804 F.3d 140
2d Cir.2015Background
- Herman Gundy was convicted in Maryland (2005) of a sex offense and later served a federal sentence for violating supervised release; he was transferred to federal custody and in 2012 furloughed from a Pennsylvania prison to a Bronx halfway house and then released to a Bronx residence.
- A 2013 federal indictment charged Gundy under 18 U.S.C. § 2250 for (1) being “required to register” under SORNA, (2) traveling interstate (PA to NY), and (3) knowingly failing to register or update his registration.
- The District Court dismissed the indictment, holding Gundy was not “required to register” until shortly before his release in New York (after the alleged interstate travel), so § 2250’s sequential elements could not be satisfied.
- The government appealed, arguing SORNA’s registration obligations attached when the Attorney General’s retroactivity guidelines took effect (August 1, 2008) and thus predated Gundy’s 2012 travel.
- The Second Circuit reversed, holding a person becomes “required to register” when SORNA’s requirements apply to them (here, at the latest August 1, 2008) and § 16913(b) sets registration deadlines rather than the point at which the obligation attaches.
Issues
| Issue | Plaintiff's Argument (Gov’t) | Defendant's Argument (Gundy) | Held |
|---|---|---|---|
| Whether a person is “required to register” under SORNA before the initial-registration deadline | Registration obligation attaches when SORNA becomes applicable to the person (here by AG guidelines effective Aug. 1, 2008) | A person is not "required to register" until the initial-registration deadline in §16913(b) (shortly before release) | Held for government: requirement attaches when SORNA applies, not only at the registration deadline |
| Whether §16913(b) defines when obligation to register begins | §16913(b) sets deadlines for initial registration, not the attachment of the duty to register | §16913(b)’s timing language shows the duty to register does not exist until the deadline approaches | Held: §16913(b) sets timing for initial registration, separate from when SORNA applies |
| Whether Carr v. United States precludes the government’s interpretation | Government: Carr requires the elements occur after SORNA effective date but does not mean “required to register” equals mere status as a convicted sex offender | Gundy: Carr shows “required to register” must mean something more limited than being subject to SORNA earlier | Held: Carr is consistent — being “required to register” means being subject to SORNA, which occurs when SORNA is made applicable to the offender |
| Whether interstate travel occurred while in federal custody negates §2250 travel element | Government: travel from PA to NY occurred after offender was already required to register | Gundy: because he remained in BOP custody during the furlough/transfer, his movement was not ‘‘interstate travel’’ under §2250(a)(2)(B) | Court did not decide; remanded for District Court to consider this issue in the first instance |
Key Cases Cited
- Carr v. United States, 560 U.S. 438 (Sup. Ct.) (three elements of §2250 must occur after SORNA applies)
- United States v. Lott, 750 F.3d 214 (2d Cir. 2014) (SORNA retroactivity effective upon Attorney General’s final guidelines)
- United States v. Hester, 589 F.3d 86 (2d Cir. 2009) (duty to register under SORNA not dependent on actual notice or state implementation)
- United States v. Guzman, 591 F.3d 83 (2d Cir. 2010) (§16913 supplies the substantive registration obligations underpinning §2250)
- United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998) (de novo review of legal questions)