United States v. Cotton
2011 U.S. Dist. LEXIS 5470
D.D.C.2011Background
- Cotton was convicted in 1997 in North Carolina of indecent liberties with a minor and ordered to register as a sex offender for ten years after release.
- Upon release in October 1998, Cotton signed a DC notice outlining his duty to update his address with the sheriff.
- In June 2010, a superseding one-count indictment charged Cotton with failure to register under SORNA in the District of Columbia and elsewhere for activity circa 2007–2008.
- Cotton moved to dismiss on eight grounds, including SORNA's applicability, APA issues, and constitutional challenges.
- The court held that SORNA's effective date for pre-SORNA offenders like Cotton is August 1, 2008, and declined to dismiss the indictment on APA grounds at this stage.
- The court rejected Cotton's other challenges and denied the motion to dismiss as to the remaining issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cotton had a duty to register under DC law | Cotton contends no DC duty to register. | Cotton argues DC duty existed only if applicable to him under DC law. | Cotton has a DC registration duty; NC conviction qualifies as a DC registration offense. |
| When pre-SORNA offenders become subject to SORNA | SORNA applies retroactively from enactment or interim rule date. | The Attorney General's rule and APA procedures govern retroactivity. | SORNA did not apply to pre-SORNA offenders until August 1, 2008; indictment covers period after that date but not before. |
| Whether DC's lack of SORNA implementation forecloses applicability to Cotton | State implementation status determines applicability to individuals. | Individual duty to register is independent of a jurisdiction's implementation. | Individual duty to register exists irrespective of DC implementation status. |
| APA good cause for interim rule and retroactivity | Interim rule lacked proper APA notice and comment. | The government had good cause to publish retroactivity provision immediately. | Interim rule invalid under the APA; however, indictment not dismissed because final guidelines could have retroactive effect. |
Key Cases Cited
- Carr v. United States, 130 S. Ct. 2229 (2010) (discusses sequencing of SORNA elements and pre-SORNA applicability)
- United States v. Utesch, 596 F.3d 302 (6th Cir. 2010) (SORNA retroactivity timeline and final guidelines)
- United States v. Shenandoah, 595 F.3d 151 (3d Cir. 2010) (APA and retroactivity considerations in SORNA context)
- United States v. Hinckley, 550 F.3d 926 (10th Cir. 2008) (interpretation of § 16913(d) and pre-SORNA offender applicability)
- United States v. May, 535 F.3d 912 (8th Cir. 2008) (statutory interpretation of § 16913(d) and pre-SORNA offenders)
- United States v. Gould, 568 F.3d 459 (4th Cir. 2009) (APA good cause and retroactivity discussion)
- DiTomasso v. United States, 621 F.3d 17 (1st Cir. 2010) (differing interpretations of § 16913(d))