United States v. Valverde
2010 U.S. App. LEXIS 26211
| 9th Cir. | 2010Background
- Valverde, convicted in 2002 in California for multiple counts of sexual abuse of a minor and child pornography, was released in January 2008 with orders to register as a sex offender.
- Valverde did not register in California or Missouri and traveled interstate to Missouri after release, leading to charges under SORNA (42 U.S.C. § 16913) and 18 U.S.C. § 2250 for failing to register.
- The district court dismissed the indictment in 2009, ruling that SORNA’s registration and penalty provisions were invalid exercises of Congress’s Commerce Clause power under Lopez and Morrison.
- The Government appealed; Valverde urged retroactive application of SORNA as of January 2008, arguing no valid rule made it applicable to him.
- SORNA authorizes AG to determine retroactivity for pre-enactment offenders; interim rule 28 C.F.R. § 72.3 (Feb. 28, 2007) applied retroactively but bypassed APA notice-and-comment requirements under a good-cause exception.
- The panel held that the Commerce Clause argument was resolved by United States v. George, but retroactivity depended on APA compliance; the interim rule failed APA procedures, delaying retroactivity until August 1, 2008.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SORNA retroactivity is valid under Commerce Clause | Valverde argues SORNA exceeds Commerce Clause power as applied to pre-enactment offenders. | Valverde, relying on Lopez and Morrison, contends retroactivity unconstitutionally expands federal reach. | Commerce Clause challenge rejected; retroactivity resolved by APA compliance analysis (George controls). |
| When SORNA applies retroactively to pre-enactment offenders | AG's retroactivity should apply as of January 2008, consistent with enforcement when indictment occurred. | Retroactivity depends on APA-compliant rulemaking by the AG; until properly promulgated, retroactivity did not apply. | Retroactivity becomes effective only after APA-compliant rulemaking; interim rule invalid for retroactivity. |
| Validity of the February 28, 2007 interim rule under the APA | Interim rule should be treated as valid despite APA bypass because it served public safety and clarity. | Interim rule lacked notice-and-comment and good-cause justification; not valid for retroactivity. | Interim rule violated APA notice-and-comment; not valid to render SORNA retroactive for Valverde. |
| Effective date of retroactive SORNA application | Interim rule's retroactivity should apply immediately to pre-enactment offenders. | Final SMART guidelines (July 2, 2008) after APA response set the proper effective date. | Retroactivity became effective August 1, 2008, 30 days after final SMART guidelines and agency response. |
Key Cases Cited
- United States v. George, 625 F.3d 1124 (9th Cir.2010) (upheld SORNA as valid under Commerce Clause; controls retroactivity analysis)
- United States v. Lopez, 514 U.S. 549 (Supreme Court 1995) (limited federal power under commerce clause)
- United States v. Morrison, 529 U.S. 598 (Supreme Court 2000) (limits on federal regulation of non-economic activity)
- United States v. Dean, 604 F.3d 1275 (11th Cir.2010) (good cause exception to APA bypass; retroactivity rulings diverge)
- United States v. Gould, 568 F.3d 459 (4th Cir.2009) (interim rule retroactivity; good cause debated; dissent notable)
- United States v. Utesch, 596 F.3d 302 (6th Cir.2010) (rejects APA good cause to bypass notice and comment for interim rule)
- Paulsen v. Daniels, 413 F.3d 999 (9th Cir.2005) (agency comment after rulemaking; relevance to procedural requirements)
- Hawaii Helicopter Operators Ass'n v. FAA, 51 F.3d 212 (9th Cir.1995) (emergency rulemaking permitted when imminent safety concerns)