754; see also Tenn.
Gas Pipeline Co., 969 F.2d at 1144; Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 2004); New
Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cir. 1980).
The exemption of situations of emergency or necessity is not an "escape clause" in
the sense that any agency has discretion to disregard its terms or the facts. A true
and supported or supportable finding of necessity or emergency must be made and
published. "Impracticable" means a situation in which the due and required
execution of the agency functions would be unavoidably prevented by its
undertaking public rule-making proceedings.
New Jersey v. EPA, 626 F.2d at 1046 (quoting S. Doc. No. 248, 79th Cong., 2d Sess. 200
(1946)). The Attorney General’s proffered reasons for good cause here simply do not meet this
strict standard.
Exceptions to the good cause requirement have been found if Congress "set[s] aside the
APA when it specifically requires rapid action." Cain, 583 F.3d at 421; see Methodist Hosp. of
Sacramento v. Shalala, 38 F.3d 1225, 1237 (D.C. Cir. 1994) (finding good cause when "Congress
has expressed its clear intent that APA notice and comment procedures need not be followed").
Here, when Congress delegated regulatory authority to the Attorney General, it did not excuse
21
him from following the APA's requirements. See Cain, 583 F.2d at 421. No indication of such
urgency can be found in section 16913(d) or elsewhere in SORNA. Indeed, "in spite of the
Attorney General’s hurried rulemaking, no state thus far has elected to implement SORNA, and
the Attorney General recently granted a blanket one-year extension to all jurisdictions to allow
substantial implementation of the Act." Valverde, 2010 WL 5263142, at *7 (quoting Gould, 568
F.3d at 480 (Michael, J. dissenting)).
This Court concludes that the government cannot demonstrate that the effective date of
SORNA poses an "emergency situation" or that "delay could result in serious harm," given the
pre-existing state and federal sex offender registry schemes that were in place already and that
allowed for the "prosecution and imposition of criminal sanctions" for a sex offender's failure to
register. See Cain, 583 F.3d at 422. The retroactive application of SORNA therefore "does not
present the type of safety emergency that some courts have relied upon to find just cause to
bypass notice and comment." Id. Public safety emergency situations -- rarely found -- have been
used to dispense with APA requirements when "a safety investigation shows that a new safety
rule must be put in place immediately," Util. Solid Waste Activities Group, 236 F.3d at 754-55,
or when "the agency had specific reasons to conclude that its existing regulations insufficiently
protected public safety," Cain, 583 F.3d at 422; see also Jifry, 370 F.3d at 1180 (finding good
cause for regulations that suspended an individual's pilot certificate if the TSA determined that
pilot posed a security threat in light of "legitimate concern over the threat of further terrorist acts
involving aircraft in the aftermath of September 11, 2001"). This Court is limited to reviewing
the Attorney General's proffered justification for good cause, and here he "gave no specific
22
evidence of actual harm in his conclusory statement of reasons, and gave no explanation for why
he could act in an emergency fashion" to apply SORNA retroactively. Cain, 583 F.3d 422.
Moreover, "[t]he fact that the regulation imposes a new obligation, on pain of severe
criminal sanctions, only reinforces the need for the statutory protections in place when an agency
engages in quasi-legislation." Id. In United States v. Picciotto, the D.C. Circuit held that the
Park Service had not properly promulgated a rule under the APA and noted that "before a person
is threatened with jail . . . the government must ensure that the rule itself is not in violation of the
law." 875 F.2d 345, 349 (D.C. Cir. 1989). The court reversed the defendant's regulatory
conviction, observing that "[c]ertainly, a criminal prosecution founded on an agency rule should
be held to the strict letter of the APA." Id. at 346. Where defendants face felony charges and
prison sentences of up to ten years, as is the case here, adherence to the procedural requirements
of the APA is even more critical.
This Court is not persuaded by the harmless error argument advanced in the Dean
concurrence. See Dean, 604 F.3d at 1288-90 (Wilson, J., concurring). The argument proceeds
that "'[i]f the agency’s mistake did not affect the outcome, if it did not prejudice the petitioner, it
would be senseless to vacate and remand for consideration.'" Id. at 1288 (quoting PDK Labs.
Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004). Under this analysis, any SORNA offender
arrested more than 30 days after the promulgation of the interim regulation would not be
prejudiced by the Attorney General’s failure to comply with the APA’s pre-enactment delay
requirement. And any offender who could not demonstrate that "he could have arguably
mounted a 'credible challenge' for changing the rule as it affected him" would not be prejudiced
by the Attorney General’s failure to comply with the APA’s notice and comment requirements.
