767 F.3d 426
5th Cir.2014Background
- Francisco Torres, convicted in 1999 under the Uniform Code of Military Justice for sexual offenses, originally registered as a sex offender.
- SORNA was enacted July 27, 2006; Torres failed to update his SORNA-required registration for changes in employment between July 27, 2006 and May 7, 2008.
- Torres was charged under 18 U.S.C. § 2250(a) for failing to register/update as a sex offender required by SORNA.
- Reynolds v. United States (Supreme Court) held pre-enactment sex offenders are bound by SORNA only if the Attorney General specifies applicability in a "valid" rule, making the validity of the AG’s February 28, 2007 interim rule dispositive.
- The interim rule explicitly stated SORNA applied to pre-enactment sex offenders; circuits are split on whether that interim rule was valid.
- The Fifth Circuit panel concluded United States v. Johnson controls: the interim rule was effectively valid as applied to the defendant because any APA violations were harmless; therefore Torres’ conviction was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORNA applied to Torres during his period of noncompliance | Torres: SORNA did not apply to pre-enactment offenders until a valid AG regulation took effect, and that effective date was after his conduct ended | Government: The AG’s Feb. 28, 2007 interim rule validly made SORNA applicable to pre-enactment offenders, so Torres’ failure to update after that date violated §2250(a) | Court: SORNA applied to Torres as of Feb. 28, 2007; his noncompliance continued after that date, so conviction stands |
| Whether the AG’s interim rule was invalid due to APA defects | Torres: The interim rule violated the APA (no notice-and-comment; not published 30 days before effective date), rendering it invalid | Government: Even if APA violations occurred, they were harmless and did not render the rule invalid as applied | Court: Under Fifth Circuit precedent (Johnson), APA violations were harmless here; the interim rule is valid as applied to Torres |
| Whether upholding the interim rule here would create an Ex Post Facto problem | Torres: Applying SORNA retroactively to his conduct violates the Ex Post Facto Clause | Government: No ex post facto violation because SORNA applied once the AG validly specified applicability; Torres had a duty after Feb. 28, 2007 | Court: No Ex Post Facto violation — SORNA became effective for Torres on Feb. 28, 2007 |
| Whether this panel may depart from Johnson | Torres: Urge distinguishing Johnson’s APA harmlessness reasoning because this is framed as a constitutional claim | Government: Johnson controls; panel cannot overturn precedent | Court: Bound by Johnson; cannot overturn precedent and must follow its harmless-error conclusion |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (2012) (pre-enactment offenders must be covered by a "valid" AG rule to trigger SORNA duties)
- Johnson v. United States, 632 F.3d 912 (5th Cir. 2011) (held APA violations in AG’s interim rule were harmless as applied and upheld rule’s effect on defendant)
- United States v. Young, 585 F.3d 199 (5th Cir. 2009) (rejected other ex post facto challenges to SORNA)
- United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013) (concluded interim rule invalid)
- United States v. Gould, 568 F.3d 459 (4th Cir. 2009) (upheld interim rule)
- United States v. Dean, 604 F.3d 1275 (11th Cir. 2010) (upheld interim rule)
- United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010) (invalidated interim rule)
- United States v. Cain, 583 F.3d 408 (6th Cir. 2009) (invalidated interim rule)
- Whaley v. United States, 577 F.3d 254 (5th Cir. 2009) (precedent foreclosing certain SORNA challenges)
- Heth v. United States, 596 F.3d 255 (5th Cir. 2010) (precedent foreclosing certain SORNA challenges)