Lead Opinion
Defendanh-Appellant Shawn Lloyd Hinckley appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250, enacted July 27, 2006. On appeal, he argues that (1) the indictment was constitutionally defective because it sought to prosecute him for behavior that predated SORNA’s effective date; (2) the application of SORNA in his circumstances violates the Ex Post Facto Clause; (3) he was denied due process because he had no notice that he was
Background
On October 19, 2000, Mr. Hinckley pled guilty to assault in the third degree with sexual motivation in Whatcom County, Washington. The plea arose out of allegations that he had forcible sex with his then live-in, but estranged, girlfriend who was six months’ pregnant with twins. Mr. Hinckley received a sentence of sixty (60) days in jail and twelve (12) months of community supervision, and was informed of his obligation to register as a sex offender in Washington. He was later convicted in March 2004 for failure to register in Washington State and received a sentence of three months. Upon his release on April 21, 2004, Mr. Hinckley registered as a sex offender in Washington.
In December 2005, Mr. Hinckley informed Washington authorities of his intention to move to Vian, Oklahoma, to live with his grandparents. Whatcom County authorities report that Mr. Hinckley was informed of his duty to register as a sex offender with the sheriffs office of the county to which he was moving in Oklahoma. On March 20, 2006, Mr. Hinckley applied for an Oklahoma Identification Card and signed an acknowledgment that he was required to register as a sex offender under Oklahoma law. In August 2006, Mr. Hinckley obtained employment with Mr. David Graham that required him to travel on a daily basis to Arkansas. Then, on January 24, 2007, Mr. Hinckley appeared at the Sallisaw Police Department to report a crime, and authorities discovered that Mr. Hinckley had not registered in Oklahoma. That same day, Mr. Hinckley registered as a sex offender at the Sequoyah County sheriffs office.
On March 14, 2007, federal authorities indicted Mr. Hinckley on one count of violating the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250. The indictment charged Mr. Hinckley in the Eastern District of Oklahoma as “an individual required to register ... after becoming required to register, [with traveling] in interstate commerce, and ... knowingly failing] to register and update registration as required” during the period March 4, 2004, to January 24, 2007. On March 29, 2007, Mr. Hinckley filed a motion to dismiss the indictment. The district court denied Mr. Hinckley’s motion. Mr. Hinckley then entered a conditional plea of guilty, reserving his right to appeal the district court’s order denying his motion to dismiss. In December 2007, the district court sentenced him to twenty-four (24) months’ imprisonment and sixty (60) months’ supervised release. Mr. Hinckley now appeals.
Discussion
The issues in this case involve statutory interpretations of and constitutional challenges to SORNA. We review such issues de novo, “ ‘interpreting] the words of the statute in light of the purposes Congress sought to serve.’ ” Wright v. Fed. Bureau of Prisons,
A. Applicability of SORNA
Mr. Hinckley argues that (1) his indictment is invalid because SORNA had not been enacted or implemented when he was alleged to have violated it; and (2) he was not required to register under SOR-NA until February 28, 2007, when the Attorney General issued an Interim Rule clarifying SORNA’s retroactivity. The district court determined that “it is apparent from the plain language of the statute that SORNA applies to [Mr. Hinckley].” United States v. Hinckley, CR-07-18RAW (E.D. Okla. April 18, 2007) (Order denying Mr. Hinckley’s motion to dismiss the indictment).
SORNA provides, in pertinent part:
(a) In general
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration
The sex offender shall initially register—
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.
(d)Initial registration of sex offenders unable to comply with subsection (b) of this section
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
42 U.S.C. § 16913(a)-(d).
The Attorney General issued his Interim Rule on February 28, 2007, “making it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted.” 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). The Rule states that “SORNA’s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration.” Id. at 8895.