23
See id. But this argument would eviscerate the good cause standard because "an agency could
always violate the APA's procedural requirements based on the representation that it would have
adopted the same rule had the proper process been followed." Utesch, 596 F.3d at 312 ("Courts
have generally applied the harmless-error rule in the agency context when the procedural
deficiencies did not defeat the purpose of the bypassed requirements. . . . Here, the process was
fatally flawed; the Attorney General provided affected parties no opportunity to participate in the
crafting of the interim rule before it purported to take effect against them."); Valverde, 2010 WL
5263142, at *9 n.3 ("'[T]he interim regulation’s procedural defects were not harmless' because . .
. '[t]he fact that the Attorney General eventually made SORNA retroactive through legitimate
means cannot sustain prosecution of an individual based on conduct committed long before the
final guideline’s enactment.'")(quoting Utesch, 596 F.3d at 312-13).
Nonetheless, the indictment may survive Cotton’s motion to dismiss despite the Court's
conclusion that the interim rule is invalid under the APA. In Utesch, the Sixth Circuit assessed
"whether there exists any valid regulation promulgated by the Attorney General pursuant to
§16913(d)." 596 F.3d at 308. The court found "three candidates: (1) the February 28, 2007
interim regulation, (2) the preliminary SMART guidelines issued on May 30, 2007, and (3) the
final SMART guidelines issued on July 2, 2008." Id. Because this Court concludes that the
February 28, 2007 interim rule was not issued in accordance with the APA, that rule did not
make SORNA effective against Cotton. The preliminary SMART guidelines, which were
promulgated under notice and comment procedures, included a provision making SORNA
retroactive. See id.; 72 Fed. Reg. at 30,212. The preliminary guidelines were published on May
30, 2007 and stated that comments would be accepted until August 1, 2007. 72 Fed. Reg. at
24
30,210. Hence, those preliminary guidelines simply constituted a proposed rule, not a final rule,
and did not have the force of law. See Utesch, 596 F.3d at 310-11. Subsequently, the Attorney
General "issued the final SMART guidelines on July 2, 2008, responding to the comments
received and maintaining that SORNA would be applied retroactively." Id. at 310; 73 Fed. Reg.
at 38,030-31; 38,035-36; 38,046-47. "Though the guidelines themselves provide an immediate
effective date of July 2, 2008, the Attorney General provided no statement of reasons to establish
'good cause' for disposing of the thirty-day publication requirement." Utesch, 596 F.3d at 311 n.8;
see 5 U.S.C. § 553(d). Hence, "SORNA became effective against offenders convicted before its
enactment thirty days after the final SMART guidelines were published: that is, on August 1,
2008." Utesch, 596 F.3d at 307; accord Valverde, 2010 WL 5263142, at *10.
This Court agrees with the reasoning of the Sixth and Ninth Circuits, under which the
interim rule is invalid and SORNA did not become effective until August 1, 2008, thirty days
after the final SMART guidelines were issued. Here, Cotton's indictment charges activity in
violation of SORNA "between on or about May 2007 and on or about October 2008."
Superceding Indictment at 1. Hence, the charging period in Cotton's indictment extends three
months beyond the August 1, 2008 SORNA effective date and therefore the indictment should
not be dismissed at this time. At least two other district courts have followed this logic. In
United States v. Coleman, 2009 WL 4255545 (E.D. Ky. Nov. 24, 2009), the indictment alleged
that the defendant's actions occurred "[b]etween on or about a date in April, 2007, the exact date
unknown, and April 28, 2009." Coleman, 2009 WL 4255545, at *1. The court reasoned that even
though the interim rule could not be applied to the defendant in light of Cain, the final SMART
guidelines "clearly" could be. Id. at *4. Similarly, another court decided not to dismiss the
25
defendant’s indictment because it included a time period more than a year after August 1, 2008.
