United States v. Clements
2011 U.S. App. LEXIS 17458
| 9th Cir. | 2011Background
- Clements was convicted in Oregon state court in 1998 of two counts of unlawful sexual penetration.
- SORNA was enacted in 2006, creating a national sex offender registration framework with retroactivity questions.
- An interim AG regulation in 2007 extended SORNA registration to pre-SORNA offenders, prompting appellate challenges.
- Clements was indicted in 2008 for failing to register under SORNA, challenging the validity of the interim regulation under the APA.
- The Ninth Circuit in Valverde held SORNA retroactivity for pre-SORNA offenders did not take effect until AG final regulation on August 1, 2008, rendering the interim rule invalid for retroactivity purposes.
- This panel remanded for dismissal of the indictment; Judge O'Scannlain dissented, urging a stay pending Supreme Court guidance in Reynolds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORNA retroactivity for pre-SORNA offenders requires AG action. | Clements relies on AG authority under 42 U.S.C. § 16913(d) to apply retroactively. | Interim rule invalid under APA; retroactivity depends on final regulation. | Retroactivity requires final rule; interim rule ineffective for retroactivity. |
| Whether the text of § 16913(d) forecloses retroactivity absent AG action. | AG discretion to specify retroactivity exists but is not mandatory. | Says the statute allows AG action; absent action, text may bar retroactivity. | Subsection (a) governs registration; (d) is permissive; retroactivity not guaranteed by (d). |
| Whether the interim rule’s APA noncompliance defeats retroactive application of SORNA. | Interim rule should be treated as valid retroactivity authority. | Interim rule void for lack of notice-and-comment; retroactivity invalid absent final rule. | Interim rule invalid; retroactivity does not attach until a final regulation supports it. |
| Whether SORNA’s pre-SORNA offenders are subject to registration before August 1, 2008. | Offenders like Clements become subject upon SORNA’s retroactive effect. | No retroactive application before AG final rule; pending Supreme Court guidance. | SORNA retroactivity did not apply before August 1, 2008. |
Key Cases Cited
- United States v. Begay, 622 F.3d 1187 (9th Cir. 2010) (limits retroactive penalties for pre-SORNA offenses)
- United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010) (AG interim rule invalid for APA noncompliance; retroactivity timing)
- Carr v. United States, 130 S. Ct. 2229 (2010) (statutory wording and temporal reach guide retroactivity questions)
- Hinckley v. United States, 550 F.3d 926 (10th Cir. 2008) (concurring view on comprehensive registry scope)
- Reynolds v. United States, 131 S. Ct. 1043 (2011) (SCOTUS consideration of retroactivity in pre-SORNA offenders)