Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Morgan

United States District Court, District of Columbia

June 9, 2017

UNITED STATES OF AMERICA,
v.
CHARLES MORGAN, Defendant.

          MEMORANDUM OPINION

          ELLEN SEGAL HUVELLE United States District Judge.

         A nine-count indictment charges defendant Morgan with failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a) (Count One); kidnapping, in violation of 18 U.S.C. § 1201(a)(1), (g) (Count Two); transportation of a minor with intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(a) (Count Five); attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), (e) (Count Eight); three counts of commission of a felony offense by an individual required to register as a sex offender, in violation of 18 U.S.C. § 2260A (Counts Three, Six, and Nine); and two counts of commission of a crime of violence while failing to register as a sex offender, in violation of § 2250(d) (Counts Four and Seven). (Indictment, ECF No. 15.)[1] Defendant has moved to dismiss all of the registration-related counts (Counts One, Three, Four, Six, Seven, and Nine) based on the Administrative Procedure Act, the non-delegation doctrine, the Ex Post Facto Clause, and the Commerce Clause. (Def.'s Mot., ECF No. 22.) For the reasons described herein, the Court will deny defendant's motion.

         BACKGROUND

         According to the government, defendant was convicted of Rape while Armed in 1991 in the Superior Court for the District of Columbia. (Gov.'s Opp. at 1, ECF No. 29.) He was released from incarceration in 2009. (Id.) In the interim, in 2006, Congress passed the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq. SORNA requires sex offenders to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” Id. § 16913(a). It is a criminal offense for someone who is subject to the Act's registration requirements to travel in interstate commerce and then fail to update his registration as required. See 18 U.S.C. § 2250(a).

         When Congress passed SORNA, it directed that “[t]he Attorney General shall have the authority to specify the applicability of [SORNA] to sex offenders convicted before [its] enactment.” 42 U.S.C. § 16913(d). Thus, “the Act's registration requirements do not apply to pre-Act offenders until the Attorney General so specifies.” Reynolds v. United States, 565 U.S. 432, 445 (2012). On three different occasions, the Attorney General issued rules or guidelines stating that SORNA applies to pre-Act offenders. See United States v. Ross, 848 F.3d 1129, 1131-32 (D.C. Cir. 2017). These are a 2007 Interim Rule, 2008 Final Guidelines, and a 2010 Final Rule. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007) (“Interim Rule”); The National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38030, 38035-36 (July 2, 2008) (“Final Guidelines”); Applicability of the Sex Offender Registration and Notification Act, 75 Fed. Reg. 81849, 81850 (Dec. 29, 2010) (codified at 28 C.F.R. pt. 72) (“Final Rule”).

         The indictment charges defendant with failure to register, crimes of violence while failing to register, and felonies while required to register, all based on his alleged conduct between 2015 and 2016. (Indictment at 1-5.) According to the indictment, defendant was subject to registration requirements as a result of his 1991 conviction for Rape while Armed. (Id. at 2.) Defendant has moved to dismiss all counts that have a registration requirement as an element. (Def.'s Mot. at 1.) First, he argues that the Attorney General's attempts to specify the application of SORNA to pre-Act offenders violated the Administrative Procedure Act. (Id. at 4-7.) Second, he contends that Congress violated the non-delegation doctrine when it gave the Attorney General the authority to make SORNA retroactive. (Id. at 7-9.) Third, he maintains that the Ex Post Facto Clause prohibits applying SORNA's registration requirements and criminal penalties to offenders who committed their sex offenses before the enactment of SORNA. (Id. at 9-17.) Finally, he claims that criminalizing failure to register exceeded Congress's powers under the Commerce Clause. (Id. at 17-19.)

         ANALYSIS

         I. ADMINISTRATIVE PROCEDURE ACT

         Relying on the D.C. Circuit's recent opinion in Ross, 848 F.3d 1129, defendant asserts that none of the Attorney General's attempts to apply SORNA to pre-Act offenders complied with the Administrative Procedure Act (APA). (Def.'s Mot. at 4-7.) This Court disagrees. Ross invalidated only the 2007 Interim Rule and the 2008 Final Guidelines. The reasoning in Ross does not extend to the 2010 Final Rule, which predated the conduct charged in this case.