See United States v. Jackson, 2010 WL 3325611, at *13 (N.D. Cal. Aug. 23, 2010). The court
in Jackson reasoned that, "[c]onsidering only the face of the indictment, it is possible that
Defendant committed the proscribed acts after August 1, 2008, the date of the adoption of the
final regulations on retroactivity. Under these circumstances, dismissal of the indictment would
be inappropriate." Id. The same is true here. Hence, the Court will not at this time dismiss
Cotton’s indictment for the Attorney General’s failure to comply with the APA because it may be
that Cotton traveled and failed to register after August 1, 2008 but before October 30, 2008.
d. Implementation of SORNA
Cotton argues that because the District of Columbia has not yet implemented SORNA, he
has no duty to register under SORNA. He asserts that "although SORNA became law on July 26,
2006, Congress did not identify a date upon which the sex offender provisions are to be effective,
other than to state a deadline of July 27, 2009, for implementation of the Act by all jurisdictions."
Def.'s Mot. to Dismiss Indictment ("Def.'’s Mot.") [Docket Entry 10] at 10. Because the District
of Columbia has not yet implemented SORNA’s registration and notification requirements,
Cotton asserts that "he cannot possibly be subject to the Act’s constraints." Id. Cotton’s
argument "depends on a construction of SORNA that links the requirement imposed on the
States to implement the registration standards mandated by SORNA in a manner that would have
the requirement imposed on individuals be dependent on the State’s implementation." Gould,
568 F.3d at 463. But SORNA’s language does not provide that linkage.
Cotton asserts that, under section 16913(d), Congress delegated to the Attorney General
the authority to specify the retroactive applicability of SORNA to persons "(a) 'convicted before
26
July 27, 2006,' (b) 'convicted before [SORNA’s] implementation in a particular jurisdiction,' and
(c) 'unable' to initially register under Section 16913(b) of the Act." Def.’s Mot. at 10. Therefore,
defendant’s argument continues, because the Attorney General has not affirmatively specified the
retroactivity of SORNA to persons convicted before SORNA’s "implementation in a particular
jurisdiction" or to those "unable" to initially register, the Act does not yet apply to Cotton. Id.This is an attempt to rewrite the statute. Congress delegated to the Attorney General "the
authority to specify the applicability of the requirements of this subchapter to sex offenders
convicted before the enactment of this subchapter or its implementation in a particular
jurisdiction." § 16913(d). And this is just what the Attorney General did: he expressly applied
SORNA registration requirements "'to all sex offenders, including sex offenders convicted of the
offense for which registration is required prior to the enactment of that Act.'" United States v.
Ambert, 461 F.3d 1202, 1206 (11th Cir. 2009)(quoting 28 C.F.R. § 72.3)(emphasis added). The
Attorney General’s regulations clarify that SORNA applies retroactively to sex offenders, like
Cotton, who were convicted before SORNA’s enactment, and these requirements to register are
not "conditioned on a State’s implementation of the Act." See Gould 568 F. 3d at 464.
The final SMART Guidelines, which the Attorney General issued on July 2, 2008,
"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 38030. Cotton asserts that the SMART guidelines explain the duty to register under
SORNA only after a jurisdiction implements SORNA: "sex offenders in these [] populations . . .
must be registered by the jurisdiction when it implements the SORNA requirements in its
system." 72 Fed. Reg. at 30228. But Cotton’s argument "fails to appreciate the distinction
27
between a jurisdiction’s duty to implement SORNA and a sex offender’s duty to register."
United States v. Brown, 586 F.3d 1342, 1348 (11th Cir. 2008). A sex offender's duty to register
under SORNA is not contingent on a jurisdiction's implementation of SORNA. See Gould, 568
F.3d at 465 ("[T]he requirement imposed on individuals to register is independent of the
requirement imposed on the States to implement the enhanced registration and notification
standards of SORNA."); Hinckley, 550 F.3d at 939 (rejecting defendant's argument that it was
impossible for him to register under SORNA because the state had not passed legislation
implementing SORNA); Dixon, 551 F.3d at 582 (same).
The structure of SORNA's requirements indicates that the sex offenders' individual duty
to register and the State's duty to enhance its registries and standards as mandated by the Act are
separate. See Gould, 568 F.3d at 464. As the Attorney General's SMART Guidelines explain,
"[s]ome of the provisions in SORNA are formulated as directions to sex offenders, including
those appearing in sections 113(a)-(b) . . . . Other SORNA provisions are cast as directions to
jurisdictions . . . ." 73 Fed. Reg. at 38048 (emphasis added). Furthermore, the SMART
Guidelines "emphasize, with greater particularity, that 'SORNA applies to all sex offenders,
including those convicted of their registration offenses prior to the enactment of SORNA or prior
to particular jurisdictions’ incorporation of the SORNA requirements into their programs.'"
