United States v. Lott
2014 U.S. App. LEXIS 7730
| 2d Cir. | 2014Background
- Lott appeals a 63-month sentence after pleading guilty to failure to register as a sex offender under 18 U.S.C. § 2250(a).
- Lott argues the indictment should be dismissed because SORNA does not apply to pre-Act offenders until specified by the Attorney General.
- SORNA was enacted in 2006; Reynolds held retroactivity depends on AG specification; the Final Rule postdates Lott’s travel, so not applicable to his act.
- AG issued Interim Rule (2007), SMART Guidelines (2008), and Final Rule (2010); SMART Guidelines extended SORNA to pre-Act offenders, though Final Rule postdates the travel event.
- District court sentenced Lott with an eight-level enhancement under U.S.S.G. § 2A3.5(b)(1)(C) for a sex offense against a minor while in failure-to-register status; defense objected.
- Court held SORNA retroactivity valid as extended by SMART Guidelines; enhancement based on uncontested act qualifies as a sex offense under 42 U.S.C. § 16911(5).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| retroactivity of SORNA to pre-Act offenders | Lott: pre-Act offenders not covered unless AG specifies. | Lott: SMART Guidelines validly extended SORNA retroactively. | SMART Guidelines valid; retroactivity extended to pre-Act offenders. |
| validity of SMART Guidelines under APA notice and comment | Lott claims guidelines are interpretive and APA notice was insufficient. | Lott's claims rejected; guidelines are substantive and properly noticed. | SMART Guidelines valid as substantive rule with proper notice and comment. |
| application of eight-level sentencing enhancement under § 2A3.5(b)(1)(C) | Lott contends enhancement requires a conviction for sex offense. | Enhancement triggered by commission of a sex offense, not require conviction. | Enhancement upheld; uncontested sex offense against a minor while in failure-to-register status suffices. |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (Supreme Court 2012) (retroactivity depends on AG specification)
- United States v. Whitlow, 714 F.3d 41 (1st Cir. 2013) (notice and comment sufficiency for SMART Guidelines)
- United States v. Stevenson, 676 F.3d 557 (6th Cir. 2012) (interpret-and-implement authority under SORNA §112(b) includes §113(d))
- United States v. Guzman, 591 F.3d 83 (2d Cir. 2010) (SORNA constitutional as commerce power validly exercised)
- United States v. Robbins, 729 F.3d 131 (2d Cir. 2013) (application of SORNA to interstate travelers remains intact after NFIB)