*1 bar, pur- need time and we or merits inquiry.
sue this
Affirmed. America,
UNITED STATES
Appellee, DiTOMASSO, Defendant,
Michael
Appellant.
No. 08-2567. Appeals, Court of
First Circuit. July
Heard 22, 2010. Sept.
Decided
Kevin Fitzgerald, J. Assistant Federal Defender, appellant. Public for Shah, Milind M. Assistant United States Attorney, Neronha, with whom Peter F. Attorney, brief, was on appellee. BOUDIN,
Before SELYA GAJARSA,* Judges. Circuit SELYA, Judge. Circuit Registration The Sex Offender and No- (SORNA), tification Act Pub.L. No. 109- I, 101-155, §§ tit. 120 Stat. 590- (2006), a national fashioned scheme for offenders. This appeal requires question us to decide a about that that has scheme divided the appeals: courts of When did SORNA’s registration requirements opera- become tive with respect previously to a sex offender who traveled interstate and failed to register between SORNA’s effec- promulgation tive date and the of an inter- * Circuit, sitting by designation. Of the Federal arrest, jury up handed an grand a federal After reach? clarifying SORNA’s
im rule charging the defendant with indictment that the determining under SORNA. See 18 failing at the operative generally ments became 2250; 16913. The signed into law U.S.C. *3 when SORNA time alleged that the defendant’s of constitutional indictment' rejecting a series scheme, we in register began failure to March culpable to the challenges fail- through April conviction 2007 and continued affirm the defendant’s (a travel that followed his interstate register. period to ure 2007). February
in I. BACKGROUND in moved to dismiss the The defendant follows a conviction appeal Because dictment, that SORNA did not arguing plea, we draw the guilty on a predicated that, events, him in all apply colloquy, the change-of-plea facts from were inval registration requirements law’s presentence of the portions uncontested the motion. government opposed The sentencing report, and investigation court, thoughtful rescript, in a The district v. Cin e.g., United States transcript. rejected challenge. the defendant’s Unit (1st 1, 2 Cir. trón-Echautegui, DiTomasso, F.Supp.2d ed States Dietz, 2010); States (D.R.I.2008). The court ruled Cir.1991). applied defendant Michael DiTomasso
Defendant-appellant and after its effective date because from in obligation sex offenses Massachu- imposed “general convicted of the law was pris- from his release Id. at 241. Upon register.” in 1995. sex offenders to setts him to on, required law simultaneously Massachusetts The court rebuffed the de offender, and he did so. challenges. as a sex other Id. at 247-48. register fendant’s that, if he moved out of He was on notice elected to enter a condi- The defendant as a sex state, register have to he would 11(a)(2), guilty plea, tional Fed.R.Crim.P. in the new venue. offender right appeal his the denial of preserving kept his Massachusetts The defendant to dismiss. The district court his motion fall of through current thirty him to serve months sentenced February he moved 2006. In timely appeal ensued. prison. This Island,1 Woonsocket, up and took Rhode change Despite this there.