Gould, 568 F.3d at 465 (quoting 73 Fed. Reg. at 38063). "Accordingly, SORNA’s requirement
that a sex offender register applies whether registration would be accomplished through pre-
SORNA registration facilities or under SORNA-complaint programs." Id. at 465-66. Cotton’s
duty to register under SORNA existed, then, whether or not D.C. had implemented SORNA’s
enhanced registration and notification standards.
28
e. Sex Offenders "Unable" to "Initially Register"
Next, Cotton argues that he is "unable" to "initially register" under SORNA because his
conviction pre-dates SORNA registration and notification requirements under section 16913(b).
Section 16913(b) states that a sex offender "shall initially register (1) before completing a
sentence of imprisonment with respect to the offense giving rise to the registration requirement;
or (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." Defendant's argument continues as follows: due to
his pre-SORNA conviction and pre-SORNA release from prison, he is unable to "initially
register" under 16913(b); section 16913(d) authorizes the Attorney General to specify the
"applicability of the requirements" of SORNA to "categories of sex offenders who are unable to
comply with subsection (b)"; because the Attorney General has not yet defined the obligations of
individuals like Cotton to "initially register," as required by 16913(d), Cotton does not have a
duty to register under SORNA. Def.’s Mot. at 13-14.
Cotton’s argument fails because, as a threshold matter, he does not fall within the
category of sex offenders "unable" to "initially register" described in section 16913(b). That
section applies to sex offenders who do not currently have any registration requirement: sex
offenders currently in prison or yet to be sentenced. See id. In contrast, Cotton is a sex offender
with a current registration obligation who must "register, and keep [his] registration current"
under state and federal law, covered by the registration requirements described under sections
16913(a) and (c). See May, 535 F.3d at 919. "A sex offender is able to register under SORNA if
he is able to register by means of an existing state registration facility." Gould, 568 F.3d at 466;
see 73 Fed. Reg. at 38063 ("Jurisdictions are specifically required to register such sex offenders
29
if they remain in the [state or other jurisdiction’s] system as prisoners, supervisees, or
registrants."). Hence, Cotton is "able" – indeed, he has a duty -- to register and keep his
registration current under D.C. law, and he is therefore "able" to register under SORNA.
II. Constitutional Arguments
a. Non-Delegation
Cotton argues that Congress improperly delegated its legislative authority by allowing the
Attorney General to determine the retroactive application of SORNA. Derived from Article I,
Section I of the Constitution -- which states that "[a]ll legislative powers herein granted shall be
vested in a Congress of the United States which shall consist of a Senate and House of
Representatives," U.S. Const. art. I, § 1 -- "[t]he non-delegation doctrine is based on the principle
of preserving the separation of powers between the coordinate branches of government."
Ambert, 561 F.3d at 1212. "[T]he doctrine holds that 'Congress manifestly is not permitted to
abdicate or to transfer to others the essential legislative functions with which it is
[constitutionally] vested.'" Id. at 1213 (quoting Panama Ref. Co. v. Ryan, 293 U.S. 388, 421
(1935)).
The Supreme Court established the test for determining the constitutionality of a
delegation of authority by Congress to another branch of government in J.W. Hampton, Jr. & Co.
v. United States, 276 U.S. 394 (1928). Congress may delegate authority to the executive to
promulgate rules and create law only when Congress provides an "intelligible principle" to guide
the delegated party. See 276 U.S. at 409. A statute will survive a non-delegation challenge and
be "constitutionally sufficient if Congress clearly delineates the general policy, the public agency
30
which is to apply it, and the boundaries of this delegated authority." American Power & Light
Co. v. SEC, 329 U.S. 90, 105 (1946); see also Mistretta v. United States, 488 U.S. 361, 372-73
(1989). The intelligible principle can be broad. See, e.g., Whitman v. American Trucking
Ass'ns, 531 U.S. 457, 475-76 (2001) (upholding against a non-delegation challenge a statute that
granted the EPA broad discretion to set national ambient air quality standards at levels "requisite
to protect the public health"); Yakus v. United States, 321 U.S. 414, 420 (1944) (upholding a
delegation to fix commodity prices that are "generally fair and equitable and will effectuate the
purposes of this Act").
