UNITED STATES of America, Plaintiff-Appellee, v. Shawn Lloyd HINCKLEY, Defendant-Appellant.
No. 07-7107.
United States Court of Appeals, Tenth Circuit.
Dec. 9, 2008.
550 F.3d 926
REVERSED and REMANDED.
Christopher Wilson, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, on the brief), Muskogee, OK, for Plaintiff-Appellee.
Robert Ridenour, Assistant Federal Public Defender (Julia L. O‘Connell, Acting Federal Public Defender and Barry L. Derryberry, Research & Writing Specialist of the Office of the Federal Public Defender, on the brief), Tulsa, OK, for Defendant-Appellant.
Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.
PAUL J. KELLY, Circuit Judge.
Defendant-Appellant Shawn Lloyd Hinckley appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act (“SORNA“),
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 sheriff‘s 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 sheriff‘s office.
On March 14, 2007, federal authorities indicted Mr. Hinckley on one count of violating the Sex Offender Registration and Notification Act (“SORNA“),
Discussion
The issues in this case involve statutory interpretations of and constitutional challenges to SORNA. We review such issues de novo, “interpret[ing] the words of the statute in light of the purposes Congress sought to serve.” Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1233–34 (10th Cir. 2006) (quoting Hain v. Mullin, 436 F.3d 1168, 1176 (10th Cir. 2006) (en banc)); see also Bd. of County Comm‘rs, Fremont County, Colorado v. U.S. E.E.O.C., 405 F.3d 840, 847 (10th Cir. 2005). We begin with the language of the statute and “read the words of the statute ‘in their context and with a view to their place in the overall statutory scheme.‘” Wright, 451 F.3d at 1234 (quoting Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33 (2000)).
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 SORNA 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-07-18-RAW (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.
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, 528 F.3d 852 (11th Cir. 2008) (per curiam), and May, 535 F.3d 912. While both cases involve a slightly different fact pattern than Mr. Hinckley‘s, their analysis is relevant. Madera involved a defendant who traveled in interstate commerce prior to SORNA‘s enactment in July 2006, and was arrested, prosecuted, and convicted prior to the Attorney General‘s issuance of the clarifying Interim Rule. Madera, 528 F.3d at 854. May is more analogous to the instant fact pattern, in that it involved a defendant who traveled in interstate commerce after SORNA‘s enactment in July 2006, failed to register in the new jurisdiction, and was arrested and convicted after promulgation of the Interim Rule. May, 535 F.3d at 915. The factual background now before us involves a defendant who traveled in interstate commerce after SORNA‘s enactment in July 2006, failed to register in the new jurisdiction until January 2007, and was arrested and convicted after promulgation of the Interim Rule.2
In Madera, the court relied on the reasoning in United States v. Kapp, 487 F.Supp.2d 536 (M.D. Pa. 2007), and concluded that subsection (d) comprises two separate clauses. “The first gives the Attorney General authority to determine whether SORNA applies retroactively to all sex offenders, and the second gives the Attorney General authority to promulgate rules regarding initial registration.” Madera, 528 F.3d at 858. Essentially, the court reads subsection (d) as “contemplat[ing] two groups of sex offenders: (1) past offenders and (2) those unable to initially register under subsection (b).” United States v. Beasley, No. 1:07-CR-115-TCB, 2007 WL 3489999, at *5 (N.D. Ga. Oct. 10, 2007). The first clause, “which addresses SORNA‘s applicability, only covers the first group: past offenders. Therefore, when the two clauses are read in conjunction, the first clause ... unambiguously provides the Attorney General with authority to define the retrospective applicability of SORNA‘s registration requirements to past offenders.” Id. (quoting Kapp, 487 F.Supp.2d at 542). Under this interpretation, sex offenders convicted before July 27, 2006, cannot be held to violate SORNA for acts committed prior to the issuance of the Attorney General‘s Interim Rule on retroactivity. See United States v. Gill, 520 F.Supp.2d 1341, 1349 (D. Utah 2007) (holding that SORNA did not apply to a defendant who failed to register in the interim period between enactment and issuance of the Interim Rule); United States v. Patterson, No. 8:07CR159, 2007 WL 2904099 (D. Neb. Sept. 21, 2007); United States v. Muzio, No. 4:07CR179, 2007 WL 2159462, at *5 (E.D. Mo. July 26, 2007) (finding “no ambiguity” in the statutory language).