residence II. ANALYSIS domicile, of- register not as a sex he did princi- the defendant’s We first consider Island. fender Rhode not argument that SORNA did pal police a local officer alleged March he committed the
On to him when that Rhode Island his other consti- informed the defendant then address offense. We officer register. him to required law claims. tutional report police him that he should told Registration Applicability of the the week. A. purpose for that within
station Requirements. comply. The defendant did guilty to vi pleaded The defendant April the defendant On 2250(a). Among other olating a sex failing register as arrested for imposes penal- criminal things, this section by this Spurred in Rhode Island. offender date, interstate acknowledges that the defendant's an exact does not indicate 1. The record February travel occurred before provisionally, government, at least person required ties when a register shall, A sex offender not later than 3 days a sex offender under SORNA business knowingly after each change of name, residence, employment, traveling fails after in inter- or stu- status, dent appear person in at purposes, state commerce. For SORNA least jurisdiction pursuant involved to sub- “sex offender” is “an individual who was section jurisdiction and inform that of a sex offense.” 42 TJ.S.C. changes of all in the information 16911(1). re- The defendant concedes that quired for that offender in the sex of- taxonomy. he falls within this To under- registry. jurisdiction fender That shall argument stand his regis- that SORNA’s immediately provide that information to requirements, tration *4 jurisdictions all other in which the of- 16913(a),(c), do nonetheless to required register. fender is to him, we must understand the architecture (d)Initial registration of sex offenders of scheme. (b) comply unable to with subsection registration requirements The are laid The General shall have the 16913, out section provides: which authority specify to applicability of general In the requirements subchapter of this to A sex offender register, shall and keep sex offenders convicted before the enact- registration current, jurisdic- in each ment of this chapter or its implementa- resides, tion where the offender where tion in particular jurisdiction, and to the offender employee, is an prescribe where rules for the registration of the offender is a any student. For initial such sex offenders and for other registration purposes only, categories a sex offend- of sex offenders who are un- (b). er shall register jurisdiction also able to with subsection in which jurisdiction convicted if such is 16913.2 jurisdiction different from the of resi- 27, July became law on dence. 28, February 2007, On Gen- (b) Initial registration eral, acting pursuant to authority ex- plicitly granted 16913(d), to him section The sex offender initially regis- shall promulgated an interim rule “to eliminate ter— any possible uncertainty about the applica- (1) before completing a im- sentence of bility of requirements ... [SORNA’s] prisonment respect with to the offense sex offenders predicate whose convictions giving rise to the require- predate the Ap- enactment SORNA.” ment; or plicability of the Sex Offender Registration (2) not later than 3 days business after Act, and Notification 72 Fed.Reg. being offense, sentenced for that if the (Feb. 2007). 8896 This rule declares sex offender is not sentenced to a term that requirements SORNA’s “apply to all imprisonment. offenders, including sex offenders con- (c) Keeping the registration current victed of the offense for which discrepancy 2. There is a provision, between the United of the printed but the version in the States Code United States Code Anno- United quote States Code does not. We here respect tated language of 42 Code, the version in the United States as it is printed 16913. The version in the the official version of the statute. This differ- United States Code Annotated contains the ence, however, absolutely has bearing no (c) words "of this section” in subsections the substance of our discussion. (d) when cross-referencing other subsections
21
courts,
am
deeming the statute
Other
the enactment
prior
required
signify
it to
biguous,
have construed
72.3.
28 C.F.R.
[SORNA].”
only
authority
had
disagreed
appeals
courts of
The
previ
applicability
SORNA’s
determine
of this statu-
meaning and effect
about the
who
ously convicted sex offenders
were
See Carr Unit-
mosaic.
tory/regulatory
initially
under SORNA.3
unable
—
-,
States,
130 S.Ct.
ed
Hinckley,
States v.
(2010) (noting
176 L.Ed.2d
n.
(10th
926, 930, 932-33,
Cir.2008),
F.3d
disagreement centers
The
split).
circuit
, —U.S.-,
cert.
(d),
perti-
contains two
denied
which
on subsection
(2009);
United States v.
question
boils down
clauses.
nent
(8th
Cir.2008),
May,
F.3d
clause,
stating
“[t]he
the first
whether
—
denied,
U.S.-,
cert.
shall have
Attorney General
(2009);
see also
with subsection specific subsets only as plicability urges The defendant us follow those offenders. Sixth, Fourth, and Eleventh Circuits determined, that re often and hold SORNA’s courts
Some
not
to him when he
dissents,
quirements
apply
did
that
the statute
emphatic
over
view,
plain
In his
traveled interstate.
General
unambiguously gave
(d) delegates to the
of subsection
appli
language
authority to determine SORNA’s
authority to deter
Attorney General sole
cability
persons previously
all
any or all
See,
applies to
v. mine whether SORNA
e.g., United States
of sex offenses.
(6th Cir.2009);
preexisting convictions
408,
sex offenders with
F.3d
583
Hatcher,
222,
and,
General did
inasmuch as
560 F.3d
United States
(4th
February
this
until
Cir.2009);
v. Ma
not exercise
228
(when
(11th Cir.2008) 28,
promulgated the interim
dera,
2007
he
858
528 F.3d
curiam).
correct,
rule),
who traveled
convicted sex offenders
If
view is
SOR-
(per
this
register
did
that date and failed
convicted before
previously
not
NA did
require
not violate SORNA’s
until the
sex offenders
statute,
reading of the
Any
ments.