Defendant argues that Congress failed to articulate any policy to guide the Attorney
General on SORNA’s retroactivity. Def.’s Mot. at 16. In granting the Attorney General the "sole
discretion" to determine who should be subject to SORNA, Cotton contends, "Congress handed
the Attorney General the power of legislating the breadth of the Act." Id. To the contrary,
Congress’s delegation was "comfortably within the scope of discretion permitted by [Supreme
Court] precedent." Ambert, 561 F.3d at 1213. SORNA’s statement of purpose, to "establish[] a
comprehensive national system" of sex offender registration to protect the public from sex
offenders and offenders against children," 42 U.S.C. § 16901, provides an intelligible principle to
guide the Attorney General in exercising his discretion. See United States v. Whaley, 577 F.3d
254, 264 (5th Cir. 2009); Ambert, 561 F.3d at 1213-14. "By setting forth the broad policy goal
of protecting the public and seeking a 'comprehensive' national registry, Congress has suggested
that the Attorney General should require pre-2006 sexual offenders to register to the extent that
he determines it would contribute to the protection of the public and the comprehensiveness of a
national sex offender registry." Ambert, 561 F.3d at 1214.
31
Cotton also overstates the authority Congress delegated to the Attorney General. Far
from "legislating the breadth of the Act," as Cotton contends, the authority delegated to the
Attorney General is quite narrow. Whaley, 577 F.3d at 264; Ambert, 561 F.3d at 1214. Indeed,
"Congress defined the crimes which necessitate registration (42 U.S.C. § 16911); where the
offender must register (42 U.S.C. § 16913(a)); the time period for registration (42 U.S.C. §
16913(b)); the method of registration (42 U.S.C. § 16913(b),(c)); the nature of information that
registrants must provide (42 U.S.C. § 16914(a)(1)-(7)); the elements of the new federal crime (18
U.S.C. § 2250(a)); and the penalty for violation (18 U.S.C. § 2250(a))." Ambert, 561 F.3d at
1214. Congress delegated to the attorney general only "the discretion to determine whether this
statute and all of its attendant requirements articulated by the legislature apply to a particular,
capped class of offenders - i.e. those convicted prior to July 27, 2006." Id. at 1214. "[S]ince
1935, the Supreme Court has not struck down a single statute as an impermissible delegation of
legislative power." Id. at 1213. This Court concludes that SORNA should not be the first.
Congress’s delegation to the Attorney General to determine the retroactive applicability of
SORNA is well within the limits of permissible delegation. Hence, Cotton’s non-delegation
challenge fails.
b. Ex Post Facto Clause
Cotton argues that SORNA violates the Ex Post Facto Clause, U.S. Const. art. I, § 9, cl.
3, which prohibits Congress from enacting any law which "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, 28-31 (1981); see Collins v. Youngblood, 497
U.S. 37, 41 (1990)("[T]he constitutional prohibition on ex post facto laws applies only to penal
32
statutes which disadvantage the offender affected by them."). Cotton alleges that SORNA
imposes an enhanced penalty that did not exist at the time he pled guilty to and was convicted of
a sex offense in 1997. Def.’s Mot. at 21. And Cotton contends that, despite SORNA’s stated
intent as a civil and nonpunitive regime, the law is so punitive in its purpose and effects that it
nonetheless violates the Ex Post Facto Clause. See id. at 21-22.
In Smith v. Doe, 538 U.S. 84 (2003), the Supreme Court ruled that Alaska’s sex offender
registration law did not constitute retroactive punishment under the Ex Post Facto Clause. The
Smith Court detailed the framework for the ex post facto inquiry for retrospective laws. See 538
U.S. at 92-96. First, the Court must "ascertain whether the legislature meant the statute to
establish 'civil' proceedings" Id. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361 (1997)).
If the legislature's intent was to "impose punishment," the statute is unconstitutional, but if the
legislature's intent "was to enact a regulatory scheme that is civil and nonpunitive," the court then
must further examine "whether the statutory scheme is 'so punitive either in purpose or effect as
to negate [the State's] intention' to deem it 'civil.'" Id. (quoting United States v. Ward, 448 U.S.
242, 248-249 (1980)). There must be "'the clearest proof'. . . to override legislative intent and
transform what has been denominated a civil remedy into a criminal penalty." Id. (quoting
Hudson v. United States, 522 U.S. 93, 100 (1997)).