The courts are split on the meaning of subsection (d), and whether sex offenders who failed to register during the “gap period” between SORNA’s enactment and the Interim Rule have violated the regis
We begin with a brief discussion of the opposing interpretations of subsection (d) that courts have offered. To focus the discussion, we analyze the decisions of our sister circuits in United States v. Madera,
In Madera, the court relied on the reasoning in United States v. Kapp,
The Madera court relied on the use of the word “shall” in subsection (d) as evidence that “Congress was issuing a directive to the Attorney General specifically to make the determination [of whether SORNA applied retroactively to those convicted prior to July 2006].” Madera,
In May, the Eighth Circuit took the opposite position and found ambiguity in subsection (d). “Although the word ‘shall’ indicates a congressional directive, the question remains as to what § 16913(d) was specifically directing the Attorney General to regulate.” May,
In support, the May court relied on the analysis in Beasley,
In agreement with Beasley, we also find it reasonable that the use of the word “other” to modify the phrase “categories of sex offenders who are unable to comply with subsection (d)” indicates that “offenders convicted prior to the law’s enactment are one of the categories of offenders unable to comply with subsection (b).” Id. at *6 n. 6. Such an interpretation leaves unaltered the ongoing registration requirements under subsections (a) and (c) imposed on all sex offenders. Furthermore, this interpretation does not affect those offenders who were required to register pre-SORNA under state law and therefore are excluded from SORNA’s initial registration obligations in subsection (b) and any related rules promulgated with regard to initial registration under subsection (d). We agree with the Eighth Circuit’s reading, finding that “the language of the statute is broad enough to permit” the Beasley court’s additional possible interpretation. Zuni Pub. Sch. Dist. No. 89 v. Dept. of Educ.,
“[Statutory ‘[a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.’ ” Id. at 1546 (quoting Brown v. Gardner,
As in May, the government argues that subsection (d) refers only to initial registration requirements. In support, the government relies on United States v. Zuniga, No. 4:07CR3156,
The dissent concludes that we must follow a “plain meaning” reading of the Act. Given the obvious inconsistency among the subsection’s subtitle, the statutory language, and the apparent breadth of the statute, we disagree. We have never be
The plain language of subsection (d) is not nearly so clear as to unambiguously indicate that Congress intended to prohibit application of SORNA to all previously convicted sex offenders. Furthermore, when considered in context, it becomes clear that Congress did not intend to exempt all sex offenders convicted before July 27, 2006, from SORNA’s requirements. Many sex offenders convicted before that date (those still incarcerated or awaiting sentencing) would be able to comply with subsection (b)’s initial registration requirement. There would be no reason for Congress to exempt such sex offenders. Congress was likely concerned with old convictions — offenders who had already served their sentences and never before had been required to register. As the Interim Rule explained, that group of sex offenders presents a logistical problem, one that Congress thought best to allow the Attorney General to resolve. See 72 Fed.Reg. at 8896.
The dissent completely ignores subsection (d)’s title, which limits its scope to the “Initial registration of sex offenders unable to comply with subsection (b) of this section.” Here, as in National Bank of Oregon,
In sum, the dissent’s conclusion is based on a single clause — “sex offenders convicted before July 27, 2006” — to the exclusion of all other portions of the statute and its purpose. We reject such a reading as contrary to the principles of statutory interpretation. See King v. St. Vincent’s Hosp.,
Mr. Hinckley was originally required to register under Washington and Oklahoma law prior to the enactment of SORNA. Because he had already registered, he is not subject to SORNA’s initial registration requirements in subsections (b) or (d); consequently, there is no question regarding SORNA’s applicability between July 2006 and the issuance of the Interim Rule.
B. Ex Post Facto Clause
Mr. Hinckley next argues that his prosecution under SORNA violates the Ex Post Facto Clause because it (1) punishes actions that occurred prior to SORNA’s effective date and (2) increases punishment beyond what was in place at the time the crime was committed. In making this argument, he relies on Weaver v. Graham, which defined the ex post facto prohibition as barring Congress and the states from enacting “any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ”
The district court did not address whether SORNA violates the Ex Post Fac-to Clause; however, we agree with the reasoning of the May court and hold that neither SORNA’s registration requirements nor the criminal penalties attached to non-compliance in § 2250 violate the Ex Post Facto Clause. Relying on Smith v. Doe,
1. Punishment for Prior Acts
Mr. Hinckley first argues that his indictment for failure to register under § 2250 punishes him for acts committed prior to SORNA’s effective date, and therefore violates the Ex Post Facto Clause. Because we view the failure to register as a continuing offense, we find no merit in Mr. Hinckley’s claim.