other
the interim rule. See Hatch-
promulgated
contends,
transgress the Ex Post
er,
he
would
Facto Const. art. U.S. “punishment an act prohibits vacuum, which a straightforward if read in time it punishable which was not at the reading applying mechanical of it as to all Graham, Weaver v. was committed.” previously convicted sex would offenders U.S. moorings. wrest it from its contextual (1981) Missouri, Cummings v. (quoting Taking into account context which (4 Wall.) 277, 325-26, 18 L.Ed. provision operates, this we do not believe (1867)). claim presents Because this that a mechanical construction such construction, question we af what intended. ford de novo review. United States (1st Cir.2007). Leahy, 473 F.3d In our judgment, a different canon interpretive of construction dominates the “Statutory interpretation begins landscape When congres instance. language the statute.” Ruiz v. plausi sional intent is clear a statute Bally Holding Corp., Total Fitness Cir.2007). (1st intent, bly some can be read to effectuate that Absent indication that the words of a statute have reading prevail that must over a more meaning,” an normally “exotic we assume semantically reading correct of the statuto language employed carries its Hill, ry language. re e.g., In 562 F.3d ordinary usual meaning. SEC v. (“[Pjlain at 32 meaning sometimes must Cir.2010) Tambone, yield its application bring if would about (en banc). If meaning of the text is results are either absurd or anti plain, generally go we need In no further. intent.”). to Congress’s thetical discernible *6 Cir.2009). Hill, 29, re 562 F.3d 32 explain why We below think that we this is such a case. rule, virtually general like ev
This rule, ery general exceptions. admits of In the clear congres absence of a pertinent One such is exception here. No contrary—and sional direction to the there
less an
than
authority
Supreme
the
Court
is
here—“a law
effect
none
takes
on the
has
“the meaning
statutory
warned that
of
its
date of
enactment.” Gozlon-Peretz v.
not,
language, plain or
depends
con
States,
395, 404,
111 S.Ct.
States,
Holloway
text.”
v. United
526
(1991).
840,
Third, to fashion a SORNA was tailored previously to those convicted offenders regulatory scheme. comprehensive to comply who were unable with subsec (d) Construing 16901. subsection (b), tion not to previously exempt a broad swath of the convicted generally. offenders more use of population indeed, the en- sex offender — in the word “other” second clause is most it, tirety of until General naturally Congress’s read indicate con uncomfortably fit with the re- acts—would that the “sex templation offenders convict of the Act. mainder chapter” ed before the enactment of this (d)
Fourth,
referenced in the first
will
one
speci-
of
clause
form
title
subsection
subset of
unable
with
authority
comply
that the
it
relates
“offenders
fies
describes
“[ijnitial
(b).”
subsection
of sex offend-
v. Ven
States
Cf.
(b).” Fuel, Inc.,
comply
ers unable to
with
758 F.2d
Cir.
subsection
1985) (“All
language clearly
stat
provisions
This
indicates
words
upon
of the
scope
conferred
utes are intended to have
are
meaning and
(d)
effect,
is lim-
given
subsection
to be
and no construction
prescribing
governing
ited to
rules
those
adopted
should be
which would render
unable to
SORNA’s
offenders
phrases meaningless,
or
words
requirements
initial
under
superfluous.”).
or
redundant
This inter
(b)
pre-SORNA
and not
subsection
pretation
the interaction
between the
Hinckley,
more generally.
offenders
two
subsection
intact
clauses
leaves
at
*8
registration requirements
the
articulated
in
and
applicabili
subsection
limits the
Some of the courts that have en
(d)
ty of
to
un
subsection
those offenders
a contrary
dorsed
of
construction
subsec
able to
with the
requirements
(d) have disregarded
tion
the title of the
(b).