Whether a statutory scheme is civil or criminal "is first of all a question of statutory
construction." Id. (quoting Hendricks, 521 U.S. at 361.) Therefore, the Smith Court considered
the text and structure of the Alaska Act. See id. at 92-93. The Alaska legislature's expressed
intent in the statutory text was to "protect[] the public from sex offenders" and "[t]he legislature
further determined that 'release of certain information about sex offenders to the general public
33
will assist in protecting the public safety.'" Id. at 93 (citation omitted). The respondents in
Smith, who challenged the constitutionality of the Act and asserted that its purpose was punitive,
pointed out that the goal of "public safety" is "one of the purposes of criminal administration."
Id. at 93. The Court disagreed, and explained that "where a legislative restriction 'is an incident
of the States' power to protect the health and safety of its citizens,' it will be considered 'as
evidencing an intent to exercise that regulatory power, and not a purpose to add to the
punishment.'" Id. at 93-94 (quoting Flemming v. Nestor, 363 U.S. 603, 616 (1960)).
Furthermore, "even if the objective of the Act is consistent with the purposes of the Alaska
criminal justice system, the State's pursuit of it in a regulatory scheme does not make the object
punitive." Id. at 94.
Cotton contends that, unlike the statute in Smith, SORNA's statutory scheme "indicat[es]
. . . Congress’ intent to punish sex offenders, regardless of their risk to public safety" because
Congress "made no finding that sex offenders have a high risk of re-offense." See Def.’s Mot. at
24-25. Cotton also points out that SORNA vests the authority to promulgate regulations with the
Attorney General, whose main responsibility is enforcing criminal laws. Id. at 25. But these
differences cannot counter Congress’s stated non-punitive intent. As in Smith, the legislature's
expressed intent in SORNA is public safety, "to protect the public from sex offenders and
offenders against children," 42 U.S.C. § 16901, and any criminal components, including the role
of the Attorney General or the criminal penalty in section 2250, are parts of a larger regulatory
scheme. See Carr, 130 S. Ct. at 2240. Indeed, "[s]ection 2250 is not a stand-alone response to
the problem of missing sex offenders; it is embedded in a broader statutory scheme enacted to
address the deficiencies in prior law that had enabled sex offenders to slip through the cracks."
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Id. Simply "[i]nvoking the criminal process in aid of a statutory regime does not render the
statutory scheme itself punitive." Smith, 538 U.S. at 96. Hence, because Congress’s stated
intent is non-punitive, Cotton may only prevail if SORNA’s statutory scheme is "'so punitive
either in purpose or effect as to negate [the State's] intention' to deem it 'civil.'" Id. at 92(citations omitted).
To analyze the effects of Alaska’s sex offender registration statute, the Smith Court
referred to the seven factors noted in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69
(1963), as "useful guideposts." See 538 U.S. at 97. The Mendoza-Martinez factors most
relevant to the Court’s analysis were "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. The Smith Court ruled
that each factor supported its decision that Alaska’s sex offender registration statute did not
violate the Ex Post Facto Clause. Id. at 97-105. Indeed, "[o]ur system does not treat
dissemination of truthful information in furtherance of a legitimate government objective as
punishment." Id. at 98. And "[a]lthough the public availability of the information may have a
lasting and painful impact on the convicted sex offender, these consequences flow not from the
Act’s registration and dissemination provisions, but from the fact of conviction, already a matter
of public record." Id. at 101. Finally, the "'most significant' factor" in a court’s "determination
that the statute’s effects are not punitive" is "[t]he Act’s rational connection to a nonpunitive
purpose." Id. at 102. The Smith Court ruled that the sex offender registration statue was
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rationally connected to its stated purpose, "'public safety, which is advanced by alerting the
public to the risk of sex offenders in their communit[y].'" Id. at 103 (citations omitted).
Attempting to distinguish Smith, Cotton highlights SORNA’s criminal penalty of up to
ten years for a single violation and registration requirements that can include multiple in-person
reports per year. See Def.’s Mot. at 27-28. SORNA’s penalty provision and reporting
requirements may be more onerous than the Alaska statute at issue in Smith, but these
differences cannot establish by "clearest proof" that SORNA's overall regulatory scheme is
punitive. See Smith, 538 U.S. at 92. And on the "most significant" factor -- "the Act’s rational
connection to a nonpunitive pupose" -- SORNA is on all fours with the Alaska statute, with a
stated purpose of "public safety." Id. 538 U.S. at 103. Cotton maintains that SORNA’s
requirements are excessive, but this Court is not to engage in "an exercise in determining whether
the legislature has made the best choice possible to address the problem it seeks to remedy." See
id. at 105. "The question is whether the regulatory means chosen are reasonable in light of the
nonpunitive objective." Id. at 105. Here, SORNA meets this standard and Cotton cannot by
"clearest proof" override the stated intent of Congress. His ex post facto claim therefore fails.1
c. Due Process Clause
Cotton asserts that the government’s application of SORNA to him violates the Due
Process Clause because he did not have actual notice of SORNA’s requirements and the conduct
criminalized by SORNA was "wholly passive" -- the "mere failure to register." See Lambert v.