The Supreme Court, in Toussie v. United States,
Because subsection (d) applies only to initial registration issues, the application of SORNA to Mr. Hinckley does not violate the Ex Post Facto Clause. SORNA’s failure to register provisions, 18 U.S.C. § 2250, impose registration requirements on any sex offender who “travels in interstate or foreign commerce” and “knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act.” Mr. Hinckley’s indictment covers the time period spanning from SORNA’s enactment in July 2006 up to the date he finally registered as a sex offender in Oklahoma as required by state and federal law on January 24, 2007. During this period, Mr. Hinckley continued to travel in interstate commerce daily between Oklahoma and Arkansas for work purposes. Therefore, Mr. Hinckley violated SORNA’s registration requirements as outlined in 42 U.S.C. § 16913(a) and (e) by failing to keep his registration current in Oklahoma after a change of residence or employment, and the Ex Post Facto Clause does not bar punishment.
2. Smith v. Doe
Mr. Hinckley further challenges SORNA’s overall applicability, arguing that the statute violates the Ex Post Facto Clause because it increases punishment retroactively. In making this argument, Mr. Hinckley unsuccessfully attempts to
To determine whether the retroactive application of a statute violates the Ex Post Facto Clause, a court must decide whether the statute is civil or criminal in nature. See id. (citing Kansas v. Hendricks,
Distinguishing Smith, Mr. Hinckley characterizes SORNA as a punitive criminal statute that violates the Ex Post Facto Clause. Unlike SORNA, he argues, the Smith scheme was primarily civil in nature, did not require Internet dissemination of offenders’ information, did not establish a community notification program, did not require in-person reporting, and did not include felony criminal penalties. However, SORNA’s declaration of purpose shapes the statute as one involving public safety concerns, making clear that the law is designed “to protect the public from sex offenders and offenders against children,” and comes as a “response to the vicious attacks by violent predators.” 42 U.S.C. § 16901; see May,
To make our determination definitive, we must further explore whether such a “civil” statute is “‘so punitive either in purpose or effect as to negate [Congress’s] intention’ to deem it ‘civil.’ ” Hendricks,
Ultimately, SORNA, a civil retroactive registration scheme, relies on criminal penalties to further its civil intent. It includes such penalties for the failure to register following interstate travel, thereby creating an entirely new offense imposed only upon violation of SORNA’s registration requirements. Contrary to Mr. Hinckley’s arguments, SORNA does not increase punishment for acts committed prior to SORNA’s effective date. Therefore, the prosecution of Mr. Hinckley under SORNA does not violate the Ex Post Facto Clause.
C. Due Process
Mr. Hinckley next raises due process claims, arguing that the courts imposed SORNA’s penalties without proper notice. First, he contends that he could not have “knowingly” failed to register under SOR-NA because the government failed to inform him of his federal duty to register and of the greater penalty attached to SORNA violations. Second, he argues that it was impossible to register in Oklahoma during the relevant time period because the state had not yet passed legislation implementing SORNA. As in May, Mr. Hinckley’s claim, “when boiled down to its essence, amounts to an ‘ignorance of the law argument.’ ” May,
In arguing that he had no notice of his obligation to register, Mr. Hinckley relies on United States v. Smith,
Mr. Hinckley also contends that, while he may have had notice of his duty to register, he did not have notice of the greater penalties SORNA carried. He relies on United States v. Barnes, No. 07 Cr. 187,
Finally, Mr. Hinckley argues that Oklahoma had not yet statutorily implemented SORNA, thereby making registration in Oklahoma impossible. In support, he relies on Lambert v. California,
D. Nondelegation Doctrine
Mr. Hinckley further argues that Congress violated the non-delegation doctrine by granting the Attorney General the power to determine SORNA’s retroactivity under 42 U.S.C. § 16913(d). Because Mr. Hinckley is not an offender “unable to comply with [the initial registration requirements of] subsection (b),” we need not reach this argument. Subsection (d) does not apply to offenders who are required to and have already initially registered, and Mr. Hinckley therefore lacks standing to bring this claim. See May,
E. Commerce Clause
Finally, Mr. Hinckley argues that SORNA violates the Commerce Clause. Specifically, he claims that the application of SORNA to his conduct is flawed, since his daily trips to Arkansas were not the type of conduct encompassed by “interstate travel,” and that the failure to register as a sex offender has no substantial effect on interstate commerce. The Supreme Court has identified three areas that Congress may regulate under the Commerce Clause: (1) “the use of the channels of interstate commerce”; (2) “the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “those activities that substantially affect
Mr. Hinckley relies on Lopez and Morrison to support his claims. However, the statutes in those cases are easily distinguished from SORNA because they failed to include an interstate travel requirement and related only to purely intrastate activity, which falls under Lopez’s third prong. The violation at issue here comprises two elements: post-SORNA failure to register coupled with interstate travel. Not only was Mr. Hinckley a “person ... in interstate commerce,” but he also used the channels of interstate commerce on a daily basis. Clearly, his travel across state lines to and from Oklahoma falls under the first or second of the Lopez prongs. Whether such an activity has a substantial effect on interstate commerce is irrelevant, since the first and second prongs of Lopez confirm Congress’s authority to regulate this type of activity. See May,
Essentially, “the Commerce Clause allows ‘Congress to keep the channels of interstate commerce free from immoral and injurious uses.’ ” United States v. Patton,
AFFIRMED.
