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United States of America v. Larry Donnell Cotton

January 20, 2011

UNITED STATES OF AMERICA
v.
LARRY DONNELL COTTON DEFENDANT.



The opinion of the court was delivered by: John D. Bates United States District Judge

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 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.

(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 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")).

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 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.

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 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 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 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 ...


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