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, 528 F.3d at 857. In adopting this interpretation, the court rejected the argument urged by the government that subsection (d) “addresses only those offenders unable to comply with the timing requirements for initial registration under [subsection (b)]” and limits the Attorney General‘s authority to promulgating rules pertaining to those sex offenders who are literally “unable to comply” with subsection (b)‘s initial registration requirements due to the age of their convictions. Id. at 858; United States v. Roberts, No. 6:07-CR-70031, 2007 WL 2155750 (W.D. Va. July 27, 2007).
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
In support, the May court relied on the analysis in Beasley, 2007 WL 3489999. In that case, the defendant traveled in interstate commerce in January 2007, failed to register in his new jurisdiction, and was arrested for violating SORNA on March 14, 2007, after issuance of the Interim Rule. The court concluded that subsection (d) was ambiguous “when considered in isolation and out of context,” and stated that “[a]n additional possible meaning of subsection (d) is that past offenders ... 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
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., 550 U.S. 81, 127 S.Ct. 1534, 1546 (2007). Moreover, we find this interpretation more convincing than alternative interpretations in light of the Act‘s purpose and history. As the Interim Rule explained, “The SORNA reforms are generally designed to strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public, and to eliminate potential gaps and loopholes under the pre-existing standards by means of which sex offenders could attempt to evade registration requirements or the consequences of registration violations.” 72 Fed. Reg. at 8895. Reading subsection (d) to exclude all previously convicted sex offenders from SORNA‘s requirements would, as the Interim Rule explained, exempt “virtually the entire existing sex offender population.” Id. at 8896. Such a result would directly contradict the Act‘s stated purpose of establishing “a comprehensive national system for the registration of [sex offenders and offenders against children].”
“[S]tatutory [a]mbiguity is a creature not [just] of definitional possibilities but [also] of statutory context.” Id. at 1546 (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994)) (citing Brown & Williamson, 529 U.S. at 132-33). We read a statute as “ambiguous” when it is “capable of being understood by reasonably well-informed persons in two or more different senses.” McGraw v. Barnhart, 450 F.3d 493, 498 (10th Cir. 2006) (quoting United States v. Quarrell, 310 F.3d 664, 669 (10th Cir. 2002)). If the court finds the statute ambiguous, the court then looks beyond the plain text to resolve the ambiguity, examining legislative intent, overall statutory construction, and relevant subtitles.4
See U.S. Nat‘l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) (examining the statutory background in addition to the statute‘s structure, title, and the language and subject matter of the section in question and the surrounding sections); Zuni Pub. Sch. Dist. No. 89, 127 S.Ct. at 1541-42 (examining the statute‘s subject matter, history, and purpose). Because we see ambiguity in the statute, “[t]hat fact requires us to look beyond the language” to the construction of the statute, the context and subtitle of the subsection, and the Attorney General‘s Interim Rule comments. Zuni Pub. Sch. Dist. No. 89, 127 S.Ct. at 1546.
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, 2008 WL 2184118, at *11-12 (D. Neb. May 23, 2008) (Memorandum and Order), which held that subsection (a), not subsection (d), made a defendant‘s obligation to register a federal requirement. Finding ambiguity in subsection (d), the Zuniga court analyzed SORNA‘s overall statutory scheme and Congress‘s primary motivation in enacting it. Not only did that court declare that subsection (a) “unambiguously requires” every sex offender to register, but it also found that “it was Congress‘s desire to create a comprehensive and uniform registration system among the states to ensure
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 ex-
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, 508 U.S. at 458, subsection (d)‘s title is “supporting evidence” for the inference that the Act‘s overall structure and purpose did not intend to exclude all previously convicted sex offenders from the Act‘s registration requirements. See also Carter v. United States, 530 U.S. 255, 277 n. 2 (2000) (Ginsburg, J., dissenting) (“A statute‘s meaning can be elusive, and its title illuminating, even where a court cannot pinpoint a discrete word or phrase as the source of the ambiguity.“); INS v. Nat‘l Ctr. for Immigrants’ Rights, Inc., 502 U.S. 183, 189 (1991) (“[T]he title of a statute or section can aid in resolving an ambiguity in the legislation‘s text.“).
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., 502 U.S. 215, 221 (1991) (following “the cardinal rule that a statute is to be read as a whole, since the meaning of statutory language, plain or not, depends on context” (internal citation omitted)); see also Nat‘l Bank of Or., 508 U.S. at 454 (“[T]ext consists of words living a communal existence, ... the meaning of each word informing the others and all in their aggregate taking their purport from the setting in which they are used.” (internal quotation marks and alteration omitted)).