Notes
. Admittedly, the question presents a close call. The dissent argues that subsection (d) unambiguously authorizes the Attorney General to make SORNA retroactively applicable to past offenders in its first clause, and in its second clause gives the Attorney General the power to prescribe rules for past offenders and those offenders unable to comply with subsection (b)’s initial registration requirements. As discussed, we disagree, finding that subsection (d) presents a statutory ambiguity, and can also reasonably be read to authorize the Attorney General merely to promulgate rules regarding initial registration requirements for those offenders unable to comply with subsection (b)’s requirements. Our interpretation of the statute is “not guided by a single sentence or member of a sentence, but [by] the provisions of the whole law, and ... its object and policy.” Dole v. United Steelworkers of Am.,
. In a related case, this court has held that SORNA does not apply to defendants who completed their interstate travel prior to SORNA's effective date of July 27, 2006. See United States v. Husted, No. 08-6010,
.“If SORNA were deemed inapplicable to sex offenders convicted prior to its enactment, then the resulting system for registration of sex offenders would be far from 'comprehensive,' and would not be effective in protecting the public from sex offenders because most sex offenders who are being released into the community or are now at large would be outside of its scope for years to come. For example, it would not apply to a sex offender convicted of a rape or child molestation offense in 2005, who is sentenced to imprisonment and released in 2020.” 72 Fed.Reg. at 8896.
.If the ambiguity persists after consideration of the above factors, the Supreme Court requires the application of the rule of lenity. See Callanan v. U.S.,
. The Interim Rule states: "The current rule-making serves the narrower, immediately necessary purpose of foreclosing any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA.” 72 Fed.Reg. at 8896. The Rule goes on to state, "This rule forecloses such claims by making it indisputably clear that SORNA applies to all sex offenders ... regardless of when they were convicted.” Id.
. Because sex offenders who have never before been required to register are not in the sex offender registry, tracking them down and notifying them of SORNA’s requirements would require jurisdictions to go through old records and determine whether their convictions constitute sex offenses for the purposes of SORNA, and track them down and notify them of the new law. It makes sense that Congress would decide it best to allow the Attorney General to determine if and to what extent jurisdictions would be required to register sex offenders falling into this category. See generally Final Guidelines, 73 Fed.Reg. 38,030-01 (July 2, 2008).
. For the purposes of the case before us, we do not need to decide whether an individual who had never before been required to register would be required to register under subsection (d) before the Attorney General issued the Interim Rule.
. The Supreme Court has held that a conviction may be upheld as long as the indictment sets out the offense charged. "A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as 'a useless averment’ that ‘may be ignored.’ ” United States v. Miller,
Concurrence Opinion
concurring.
I am pleased to join Judge Kelly’s thoughtful opinion for the court, and write only to add a few thoughts concerning the scope of SORNA’s application.
