954 F.3d 184
4th Cir.2020Background
- Edward Wass was convicted of two Florida sex offenses in 1995; he completed probation in 2014.
- Congress enacted SORNA in 2006, making failure to register a federal crime under 18 U.S.C. § 2250(a) and authorizing the Attorney General to specify SORNA's applicability to pre-enactment convictions under 34 U.S.C. § 20913(d).
- The Attorney General issued regulations (finalized 2011) applying SORNA to all pre-SORNA offenders as soon as feasible.
- A 2018 indictment charged Wass under § 2250(a) for interstate travel and failing to register between Sept. 2016 and Feb. 2018; the indictment did not identify specific travel locations.
- The district court dismissed the indictment, holding SORNA unconstitutional under the nondelegation doctrine and the ex post facto clause; the Government appealed.
- The Fourth Circuit reversed, holding that binding precedent forecloses Wass’s nondelegation and ex post facto arguments and remanding for further proceedings.
Issues
| Issue | Government's Argument | Wass's Argument | Held |
|---|---|---|---|
| Whether § 20913(d) unlawfully delegates to the Attorney General the decision to apply SORNA to pre-SORNA offenders (nondelegation) | § 20913(d) lawfully permits the AG to address feasibility and implementation; precedent upholds the delegation | § 20913(d) improperly punts the core policy decision to the AG and lacks an intelligible principle | Reversed district court; Gundy and Reynolds control — the AG's authority is limited to feasibility and does not violate nondelegation |
| Whether applying § 2250(a) to pre-SORNA offenders violates the Ex Post Facto Clause because it punishes past crimes | § 2250(a) punishes post-enactment conduct (being required to register, subsequent interstate travel, and failure to register) — not the original offense | Applying § 2250(a) retroactively punishes pre-SORNA conduct and thus violates ex post facto | Rejected Wass’s challenge; consistent with Gould and Carr: liability requires becoming subject to SORNA, then travel, then failure to register, so no ex post facto violation |
| Whether SORNA's registration requirements themselves are punitive (so their retroactive application violates ex post facto) | Congress intended a civil, regulatory scheme; Under Seal and Smith analysis show registration is nonpunitive in purpose and effect | The registration regime is so burdensome and stigmatizing that it is punitive and cannot be applied retroactively | Rejected Wass’s argument; Under Seal (applying Smith factors) controls — registration is nonpunitive, so ex post facto clause not violated |
| Whether the Court should invoke constitutional avoidance to limit SORNA's reach to pre-SORNA offenders | Statutory meaning is settled by precedent; avoidance canon inapplicable where meaning is clear | Court should interpret statute to avoid constitutional problems and not apply SORNA to pre-SORNA offenders | Rejected — precedent fixes statutory interpretation, so constitutional avoidance does not alter the outcome |
Key Cases Cited
- Gundy v. United States, 139 S. Ct. 2116 (2019) (plurality and concurrence sustain SORNA delegation to AG on narrowest grounds)
- Reynolds v. United States, 565 U.S. 432 (2012) (SORNA's registration requirements do not apply to pre-SORNA offenders until specified by the AG)
- Carr v. United States, 560 U.S. 438 (2010) (§ 2250 elements read sequentially; liability does not extend to pre-enactment travel)
- Smith v. Doe, 538 U.S. 84 (2003) (framework for determining whether a statutory scheme is punitive for ex post facto purposes)
- United States v. Gould, 568 F.3d 459 (4th Cir. 2009) (SORNA punishes post-enactment failure to register; ex post facto challenge rejected)
- United States v. Under Seal, 709 F.3d 257 (4th Cir. 2013) (applying Smith factors and holding SORNA registration nonpunitive)