1
Some courts have addressed ex post facto issues raised under SORNA by focusing on the conduct required to
violate SORNA. These courts have ruled that, as a threshold matter, section 2250 is not “retroactive” because it
punishes an individual, not for the sexual offense committed prior to the enactment of SORNA, but for traveling in
interstate commerce and failing to register. See, e.g., Gould, 568 F.3d at 466; United States v. LeTourneau, 534 F.
Supp. 2d 718, 721 (S.D. Tex. 2008) (citing cases). The government does not argue, and this Court need not address,
whether SORNA’s enforcement scheme is retroactive because -- even if it is retroactive -- it does not violate the Ex
Post Facto Clause under Smith.
36
California, 355 U.S. 225, 228 (1957). In Lambert, the Court held that a statute requiring a felon
to register with the City of Los Angeles without notice was inconsistent with due process. Id.The Court reasoned that it was unconstitutional to punish Lambert for a crime of omission
because her obligation to register was based only on her status as a felon, and she was unaware of
the registration requirements. Id. Cotton argues that, like Lambert, he did not receive notice
regarding his obligation to register under SORNA. Def.’s Mot. at 29. Furthermore, Cotton
contends, the enforcement provision of SORNA requires that a defendant "knowingly" fail to
register to violate SORNA. See 18 U.S.C. § 2250.
Lambert is inapposite to the instant case. "Unlike an isolated city ordinance that requires
all members of the broad class of all felons to register, SORNA instead criminalizes the failure to
register of a much more narrowly targeted class of persons in a context where sex-offender
registration has been the law for years." Shenandoah, 595 F.3d at 160. Sex offenders with
current registration requirements, like Cotton, have notice of state registration requirements;
therefore, they are not passive participants unaware of the illegality of failing to register. See id.
Cotton had an affirmative duty to register under state law; indeed, upon his release from prison,
he signed a notice explaining his duty to register. See Gov’t’s Opp. at 1-2.
Failure to register under SORNA does not fit into the narrow exception under Lambert
that "ignorance of the law" excuses criminal activity. See Lambert, 355 U.S. at 228; Cheek v.
United States, 498 U.S. 192, 199 (1991) (noting that as a general rule, ignorance of the law does
not provide a defense). Courts have consistently held that a defendant's knowledge of his or her
duty to register as a sex offender pursuant to state law satisfies the knowledge requirement under
SORNA. See, e.g., May, 535 F.3d at 921 (holding that notice of the duty to register under state
37
law provides notice of the duty to register under SORNA); Hinckley, 550 F.3d at 938 (same);
United States v. Shenandoah, 572 F. Supp. 2d 566, 580 (M.D. Pa. 2008) (citing cases), aff'd, 595
F.3d 151 (3rd Cir. 2010). This Court agrees. Hence, Cotton’s due process argument is rejected.
d. Commerce Clause
Lastly, Cotton argues that the penalty provision of SORNA, 18 U.S.C. § 2250, exceeds
Congress's authority under the Commerce Clause. The Commerce Clause of the U.S.
Constitution gives Congress the power “[t]o regulate commerce with foreign nations, and
among the several states, and with the Indian tribes.” U.S. Const. art. I, § 8, cl. 3. The Supreme
Court has identified three general categories of activity that Congress may regulate under the
Commerce Clause:
First, Congress may regulate the use of the channels of interstate commerce.
Second, Congress is empowered to regulate and protect the instrumentalities of
interstate commerce, or persons or things in interstate commerce, even though the
threat may come only from intrastate activities. Finally, Congress' commerce
authority includes the power to regulate those activities having a substantial
relation to interstate commerce, i.e., those activities that substantially affect
interstate commerce.
United States v. Lopez, 514 U.S. 549, 558-59 (1995) (citations omitted); see also Gonzales v.
Raich, 545 U.S. 1, 16-17 (2005); United States v. Morrison, 529 U.S. 598, 608-09 (2000).