When interpreting a statute, we begin with the words Congress has chosen. If, taking account of its context, that language is clear, our inquiry ends where it began, and we enforce the statute’s plain meaning. Robinson v. Shell Oil Co.,
I
In deciding whether a statute is plain or ambiguous, we must ask whether it is “ca
(b) Initial registration
The sex offender shall initially register—
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
* * *
(d) Initial registration of sex offenders unable to comply with subsection (b) of this section1
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offender and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
It seems to me that a reasonable reader could find the language of subsection (d) susceptible to at least two interpretations. First, it might be read, as Mr. Hinckley, the dissent, and the Eleventh Circuit suggest, as containing two entirely independent commands: (i) SORNA will apply only to those convicted of sex offenses in the future, unless the Attorney General should happen to decide otherwise; and, (ii) the Attorney General is authorized to prescribe rules for the registration of certain sex offenders. See Dissent at 949-50; United States v. Madera,
A
The first, and most narrow, such feature lies in the grammar of subsection (d) itself and the lack of clarity about what the phrase “who are unable to comply with subsection (b) of this section” actually modifies. In this respect, our statute is like a veterinarian’s advertisement promising to “perform surgery on any canine under 100 pounds, and provide necessary medication for any such canine and for other canines who are domestic pets.” A reasonable person might understand the
So it is with our statute. Because § 16913(d) provides that the Attorney General can specify the applicability of SORNA for those offenders convicted before July 27, 2006 and prescribe rules for those offenders and any other offenders unable to comply with subsection (b), it is at least possible to read the language to suggest that the Attorney General’s power only extends to those offenders convicted before July 27, 2006, who are also unable to comply with subsection (b) — and not to all sex offenders convicted before July 27, 2006. To be sure, statutory context, a point I will turn to shortly, may well shed light on the reasonableness of this reading, and help us ascertain whether an ambiguity exists. But it is not an interpretation that can be necessarily and automatically excluded even by the isolated language of the statute.
To argue otherwise risks having us ignore the reality of ambiguity created by misplaced modifiers and similar grammatical sins in everyday English. Groucho Marx got laughs with his quip, “One morning I shot an elephant in my pajamas. How he got into my pajamas I’ll never know,” precisely because the most grammatical readings are not always the only reasonable ones. Context allows us to know that elephants rarely hide in pajamas and that another reading is at least reasonable and even much more likely. The Supreme Court has repeatedly instructed us that we must take account of just such possibilities in statutory construction, warning that an interpretation can be “literally permit[ted]” by a statute’s grammar, “quite sensible as a matter of grammar,” and even “the most natural grammatical reading” of the statute, without being the only reasonable interpretation, or even the reading most consistent with Congress’s manifest intent. See Chickasaw Nation,
The Court’s decision in X-Citement Video highlights this fact. The statute at issue there covered any person who “knowingly transports or ships in interstate or foreign commerce by any means including by computer or mails, any visual depiction if (A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and (B) such visual depiction is of such conduct.”
X-Citement Video shows that the possibility of misplaced modifiers is real and that grammatical heuristics can “assuredly be overcome by other indicia of meaning,” Barnhart v. Thomas,
B
Mr. Hinckley (like the dissent) reads subsection (d) in isolation. But just as context helps us ascertain an ambiguity lurking in the vet’s and Marx’s statements, an examination of the context surrounding subsection (d) confirms that Mr. Hinck-ley’s interpretation of the statute is far from the only reasonable one available. In SORNA, Congress expressly stated its intent to establish a “comprehensive” regime for the registration of sex offenders, see 42 U.S.C. § 16901, and virtually every feature of the Act evinces and seeks to further that design. Mr. Hinckley’s interpretation of subsection (d) is irreconcilably at war with that stated purpose and its repeated manifestation throughout the Act, while the court’s interpretation makes sense of and is in harmony with Congress’s direction.
For example, Congress required states with preexisting sex offender registries to meet national standards and prodded states without registries to create them. See 42 U.S.C. §§ 16914(b); 16918; 16919(b); 16922; 16924. Elsewhere in the Act, Congress provided for the creation of a national sex offender registry for use by federal and state investigators nationwide; it also provided for the establishment of a public website allowing citizens to search for sex offenders by zip code. 42 U.S.C.