         In Ross, the D.C. Circuit held that the government could not prosecute a defendant with a pre-SORNA sex offense conviction for his failure to register in 2009, because neither the 2007 Interim Rule nor the 2008 Final Guidelines had satisfied the requirements of the APA. 848 F.3d at 1131-32. The adequacy of the 2010 Final Rule was not before the Court in Ross, because that rule could not support a prosecution for failure to register in 2009. See Id. Beginning with the 2007 Interim Rule, the Court concluded that it was inadequate because the Attorney General “issued the rule without providing for advance notice or inviting comment, as required by the APA.” Id. at 1132. Turning to the 2008 Final Guidelines, the Court held that it could not uphold them as a discretionary decision by the Attorney General because he “disclaimed any authority to decide for himself whether SORNA applied to pre-enactment offenders.” Id. at 1134. Rather, the Attorney General stated that SORNA had “applied since [its enactment] to all sex offenders, including those whose convictions predate SORNA's enactment, ” and he “could not” depart from Congress's legislative judgment that the requirements were justified. Id. (quoting Final Guidelines, 73 Fed. Reg. at 38035, 38046).

         Contrary to defendant's argument, the reason for invalidating the 2008 Final Guidelines does not apply to the 2010 Final Rule. In dicta, the Ross Court rejected the same argument that defendant now makes, explaining that the Final Rule “did recognize [the Attorney General's] authority, albeit reluctantly and contingently: ‘Congress at the very least placed it within the Attorney General's discretion to apply SORNA's requirements to [pre-SORNA offenders] if he determines (as he has) that the public benefits of doing so outweigh any adverse effects.' Final Rule, 75 Fed. Reg. at 81850/3.” Ross, 848 F.3d at 1137. When the Attorney General issued the Final Rule, he provided two alternative grounds for the regulation. He stated that the Final Rule's application of SORNA's requirements to sex offenders with pre-SORNA convictions had “a sound legal basis, regardless of whether (i) SORNA's requirements apply of their own force to sex offenders with pre-SORNA convictions, and the interim rule merely confirmed that fact, or (ii) the applicability of SORNA's requirements to sex offenders with pre-SORNA convictions depends on rulemaking by the Attorney General.” Final Rule, 75 Fed. Reg. at 81850-51. To support his judgment under the second scenario, he observed that “the interests opposing and supporting registration-any adverse effect or burden of SORNA's requirements on sex offenders weighed against the public safety interests furthered by those requirements-are much the same whether the class of sex offenders with pre-SORNA convictions or the class of sex offenders with post-SORNA convictions is considered.” Id. He concluded that he was “justified . . . in exercising his authority to ‘specify the applicability of the requirements of [SORNA] to sex offenders convicted before the enactment' of SORNA, 42 U.S.C. 16913(d) . . . .” Id. Thus, the Attorney General was clear that if he had discretion to determine the applicability of SORNA, he was exercising it to apply the requirements to pre-SORNA offenders. Because the 2010 Final Rule contains the Attorney General's discretionary judgment, it does not share the flaw in the 2008 Final Guidelines that caused the Ross Court to find the latter invalid under the APA.

         II. NON-DELEGATION DOCTRINE

         Next, defendant contends that Congress violated the non-delegation doctrine when it directed that “[t]he Attorney General shall have the authority to specify the applicability of [SORNA] to sex offenders convicted before [its] enactment, ” 42 U.S.C. § 16913(d), but “failed to articulate any policy to guide” that determination. (Def.'s Mot. at 8.) Applying the established intelligible-principle test, this Court will follow the other circuits, which have uniformly held that this delegation was permissible.

         Although the D.C. Circuit has not decided the non-delegation question, every other circuit has addressed it and has determined that it was constitutional for Congress to delegate the authority to the Attorney General to decide whether SORNA should apply to pre-Act offenders. Ross, 848 F.3d at 1131 (citing United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014), rev'd on other grounds, 136 S.Ct. 1113 (2016); United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014); United States v. Cooper, 750 F.3d 263, 271-72 (3d Cir. 2014); United States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir. 2013); United States v. Kuehl, 706 F.3d 917, 920 (8th Cir. 2013); United States v. Sampsell, 541 Fed. App'x 258, 259-60 (4th Cir. 2013); United States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-93 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 262-64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212-14 (11th Cir. 2009)). In this district, Judge Bates has also rejected a defendant's non-delegation challenge. United States v. Cotton, 760 F.Supp.2d 116, 135 (D.D.C. 2011).

         This Court agrees that the SORNA delegation to the Attorney General satisfies the test that the Supreme Court has set out to evaluate congressional delegations. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.'” Mistretta v. United States, 488 U.S. 361, 372 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). The Supreme Court “has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'” Id. at 372-73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)). In applying this test, the Court has been ‚Äúdriven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.