United States v. Ross
2011 U.S. Dist. LEXIS 42042
D.D.C.2011Background
- Ross, a former DC high school teacher, was convicted in 1999 of misdemeanor sexual abuse of a 15-year-old student and sentenced to jail time with probation and a 10-year DC sex-offender registration requirement.
- He received a Certification of Sex Offender and Notice Order stating he is a sex offender, and later acknowledged ongoing duty to register on multiple occasions through DC’s system.
- Ross moved from DC to Ohio between 2009 and 2010 and allegedly did not notify DC or register in Ohio, while allegedly using false identifying information in Ohio to hide his status.
- On October 7, 2010, a DC grand jury returned a one-count indictment under SORNA for failure to register; Ross was arrested in Ohio on October 9, 2010.
- Ross moved to dismiss the indictment on eight grounds, including challenges to the validity of the AG’s interim regulation, retroactivity of SORNA, and various constitutional challenges.
- The court denied the motion, holding that SORNA applies retroactively to pre-enactment offenders via procedurally valid final SMART guidelines and that Ross had independent registration duties under DC law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of the interim regulation under APA | Ross asserts the interim regulation lacks proper APA notice. | Government contends good cause justified bypassing notice. | Interim rule invalid for some circuits; however, final SMART guidelines applicable here. |
| retroactive applicability of SORNA under final SMART guidelines | Ross argues final SMART guidelines do not retroactively apply to pre-SORNA offenders. | Government argues final SMART guidelines expressly apply retroactively to all offenders. | Final SMART guidelines properly authorize retroactive application to pre-SORNA offenders. |
| District of Columbia implementation linkage | Ross contends DC’s lack of full SORNA implementation negates retroactivity/obligation. | SRONA obligation is independent of DC's implementation; offender duty exists regardless. | Offender's duty to register exists even if DC has not implemented SORNA fully. |
| Initial registration under §16913(b) | Ross contends he was unable to initially register because his offense predated SORNA. | Ross was able to register via existing DC system and thus required to register under SORNA. | Ross was able to register; §16913(b) does not exempt him. |
| Constitutional challenges (non-delegation, ex post facto, due process, commerce) | Ross asserts SORNA’s retroactivity violates non-delegation, ex post facto, due process, and Commerce Clause. | Government argues Congress provided intelligible principles; retroactivity is civil and non-punitive. | Non-delegation, due process, ex post facto, and commerce challenges all rejected. |
Key Cases Cited
- Carr v. United States, 130 S. Ct. 2229 (Sup. Ct. 2010) (reads §2250 elements sequentially for SORNA offenses)
- U.S. v. Utesch, 596 F.3d 302 (6th Cir. 2010) (retroactivity framework and final SMART guidelines validity)
- U.S. v. Cotton, 760 F. Supp. 2d 116 (D.D.C. 2011) (affirms retroactive application via final SMART guidelines)
- U.S. v. Gould, 568 F.3d 459 (4th Cir. 2009) (separate duties of offenders and states under SORNA)
- U.S. v. May, 535 F.3d 912 (8th Cir. 2008) (knowledge of duty to register satisfies SORNA knowledge element)
- U.S. v. Hinckley, 550 F.3d 926 (10th Cir. 2008) (knowledge/due process considerations under SORNA)
- Smith v. Doe, 538 U.S. 84 (Sup. Ct. 2003) (ex post facto framework for determining punitive effect)
- U.S. v. Ambert, 561 F.3d 1202 (11th Cir. 2009) (permissible delegation of authority to AG under SORNA)
- Lambert v. California, 355 U.S. 225 (Sup. Ct. 1957) (due process notice for passive duty regimes)