Still other features of the statute confirm the comprehensive nature of the Act, and its effort to cover existing sex offenders. The term “sex offender” is defined as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1) (emphasis added). The Act thus seems to envision the registry of existing sex offenders, not just those who are convicted after its enactment. And § 16913(a) directs all “sex offender[s]” to register and keep their registration current. No distinction is made between those sex offenders with convictions that predate SORNA and those who are convicted after SORNA. The same is true of § 16913(c), which directs all sex offenders to keep them registration current if they should change their name, residence, employment, or student status. As the Eighth Circuit put it, “[t]he bulk of the statute does not make a distinction between those convicted before the Act and those convicted after. It imposes its requirements on ‘sex offenders’ without qualification.” May,
Mr. Hinckley’s reading of subsection (d) would undo Congress’s express and repeatedly indicated purpose. Absent some action by the Attorney General, those convicted before its enactment would never have to register. Quite literally, a sex offender convicted one day before SOR-NA’s enactment on July 26, 2006 of raping a child, and who thereafter serves twenty years’ imprisonment, would have no obligation to register for the rest of his or her life, even after• leaving prison in 2026. Under Mr. Hinckley’s reading, then, it might well be the late 21 st century before all sex offenders must register. The databases SORNA created for the public and law enforcement would sit idle, taking decades to be of any meaningful value. Such a regime would be better described as cursory than comprehensive.
While Mr. Hinckley’s interpretation does not make sense in light of the statute’s context, the court’s interpretation does. Prior to SORNA, some states did not have sex offender registration requirements as broad as SORNA’s; others had no registries at all. As a result, some individuals who are classified as sex offenders under SORNA were not previously required or able to register under state law. See United States v. Hinen,
Finally, and related to the last point, ambiguity is suggested by the absurd results that Mr. Hinckley’s reading produces. See Lamie v. U.S. Trustee,
First and most obviously, Mr. Hinckley’s reading of subsection (d) requires us to believe that Congress sought simultaneously to achieve two manifestly irreconcilable ends: (1) to create a “comprehensive national system” for the registration of sex offenders, 42 U.S.C. § 16901, and (2) to exempt all existing sex offenders from that comprehensive system. That makes nonsense of the word “comprehensive,” unless Congress’s purpose was to create a comprehensive registration regime for 22nd century sex offenders rather than those of our own time. Certainly, it is no less absurd to think Congress intended such a result than to surmise it wished, as in X-Citement Video, to criminalize the knowing use of the mails without requiring that the defendant have any knowledge that the item mailed contained child pornography.
Beyond that most glaring absurd result, other problems emerge under Mr. Hinck-ley’s reading of § 16913(d) but not the court’s interpretation. By way of example, under Mr. Hinckley’s reading the Attorney General is given the power to specify whether SORNA applies and to prescribe registration rules for all past offenders, not just those unable to comply with subsection (b). See Dissent at 949-50. That is, the Attorney General is given the power to prescribe registration rules for, and even determine whether SORNA should apply to, past offenders who were already registered under SORNA-compliant state registration regimes before SORNA’s passage and thus already automatically in compliance with the federal Act.
II
Given all of these problems — the uncertainty regarding the meaning of subsection (d) even when viewed in isolation, the outright conflict between Mr. Hinckley’s preferred interpretation of that subsection and virtually every other facet of the Act, and the absurd results his interpretation compels — I cannot subscribe to the view that his interpretation is, plainly, the only reasonable reading of the Act. Because § 16913(d) is ambiguous, we are directed to employ traditional tools of statutory interpretation in an effort to discern Congress’s meaning. Doing so readily and definitively resolves the ambiguity against Mr. Hinckley.
A
"While precedent precludes reference to a statute’s title when deciding whether the language of the statute itself is ambiguous, once ambiguity is found the title may be employed to shed light on Congress’s intention. Carter,
B
Lest any doubt remain, subsection (d)’s meaning is confirmed by the Act’s structure and history. Without repeating the structural arguments in Part I.B supra, each underscores that Congress sought a comprehensive regime with meaningful application in today’s world, not in some far distant age, and thus that the problem Congress sought to address in subsection (d) was how to handle the narrow issue of registration for those unable to initially register in compliance with § 16913(b). By contrast, nothing in the Act suggests that Congress sought to allow the Attorney General to decide whether or not the law would have comprehensive effect. Mr. Hinckley points to no such indicia in the Act’s structure, and neither have we located any.
The Act’s legislative history confirms the point. Though the Supreme Court has recognized that legislative history is “often murky, ambiguous, and contradictory,” Exxon Mobil Corp.,
Two additional factors counseling in favor of the interpretation of § 16913(d) offered by the court are the Supreme Court’s teachings to avoid interpretations that produce absurd results or constitutional problems. I’ve already explained and won’t repeat here why Mr. Hinckley’s interpretation risks the absurd result of converting a comprehensive regime into a cursory one. See supra Part I.C. But, I will pause briefly to discuss the potential constitutional difficulty raised by Mr. Hinckley’s interpretation.
