United States v. Whitlow
2013 U.S. App. LEXIS 7782
| 1st Cir. | 2013Background
- Whitlow, a convicted DC sex offender, moved to Massachusetts in 2009 without complying with SORNA registration requirements.
- In 2010 Whitlow was apprehended in Cambridge, MA and admitted to knowingly failing to register upon arrival.
- An indictment charged Whitlow with violating 18 U.S.C. § 2250(a) for failing to register and update his registration after interstate travel.
- Whitlow pled guilty but preserved on appeal several challenges to SORNA's reach and the validity of the related regulations.
- Pre-Act offender applicability and retroactivity became central after Reynolds (2012) held that the Attorney General could specify retroactivity, rather than SORNA automatically applying to pre-Act offenders.
- The government proposed that Interim Rule (2007) and SMART Guidelines (2008) extended SORNA to pre-Act offenders by 2009, while Whitlow argued these regulations were invalid or ineffective.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did SMART Guidelines validly extend SORNA to pre-Act offenders? | Whitlow contends guidelines rest on retroactivity not properly established. | Whitlow's position is that guidelines exceeded authority or misapplied retroactivity; government argues guidelines validly extended retroactively. | SMART Guidelines valid; Whitlow subject to SORNA for pre-Act travel |
| Whether Interim Rule or SMART Guidelines violated APA notice or good cause requirements? | Interim Rule lacked APA notice/good cause; Whitlow argues procedural flaws invalidating applicability. | Guidelines were properly noticed and comments considered; retroactivity adequately discussed. | No reversible APA defect; guidelines properly issued and comment process satisfied |
| Does Reynolds control retroactivity of SORNA for pre-Act offenders like Whitlow? | If retroactivity not properly established, Whitlow cannot be liable under § 2250(a). | AG regulations can specify retroactivity; Whitlow is properly covered by SORNA. | Retroactivity properly specified by regulations; Whitlow liable |
| Is SORNA within Congress's enumerated powers as applied to Whitlow? | Whitlow asserts SORNA exceeds federal power or is improperly delegated. | Prior First Circuit decisions upholding SORNA's power apply; Reynolds clarifies retroactivity question. | SORNA valid as applied to Whitlow; no constitutional defect found |
Key Cases Cited
- Reynolds v. United States, 132 S. Ct. 975 (2012) (held AG must specify retroactivity; SORNA not automatically retroactive)
- DiTomasso v. United States, 621 F.3d 17 (1st Cir. 2010) (SORNA applies to pre-Act offenders upon enactment per court)
- Parks v. United States, 698 F.3d 1 (1st Cir. 2012) (addresses Commerce/Non-delegation; retroactivity considerations)
- Stevenson v. United States, 676 F.3d 557 (6th Cir. 2012) (upholds regulatory retroactivity framework under § 16912(b))
- United States v. Guzman, 591 F.3d 83 (2d Cir. 2010) (Separation of offender obligations from state implementation duties)
- United States v. Trent, 654 F.3d 574 (6th Cir. 2011) (retroactivity and implementation context considerations)