Hinckley,
subsection
See
F.3d at
principle
subsection based on the
that
only
courts
look to the title of a law in the
See,
Sixth,
of ambiguity.
finally,
scope
event
our
view of the
(d)
416; Hatcher,
at
at
by
way
226. of
is
in
subsection
informed
the
where,
principle
But that
not pertain
Congress
delegate
does
which
chose to
authori-
here, an inquiring
primary
ty
Attorney
as
court’s
task
to the
General. The subsec-
place a
in
provides
Attorney
is to
statute
context before
tion
that
the
General
Thus,
attempting to
authority”
construe it.
we do not
the
to
the
“shall have
determine
title to
requirements
use the
“undo or limit what the text
of the
imposed
16913(d).
regard
It
latter course.
is
We
this choice as
by
SORNA.
and, thus,
favoring reading
deliberate
as
a
that the drafters eschewed
apparent
thus
(d)
grant
a
“shall
subsection
as
Attor-
mandatory language (e.g.,
the use of
determine”)
ney
provide
discretion to
General of
limit-
compelled
the
that would
the
requirements
ed relief from
broad
im-
to make an affirmative
Attorney General
in
posed by SORNA order to account for
could be
before the statute
determination
problematic permutations
might arise
any previously
convicted
applied
previously
to some
respect
lan-
permissive
In its use of
offender.
sex offenders.
(d)
other
differs from
guage, subsection
in
provisions
Congress
which
lampposts light
path
These
the
that we
by
Attorney
action
General.
mandated
structure,
language,
must follow. The
16917(b)
See,
(directing
that “the
e.g., (d)
purpose of subsection
and the context
rules for
Attorney
prescribe
General shall
in
it operates
which
combine to show its
offenders”). Con-
notification of sex
that,
unambiguous meaning.
hold
in
We
provisions
decision to couch some
gress’s
(d),
framing
Congress
subsection
did not
mandatory language
statute in
of the
contemplate
scheme in which
discretionary
subsection
in
to couch
application
general
of the
rules limned
sign.4
Duncan v.
language is
telltale
(c)
(a), (b),
previously
subsections
Walker,
167, 172-74, 121
hinge
convicted sex offenders would
2120,
B. Other Claims.
that substantially
activities
affect inter-
two
The defendant advances
state commerce.
First,
that
arguments.
he maintains
other
Congress
the Com
power
lacked
under
549,
Lopez,
v.
514
U.S.
558-
regis
to enact sex offender
merce Clause
1624,
(1995)
59,
115 S.Ct.
626
Second, he assever
requirements.
(internal
omitted).
tration
citations
infringes
rights
that
his
ates
his conviction
test,
to
Keying
the defendant
because it
the Due Process Clause
under
as-applied
an
ar
challenge.
launches
He
him
with
impossible
the
gues
regulate
that SORNA does not
at the time of his interstate trave
SORNA
of, persons
channels or instrumentalities
sepa
address these arguments
l.7 We
in,
having or activities
substantial effect
rately, mindful of
to review
obligation
our
on,
commerce.
interstate
United
United
challenges
constitutional
de novo.
Morrison,
598, 608-09,
529
States v.
U.S.
1, 4
Volungus,
States
F.3d
613,
1740,
120 S.Ct.
[W]e needed activity may regu- ries of that Congress satisfy Lopez standard. See United (2d First, Guzman, late under its power. commerce States v. 591 F.3d — Cir.), denied, Congress may regulate U.S.-, use of the cert. — —- (2010); commerce.
channels of interstate Sec- L.Ed.2d Shenan ond, doah, 160-61; regulate at empowered 595 F.3d States (8th Cir.2009) protect of in- Zuniga, instrumentalities — curiam), commerce, denied, U.S.-, persons things (per terstate or or cert. commerce, though in interstate even L.Ed.2d 305 may only element, threat come intrastate presence from Given the of this Finally, activities. Congress’ commerce statute a sufficient has nexus to interstate authority power regulate includes the commerce survive the defendant’s Com those activities having challenge.8 substantial rela- merce Clause Cir.2005); supplemental In briefing, Corp., 7. defendant Sandstrom v. ChemLawn (1st Cir.1990). argument: tried to raise a further that the promulgation General's of the inter- rule suggests im violated the Proce- Administrative 8. The defendant Act, argument dures requirement This contained in 42 U.S.C. Congress's power was available to the when he filed defendant itself exceeds under (indeed, below), opening suggestion it his brief he made Clause. This Commerce is incor- Clause, Necessary Proper it falls so within familiar rule issues rect. The Const, I, appellant’s opening provides Congress advanced an brief art. cl. activity ample regulate are deemed waived. States v. See United local *10 476, Vázquez-Rivera, general part regulating 407 F.3d 487-88 as of a scheme inter-
27
event,
any
by
time that Congress
Process.