Cotton contends that the enforcement provision of SORNA cannot be justified under the
first two Lopez prongs because it does not regulate the channels of interstate commerce or
concern the regulation of persons or things in interstate commerce. Def.’s Mot. at 29-30.
Therefore, the argument goes, it must be evaluated under the third Lopez prong, which permits
only the regulation of "those activities that substantially affect interstate commerce." Lopez, 514
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U.S. at 558. Cotton asserts that a sex offender registry is akin to regulation of domestic violence,
which the Supreme Court has ruled lacks a substantial relation to interstate commerce. See
Morrison, 529 U.S. at 612-13 ("Gender-motivated crimes of violence are not, in any sense of the
phrase, economic activity.").
To the contrary, section 2250 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. Congress may forbid or punish the use of channels of interstate commerce "to
promote immorality, dishonesty, or the spread of any evil or harm to the people of other states
from the state of origin." Brooks v. United States, 267 U.S. 432, 436 (1925); see Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964) ("[T]he authority of Congress to
keep the channels of interstate commerce free from immoral and injurious uses has been
frequently sustained, and is no longer open to question."). "Through § 2250, Congress has
forbidden sex offenders from using the channels of interstate commerce to evade their
registration requirements." Whaley, 577 F.3d at 258. "[E]ven if [the court] were to assume that
the harms and targeted illegal conduct were purely local in nature, the use of the channels and
instrumentalities of interstate commerce is necessarily part of the commission of the targeted
offense under 18 U.S.C. § 2250." Ambert, 561 F.3d at 1211. This Court agrees with the
several Circuits that have ruled “that § 2250 is a legitimate exercise of congressional Commerce
Clause authority.” United States v. Guzman, 591 F.3d 83, 90 (2nd Cir. 2010), cert. denied, 130
S. Ct. 3487 (2010); accord United States v. George, 625 F.3d 1124, 1129-30 (9th Cir. 2010);
Whaley, 577 F.3d at 258; Gould, 586 F.3d at 470-72; Ambert, 561 F.3d at 1210; Dixon, 551
F.3d at 583-84; Hinckley, 550 F.3d at 940; May, 535 F.3d at 921-22.
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To the extent that Cotton also suggests that the registration scheme in § 16913 violates
the Commerce Clause, this Court disagrees. Section 16913 "may regulate purely intrastate
activities by requiring sex offenders to register in the first place and to keep current in their
registrations[;] [h]owever, § 16913 does not exist in a vacuum." Guzman, 591 F.3d at 90. It
must be analyzed in connection with § 2250, which also was enacted as part of the Adam Walsh
Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. See Whaley, 577
F.3d at 259. SORNA's goal -- to "establish[] a comprehensive national system for the
registration of [sex] offenders," § 16901 -- "focuses on the problem of sex offenders escaping
their registration requirements through interstate travel [] rather than on requiring sex offender
registration generally." Id. Indeed, at the time that SORNA was enacted in 2006, every state and
the District of Columbia already had enacted a sex offender registration law. Id.; see also
Guzman, 591 F.3d at 91. Congress enacted SORNA to prevent sex offenders from evading “all
registration requirements just by moving to another state.” Guzman, 591 F.3d at 91.
Courts have thus upheld the registration provision of SORNA under the Necessary and
Proper Clause of the Constitution, U.S. Const., art. I, § 8, cl. 18. See, e.g., Guzman, 591 F.3d at
91; United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009) ("Section 16913 is constitutional
under Congress's authority to use the necessary and proper means to further its commerce clause
power because it 'is a necessary part of a more general regulation of interstate commerce.'").
"Where necessary to make a regulation of interstate commerce effective, Congress may regulate
even those intrastate activities that do not themselves substantially affect interstate commerce."
Raich, 545 U.S. at 35 (Scalia, J., concurring). "Requiring sex offenders to update their
registrations due to intrastate changes of address or employment status is a perfectly logical way
40
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. And "to the extent that § 16913 regulates solely intrastate
activity, its means 'are "reasonably adapted" to the attainment of a legitimate end under the
commerce power,' and therefore proper." Id. (citations omitted); see also Whaley, 577 F.3d at
260-61; Ambert, 561 F .3d at 1212; Howell, 552 F.3d at 714-15. Hence, Cotton’s Commerce
Clause challenge fails.
CONCLUSION
For the reasons explained above, the Court will deny Cotton’s motion to dismiss his
indictment. A separate Order accompanies this memorandum opinion.
/s/
JOHN D. BATES
United States District Judge
Dated: January 20, 2011
41