Article I of the Constitution vests legislative authority in Congress and “permits no delegation of those powers.” Whitman v. Am. Trucking Assocs.,
Mr. Hinckley’s interpretation is not without some grammatical appeal. But neither is it the only parsing of subsection (d) a reasonable reader might make. Nor are we permitted by the Supreme Court to interpret isolated statutory phrases solely according to grammatical diagrams. We must take account of Congress’s grammar to be sure, but the Court also requires us to take account of surrounding text, structure, and context. Following these directions with respect to our interpretive role, I am convinced that SORNA applies to Mr. Hinckley. I concur.
. To read the title of this subsection is to settle conclusively the debate over congressional intent. But we are instructed not to consider statutory titles unless ambiguity in the statute’s meaning first appears, Carter,
. An analogy advanced by the dissent serves to underscore the point. A statute applying to "humans and to other categories of primates who walk on two legs,” Dissent at 951, surely could be read to suggest two distinct categories (humans and other primates who walk on two legs). But it is hardly beyond the linguistic pale to think that the modifying phrase "who walk on two legs” could restrict the term "humans” to those humans who walk on two legs. Of course, whether such a reading is reasonable could depend on the context of the statute as a whole, as Robinson instructs and Marx illustrates. Does other language in the statute indicate that Congress was regulating conduct that can only be performed by upright walkers? Or does such other language indicate Congress was regulating a subject more generally applicable to humans and two-legged primates? The plainness or ambiguity of a statute depends not just on the grammar of the single isolated sentence but, again, on “the context in which that language is used, and the broader context of the statute as a whole.” Robinson,
. The dissent claims that its interpretation is neither “irrational [n]or counterproductive”
Alternatively, the dissent argues that interpreting the statute to exempt all past offenders is no more inconsistent with SORNA's comprehensive scheme than this court’s holding in United States v. Husted,
. In fact, the Supreme Court has previously suggested that it will not interpret a statute to produce an absurd result even if the statute’s language is un ambiguous. See, e.g., Hartford Underwriters Ins. Co. v. Union Planters Bank,
. See United States v. Gagnon,
. The Attorney General himself has discussed many of these problems and likewise concluded that subsection (d) is ambiguous and best understood as applying to all sex offenders even in the absence of any action by him. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8896. Whether or not the Attorney General’s determination is entitled to deference in the quasi-criminal, quasi-regulatory context of assessing the scope of the registration requirement, see, e.g., Gonzales v. Oregon,
. Senator Biden said, "[TJhere are over 550,-000 offenders nationwide, and more than 20 percent of them are unaccounted for.... [Tjhis means there are as many as 150,000 of these dangerous sex offenders out there, individuals who have already committed crimes and may, unless we do something, continue to jeopardize the most vulnerable among us.” 152 Cong. Rec. S8012, 8014. See also 152 Cong. Rec. H5705, 5722 (Rep. Sensenbrenner: "There are over a half million sex offenders in the United States and up to 100,000 offenders are unregistered and their locations [are] unknown to the public and law enforcement.”). Senator Hatch added that "[l]aws regarding registration for sex offenders have not been consistent from State to State[;] now all States will lock arms and present a unified front in the battle to protect children.” 152 Cong. Rec. S8012, 8013 (daily ed. July 20, 2006).
. Because, after consideration of the "text, structure, and history" of SORNA, "the Government’s position is unambiguously correct,” United States v. Granderson,
Dissenting Opinion
dissenting.
The crucial question in this case is the interpretation of 42 U.S.C. § 16913(d), which the majority finds “ambiguous.” I do not, and do not believe that there is an alternative reading of the language that permits us to affirm. § 16913(d) reads:
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
The majority holds that the subchapter applied to prior offenders even before the Attorney General exercised his authority to specify whether it would do so, and thus presumably even if the Attorney General had never done so. This interpretation effectively writes the first clause of § 16913(d) out of the statute. That is not a tenable interpretation.