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.7 While Mr. Hinckley‘s indictment, which encompasses dates spanning March 2004 through January 2007 may be overbroad,8 his failure to register in Oklahoma prior to
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, 450 U.S. 24, 28 (1981), 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.‘” (quoting Cummings v. Missouri, 4 Wall. 277, 325-26 (1866)). Mr. Hinckley further relies upon Calder v. Bull, 3 U.S. 386, 390 (1798), which prohibits under the Ex Post Facto Clause any law that criminalizes any action “innocent when done” or increases the punishment of a crime beyond the penalty in place at the time the crime was committed. Collins v. Youngblood, 497 U.S. 37, 42 (1990) (quoting Calder, 3 U.S. at 390). Two elements must be satisfied to find that a law violates the Ex Post Facto Clause: (1) “it must be retrospective, that is, it must apply to events occurring before its enactment,” and (2) “it must disadvan-
The district court did not address whether SORNA violates the Ex Post Facto 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
1. Punishment for Prior Acts
Mr. Hinckley first argues that his indictment for failure to register under
The Supreme Court, in Toussie v. United States, 397 U.S. 112, 115 (1970), found that an offense is “continuing” when indicated by the “explicit language of the substantive criminal statute,” or when “the nature of the crime involved is such that Congress must assuredly have intended that it be treated as a continuing one.” An interpretation of the sex offender registration requirement that defines it in any way other than as a continuing offense would result in absurdity. As the Western District of Virginia points out, “It would be illogical for members of Congress to express concern that thousands of sex offenders who were required to register under state law were evading those registration requirements and then exempt those same offenders from SORNA.” Hinen, 487 F.Supp.2d at 753.
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,
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, 521 U.S. 346, 361 (1997)). The analysis requires an inquiry into the legislative intent, including the statute‘s manner of codification and its enforcement procedures, as well as the statute‘s effect. See Smith, 538 U.S. at 93-106. The Supreme Court has held that a legislative label of “civil” is insufficient to render a statute civil in nature, and the Court has stated that it will reject the “civil” label upon a showing of the “clearest proof” that “the statutory scheme [is] so punitive either in purpose or effect as to negate [the State‘s] intention’ to deem it ‘civil.‘” Hendricks, 521 U.S. at 361 (quoting United States v. Ward, 448 U.S. 242, 248-49 (1980)) (alteration in original).
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.”
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, 521 U.S. at 361 (quoting Ward, 448 U.S. at 248-49); see also May, 535 F.3d at 919-20. SORNA clearly uses criminal penalties under
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 SORNA 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, 535 F.3d at 921. Accordingly, we find no due process violation.
In arguing that he had no notice of his obligation to register, Mr. Hinckley relies on United States v. Smith, 528 F.Supp.2d 615 (S.D.W.Va. 2007). In Smith, the district court held that, because the Attorney General did not promulgate the Interim Rule until February 2007, the government failed to provide the defendant adequate notice of his obligations. Id. at 620. However, the majority of courts have concluded that notice of a defendant‘s obligations under state law is sufficient to satisfy the Due Process Clause‘s requirements. See May, 535 F.3d at 921; see also United States v. Gould, 526 F.Supp.2d 538, at 545 n. 8 (D.Md. 2007) (collecting cases). We agree. Moreover, Mr. Hinckley‘s reliance on the Proposed Guidelines is misplaced. The Guidelines simply discuss examples of situations where states would need to provide additional information on SORNA‘s requirements to offenders. See Proposed Guidelines, 72 Fed. Reg. 30,210, 30,228 (May 30, 2007) (discussing SORNA‘s retroactivity); see also Gould, 526 F.Supp.2d at 545. In light of Mr. Hinckley‘s conviction for failure to register in 2004 and his subsequent acknowledgment of his duty to register in Oklahoma, we find that Mr. Hinckley had adequate notice of his obligation to register as a sex offender.