The defen
2. Due
SORNA, every
He
enacted
state had a
argument
state-specific.
final
dant’s
registration
in place.
Rhode Island had
offender
law
See
contends that because
Doe,
at the time Smith v.
123 S.Ct.
“implemented” SORNA
not
(2003).
interstate,
1140,
not
155 L.Ed.2d
he could
164
SORNA’s
that he traveled
registration requirements do not contem-
complied with the law’s
have
Therefore,
plate
specific type
registration;
they
conviction
a
requirements.
his
right
process. merely require
“register
to due
a sex offender to
trespasses upon his
jurisdiction
...
in each
where the offender
this “im
tarry. Although
need not
We
16913(a).
Registra-
resides.” 42 U.S.C.
argument is new to us
possibility”
with a preexisting
tion
accordance
state
context,
uniformly rejected
it has been
sex offender
law satisfies
See,
v. Hes
e.g., United States
elsewhere.
Griffey,
See
F.3d at 1366
SORNA.
589
Cir.2009)
(2d
ter,
(per
F.3d
92
cases).
(collecting
—
denied,
-,
curiam),
cert.
U.S.
2137, 176
(2010);
good
given
This construct makes
sense
L.Ed.2d
(11th
office
a mechanism for
Griffey,
v.
589 F.3d
SORNA’s
as
identi-
States
Cir.2009)
curiam),
fying
might
cert. denied.
sex offenders who otherwise
(per
—
-,
slip through
state-by-
the cracks and elude
U.S.
130 S.Ct.
Gould,
(2010);
registration requirements by moving
568 state
United States
(4th Cir.2009),
16901;
cert. de
across state lines. See U.S.C.
463-65
—nied,
-,
1686, 176 see also National Guidelines for Sex Of-
Notification,
join
queue,
Registration
fender
and
L.Ed.2d 186
We
2008) (ex-
38,030, 38,030
Fed.Reg.
(July
statement
only to offer decurtate
pausing
plaining that
reasoning.
SORNA
enacted to
of our
and
un-
potential gaps
loopholes
“eliminate
aimed at
contains commands
pre-existing
der the
standards means of
sex of-
two different audiences: convicted
attempt
which sex offenders could
to evade
offend-
Convicted sex
fenders
states.
registration requirements”). The result is
register. See U.S.C.
ers must
that,
regis-
as a state maintains a
long
steps,
take various
such as
States must
offenders,
for sex
what
tration mechanism
maintaining
jurisdiction-wide
sex offend-
respect
the state does or does not do with
registry, enacting
penalties
er
criminal
implementing
state-specific
its
obli-
register,
sharing
informa-
failures to
is not
to a
gations under SORNA
relevant
See,
id.
registries.
e.g.,
tion with other
obligation
register.
sex offender’s
16921(b).
16913(e),
16912(a),
A state’s
§§
Gould,
support applying the statute to the defen- ing federal funding adopt new federal may dant. It be useful to underscore two —to standards in points: further their own sex regis- offender design statute’s against leans tration reading programs. narrow adopted U.S.C. In 16925. by several other addition, circuits and that Con- it directly imposed new federal gress’ purpose supports the broader one registration obligations on sex offenders today. that we adopt provided and for federal enforcement of those obligations. §§ 16913- National standards for reg- sex offender important 16917. What is istration have existed since when the case be- Congress provided federal fore us is that funding intended the en- states that enacted sex registra- offender provisions forcement of their own tion laws. By See U.S.C. force to those who had previously been time that the Sex Registration Offender just convicted and not newly (SORNA), Notification Act Pub.L. No. offenders. 109-248, I, (42 tit. 120 Stat. 590 The Judiciary House Committee report § 16901 et seq.), signed into law on on an earlier version of explained July 2006, every including Mas- state — that SORNA would “strong address the sachusetts and Rhode Island —had enacted public interest in finding” previously con- sex offender law. See Na- victed offenders who currently were not tional Guidelines for Regis- Sex Offender registered having “and Notification, 38,- register tration them Fed.Reg. 030, 38,030 2, 2008); (July current information mitigate see also Smith risks of Doe, additional against crimes children.” L.Ed.2d 164 109-218, H.R.Rep. No. pt. at 24. Simi- larly, Kyi explained: Senator “There cur- pre-SORNA But state-by-state rently 100,000 are over sex offenders in schemes potential contained gaps loop- country who required are through holes which sex offenders could system.’ but are ‘off the They are not attempt evade registered. penalties ments consequences or the this bill 109-218, violations. See should H.R.Rep. pt. adequate No. be to ensure that these 1, at 23. Senator explained: Cantwell register.” individuals Cong. Rec. *12 2006) 2250(a); § period. a fixed 18 U.S.C. July (emphasis (daily ed. S8025 Hatch). (Sen. 16913; States, § added); U.S.C. see Carr United id. at S8013 accord — U.S.-, provision on Consonantly, the SORNA (2010). Here, previous DiTomasso — offenders for sex registry requirements ly registered in Massachusetts as a sex “In paragraph, titled single opening has in offender —traveled interstate commerce all “sex offenders]” that directs general,” then July after and failed to registration their keep and to register in register though Rhode Island even ex 16913(a), current, and pressly obligation regis advised of his “an indi- term sex offender as defines the ter. offense,” convicted of a sex vidual who was added). 16911(1) Subsec- (emphasis point, might why At this one wonder (a), with exempting any tion offenders at all problem without there is with DiTomas- came into before SORNA problem convictions so’s conviction. The arises be- force, SORNA, in full: provides Congress adopted in cause only requirement the blanket of subsection register, keep and
A sex offender shall
(a),
also a more
provision
detailed
deal-
current,
jurisdic-
in
registration
each
(subsection
initial
ing
registration
with
resides,
where the offender
where
tion
(b));
a provision
regis-
titled “Initial
employee,
is an
and where
the offender
comply
tration of sex offenders unable to
For initial
the offender is
student.
(b)” (subsection (d)).
with subsection
The
only, a
registration purposes
sex offend-
latter,
in language
drafted
somewhat
jurisdiction
in
register
also
er shall
first,
opaque at
reads:
jurisdiction
if
convicted
such
is
which
jurisdiction
(d)
different from the
of resi-
Initial
of sex offenders
(b)
dence.
to comply
unable
with subsection
16913(a).
Id.
The
General shall have the
specify
applicability
provision,
achieving
central to
SOR-
requirements
subchapter
of this
objectives, manifestly remedial in
NA’s
July
sex offenders convicted before
punitive. This is borne out
purpose—not
implementation
particu-
2006 or its
in a
by
requiring regis-
the evident reason for
jurisdiction,
prescribe
lar
rules
place,
pre-
in the first
which is to
tration
any
for the
such sex of-
crimes,
by
vent further
the statements
other categories
fenders and for
of sex
effect,
Congress to the same
comply
offenders who are unable to
with
registration provisions
placement of
(b).
subsection
Code,
than
U.S.C. rather
the Criminal
presumption against
16913(d).
no
18 U.S.C. There is
prohibition
making remedial meas-
or
heading
Since both the
and the main
preexisting
ures
circumstances.
internal cross reference in the text —“of-
Smith,
84,
until the so determines. perfectly
It is fair to read subsections (d) together contrary so that —absent Attorney
action General —SORNA
applies to one convicted before SORNA
but who “travels” afterwards and refuses register. way Attorney That is the America, UNITED STATES of General himself reads the statute.10 See Appellee, SORNA, Applicability 72 Fed.Reg. (Feb. 2007) (codified at 28 C.F.R. 72.3). GAGNON, Defendant, Bruce Appellant. A contrary reading suppose would No. 09-1047. pre-SORNA left those with con-
victions free from require- Appeals, United States Court of ments until Attorney unless and Gen- First Circuit. got eral regulating; around to in principle, July Heard 2010.
such a reading would allow him not to regulate Sept. them at all. Decided 2010. hardly This is con- sistent with Congress’ emphatic purpose to “strong public
advance the interest in find-
ing” imposing registration already
ments on those convicted before
SORNA itself. very capable judges
Some appear initial-
ly to have viewed the matter differently,
cumstances,
registered
force,
NA to have
in the manner
persuasive
it has
see Skid
prescribed by
within the time
Co.,
limits now
more v.
&
323 U.S.
Swift
(b) requirements.
SORNA's subsection
Carr,