The section has two clauses. The first clause says, unambiguously, that the Attorney General has the authority to specify the requirements of the subchapter — all of SORNA
[Subsection (d) ] unambiguously delegates authority to the Attorney General to determine SORNA’s retroactive application — that is, in the words of the statute, the “applicability” of the registration requirement. Without such a determination from the Attorney General, the statute had no applicability to previously convicted sex offenders like [the defendant]
The second clause gives the Attorney General quite a different authority: to prescribe rules for the registration both of those whose offenses predate SORNA and also for “other categories of sex offenders” who, for whatever reason, are unable to comply with the initial registration requirements of SORNA. This clause also does not present any ambiguity. Whereas the Attorney General has the authority to
There is nothing irrational or counterproductive about this straightforward interpretation. SORNA’s registration requirement applies to all sex offenders, whether their offense was committed before or after the effective date. But the criminal penalties of the Act are triggered by the offender’s travel in interstate commerce. 18 U.S.C. § 2250(a)(1)(B). This Court has held, and the majority does not dispute, that offenders who completed their travel in interstate commerce prior to July 27, 2006 face no criminal penalties for failure to register. United States v. Husted,
The majority follows the Eighth Circuit in United States v. May,
An additional possible meaning of subsection (d) is that past offenders (“offenders convicted before the enactment of this Act”) are included within (and not a separate group from) the broader category of “sex offenders who are unable to comply with subsection (b),” and it is only as to those “sex offenders who are unable to comply with subsection (b)” that the Attorney General was given authority under subsection (d) to issue clarifying regulations. In light of this ambiguity, the title of subsection (d) should be considered. Once the title is considered, the ambiguity in the one sentence text that follows the descriptive title is resolved, and it becomes clear that subsection (d) only applies to initial registration.
Beasley,
The first problem with this analysis is that the second clause cannot plausibly be given this alternative reading. The second clause of subsection (b) states that the Attorney General’s authority to prescribe rules for registration is applicable to “such offenders” (meaning past offenders) and “other categories of sex offenders” who are unable to comply with initial registration requirements. “Other categories of sex offenders” plainly means types of sex offenders not encompassed within the former category, that is, those who are not past offenders. To read the statute as subsuming the set of past offenders into the set denominated “other categories of sex offenders” ignores the key term “other,” which indicates that the two categories are distinct. It would be like interpreting a statute that applies to “humans and to other categories of primate who walk on two legs” as excluding paraplegic humans.
The second, and even more glaring, problem is that this interpretation produces a reading of the first part of subsection (b) flatly inconsistent with its language. In effect, the Beasley court has rewritten the first clause of subsection (d) to add two phrases to the statute which Congress did not place there. Those added phrases appear in brackets: “The Attorney General shall have the authority to specify the applicability of the requirements of [subsection (b) of] this sub-chapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction [only if they are unable to comply with subsection (b) of this section].” In my opinion, neither of the bracketed additions is warranted or permitted by the statutory language. The first clause unmistakably gives the Attorney General authority to “specify the applicability of the requirements of this subchapter ” to past offenders. The “sub-chapter” is the entirety of SORNA — not
I conclude that there is no ambiguity in subsection (d), and the alternative reading proposed by the Beasley court and adopted by the majority is untenable. It follows that, because the Attorney General had not promulgated any rules about the retroactivity of SORNA prior to Mr. Hinckley’s conviction, Mr. Hinckley did not violate its registration requirements. I therefore respectfully dissent.
. SORNA is found in Title 42 of the United States Code. Chapter 151 of Title 42 concerns "Child Protection and Safety.” Subchapter I of Title 42 is "Sex Offender Registration and Notification,” i.e., SORNA.
. Judge Gorsuch, in concurrence, relies heavily on an analogy involving dogs and coyotes. Gorsuch concurrence, at 941. The force of his analogy, however, arises entirely from the inherent unlikelihood that veterinarians would advertise to perform surgery on wild coyotes. There is no such inherent implausibility in Congress investing the Attorney General with discretion to determine whether and how this statute should apply to prior offenders. A precise analogy to the statute would be a veterinarian’s advertisement promising to "perform surgery on canines under 100 pounds, and to provide necessary medication for any such canines and for other categories of canines who meet [certain specified qualifications].” There is no ambiguity. All canines under 100 pounds may receive both surgery and necessary medication; other categories of canine may receive medication only if they meet the specified qualifications. There is no linguistic justification to limit surgeries on canines under 100 pounds to those who also meet the qualifications applicable to the "other categories” of canines.