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, 2007 WL 2119895 at *3 (S.D.N.Y. July 23, 2007), which held that notice of a state law having lesser penalties differs from having actual notice of a much harsher federal law. However, because Mr. Hinckley‘s arrest for this offense occurred well after SORNA‘s enactment in July 2006, we presume that he was aware of the law. See Cheek v. United States, 498 U.S. 192, 199 (1991)
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, 355 U.S. 225, 227 (1957), which held that a registration scheme violates due process if “applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge.” We find Lambert inapplicable because Mr. Hinckley, just like the defendant in May, did have knowledge of his duty to register under similar state and federal provisions. In addition, Mr. Hinckley claims that SORNA‘s Proposed Guidelines require states to pass implementing legislation, and that Oklahoma‘s failure to do so renders him “unable” to register in that state. On the contrary, the Guidelines state that, while SORNA does set “minimum standards for jurisdictions’ registration and notification programs,” it does not require statutory implementation. 72 Fed. Reg. at 30,213-14. The Guidelines continue on to state that the agency so delegated will assess the “totality of a jurisdiction‘s rules” to determine whether a state is in compliance with SORNA, and that a failure to properly implement SORNA results in “a 10% reduction of Federal justice assistance funding,” not in an excuse for an offender who has failed to register. Id. at 30,212-13. Oklahoma clearly had a registration scheme in effect prior to Mr. Hinckley‘s arrest, Mr. Hinckley knew of his obligation to register, and he failed to comply. He therefore not only had notice of his obligations but also could have registered in Oklahoma, which would have made him compliant with both state and federal law.
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
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, 535 F.3d at 921-22 (rejecting defendant‘s Commerce Clause arguments).
Essentially, “the Commerce Clause allows ‘Congress to keep the channels of interstate commerce free from immoral and injurious uses.‘” United States v. Patton, 451 F.3d 615, 621 (10th Cir. 2006) (quoting Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)). In enacting SORNA, Congress‘s aim was to create a uniform nationwide registration system to protect the public. By requiring that a sex offender travel in interstate commerce before finding a registration violation, SORNA remains well within the constitutional boundaries of the Commerce Clause. Because Mr. Hinckley failed to keep his registration current where he lived and failed to notify authorities of his change in employment status during the dates alleged, while also satisfying SORNA‘s jurisdictional requirement, we find that he has violated SORNA under
AFFIRMED.
GORSUCH, Circuit Judge, 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., 519 U.S. 337, 340 (1997). But if an ambiguity lurks in the statute‘s wording, or if the statute‘s wording leads to irrational results, we are instructed by the Supreme Court to consult additional interpretive tools, including the statute‘s title, its history and purpose, and canons of construction, in an attempt to ascertain and give effect to Congress‘s meaning. See, e.g., Exxon Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546, 568 (2005); Carter v. United States, 530 U.S. 255, 267 (2000). Applying these instructions, I cannot help but conclude that the statute before us,
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, 528 F.3d 852 (11th Cir. 2008). Second, as the court and the Eighth Circuit suggest, subsection (d) might be read as embodying a single command: that the Attorney General shall determine the applicability of SORNA and adopt any necessary registration rules for those sex offenders unable to comply with the initial registration requirements of subsection (b). See Majority at 932; United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008). The fact that the first construction is not the only one a reasonable reader could reach is indicated by several features of the statute.
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
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, 534 U.S. at 90; United States v. X-Citement Video, Inc., 513 U.S. 64, 68-69 (1994); Nobelman v. Am. Savings Bank, 508 U.S. 324, 330-331 (1993). After all, judges are not charged with grading Congress‘s grammar but with applying laws in conformance with Congress‘s manifest purpose.
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.” 513 U.S. at 68. The question presented to the Court was whether the word “knowingly” modified only the surrounding verbs (i.e., transports and ships) or whether it also modified the phrase “visual depiction involv[ing] the use of a minor engaging in sexually explicit conduct.” Despite conceding that, under the most natural grammatical reading, “knowingly” would only modify the surrounding
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, 540 U.S. 20, 26 (2003). Accordingly, when presented with a statute with a potential misplaced modifier or clause that might apply to more than just one antecedent, we must consult the surrounding context and structure before reflexively enforcing any construction of the statute. See X-Citement Video, 513 U.S. at 68; Nobelman, 508 U.S. at 331; see also FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000) (“The meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.“).2
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. Hinckley‘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
For example, Congress required states with preexisting sex offender registries to meet national standards and prodded states without registries to create them. See
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.”
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 SORNA‘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 21st 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, 487 F.Supp.2d 747, 751-52 (W.D.Va. 2007). Aware that these individuals, through no fault of their own, could not initially register under subsection (b), which requires initial registration before an offender completes his or her prison sentence or 3 days after being sentenced to probation, Congress had to make provision for the registration of such sex offenders. The court‘s reading is entirely consistent with this necessity. It reads subsection (d) simply (but significantly) as authorizing the Attorney General to determine whether and how to provide for the registration of those sex offenders—not as suggesting a massive additional limitation on the Act‘s compass. As the court in Roberts explained, “it is clear from the context” of the statute as a whole “that [Congress‘s] intent was not to exempt all sex offenders convicted before July 2006 from registration requirements, but rather to avoid the obvious injustice of requiring such offenders to do the impossible of registering within 3 days of their years-old convictions.” 2007 WL 2155750 at *2.3
C
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, 540 U.S. 526, 536 (2004) (acknowledging that if plain meaning leads to absurd results, court may be required to treat the text as ambiguous).4
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,
Beyond that most glaring absurd result, other problems emerge under Mr. Hinckley‘s reading of
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
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, 530 U.S. at 267; see also supra n. 1. Here, the title of
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
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., 545 U.S. at 568, the Court itself has repeatedly told us to employ such history when seeking to resolve an ambiguous text, see, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 508-09 (1989). And, happily, the legislative history in this case is neither murky, ambiguous, nor contradictory. While Judge Harold Leventhal famously once compared arguments from legislative history to “entering a crowded cocktail party and looking over the heads of the guests for one‘s friends,” Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring), the legislative history before us is, in Judge Leventhal‘s vernacular, like a cocktail party where only friends are in attendance. That is, the bill‘s sponsors consistently and emphatically expressed displeasure with the existing state-by-state patchwork of sex offender laws and stated their intention to replace them with a uniform, comprehensive federal registration statute. 152 Cong. Rec. S8012, 8012-31 (July 20, 2006); 152 Cong. Rec. H5705, 5722-5731 (July 25, 2006). The bill‘s sponsors also expressly sought for the new centralized regime to cover the approximately 500,000 sex offenders registered under various and patchwork state regimes at the time of the bill‘s enactment, as well as the estimated 100,000 entirely unregistered and unaccounted for offenders.7 Given these statements, it beggars credulity to think that SORNA might have been intended by the authors of the legislation to exempt from registration every single sex offender at the time of its enactment.
C
Two additional factors counseling in favor of the interpretation of
Article I of the Constitution vests legislative authority in Congress and “permits no delegation of those powers.” Whitman v. Am. Trucking Assocs., 531 U.S. 457, 472 (2001). That is why, when Congress delegates authority to the executive branch, the Supreme Court requires it to provide “an intelligible principle to which the person or body authorized to [act] is directed to conform.” Id. (quoting J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Under Mr. Hinckley‘s reading, however, the Attorney General has, as the Eleventh Circuit conceded, “unfettered discretion to determine both how and whether SORNA [is]
***
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.
McCONNELL, Circuit Judge, dissenting.
The crucial question in this case is the interpretation of
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
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 ¹—to those who were convicted of a sex offense before the date of enactment (July 27, 2006), or its implementation in a particular jurisdiction. This clause provides that the Attorney General “shall” have the authority to “specify the applicability” of SORNA to past offenders. Until the Attorney General does so, the Act applies only prospectively, and does not apply to past offenders like Mr. Hinckley. As the district court explained in United States v. Gill, 520 F.Supp.2d 1341, 1347 (D.Utah 2007):
[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.
The majority follows the Eighth Circuit in United States v. May, 535 F.3d 912, 918, which in turn adopted the reasoning of United States v. Beasley, No. 1:07-CR-115-TCB, 2007 WL 3489999 (N.D.Ga. Oct. 10, 2007). The Beasley court began its analysis by purporting to find an ambiguity in the second clause of subsection (d). According to the Beasley court, it is linguistically possible to read the second clause of subsection (d) as providing that past offenders “are included within (and not a separate group from) the broader category of ‘sex offenders who are unable to comply with subsection (b).‘” Id. at *6. It then read this supposed ambiguity back into the first clause of subsection (d) and concluded that the Attorney General‘s authority to determine retroactivity applies only to past offenders who were unable to comply with the initial registration requirements at the time of their offense:
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, 2007 WL 3489999, at *6 (footnotes and citations omitted).
The first problem with this analysis is that the second clause cannot plausibly be given this alternative reading. The second clause of subsection (d) 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 (d) 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 subchapter 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 “subchapter” 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.
UNITED STATES of America, Plaintiff-Appellee, v. Jeremiah WEST, Defendant-Appellant.
No. 06-4284.
United States Court of Appeals, Tenth Circuit.
Dec. 10, 2008.