United States v. MorganUnited States v. Morgan
Michelle M. Peterson, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.
MEMORANDUM OPINION
ELLEN SEGAL HUVELLE, United States District Judge
A nine-count indictment charges defendant Morgan with failure to register as a sex offender, in violation of
BACKGROUND
According to the government, defendant was convicted of Rape while Armed in 1991 in the Superior Court for the District
When Congress passed SORNA, it directed that “[t]he Attorney General shall have the authority to specify the applicability of [SORNA] to sex offenders convicted before [its] enactment.”
The indictment charges defendant with failure to register, crimes of violence while failing to register, and felonies while required to register, all based on his alleged conduct between 2015 and 2016. (Indictment at 1-5.) According to the indictment, defendant was subject to registration requirements as a result of his 1991 conviction for Rape while Armed. (Id. at 2.) Defendant has moved to dismiss all counts that have a registration requirement as an element. (Def.’s Mot. at 1.) First, he argues that the Attorney General’s attempts to specify the application of SORNA to pre-Act offenders violated the Administrative Procedure Act. (Id. at 4-7.) Second, he contends that Congress violated the non-delegation doctrine when it gave the Attorney General the authority to make SORNA retroactive. (Id. at 7-9.) Third, he maintains that the Ex Post Facto Clause prohibits applying SORNA’s registration requirements and criminal penalties to offenders who committed their sex offenses before the enactment of SORNA. (Id. at 9-17.) Finally, he claims that criminalizing failure to register exceeded Congress’s powers under the Commerce Clause. (Id. at 17-19.)
ANALYSIS
I. ADMINISTRATIVE PROCEDURE ACT
Relying on the D.C. Circuit’s recent opinion in Ross, 848 F.3d 1129, defendant asserts that none of the Attorney General’s attempts to apply SORNA to pre-Act offenders complied with the Administrative Procedure Act (APA). (Def.’s Mot. at 4-7.) This Court disagrees. Ross invalidated only the 2007 Interim Rule and the 2008 Final Guidelines. The reasoning in Ross does not extend to the 2010 Final Rule, which predated the conduct charged in this case.
In Ross, the D.C. Circuit held that the government could not prosecute a defendant
Contrary to defendant’s argument, the reason for invalidating the 2008 Final Guidelines does not apply to the 2010 Final Rule. In dicta, the Ross Court rejected the same argument that defendant now makes, explaining that the Final Rule “did recognize [the Attorney General’s] authority, albeit reluctantly and contingently: ‘Congress at the very least placed it within the Attorney General’s discretion to apply SORNA’s requirements to [pre-SORNA offenders] if he determines (as he has) that the public benefits of doing so outweigh any adverse effects.’
II. NON-DELEGATION DOCTRINE
Next, defendant contends that Congress violated the non-delegation doctrine when it directed that “[t]he Attorney General shall have the authority to specify the applicability of [SORNA] to sex offenders convicted before [its] enactment,”
Although the D.C. Circuit has not decided the non-delegation question, every other circuit has addressed it and has determined that it was constitutional for Congress to delegate the authority to the Attorney General to decide whether SORNA should apply to pre-Act offenders. Ross, 848 F.3d at 1131 (citing United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014), rev’d on other grounds, — U.S. —, 136 S.Ct. 1113, 194 L.Ed.2d 324 (2016); United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014); United States v. Cooper, 750 F.3d 263, 271-72 (3d Cir. 2014); United States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir. 2013); United States v. Kuehl, 706 F.3d 917, 920 (8th Cir. 2013); United States v. Sampsell, 541 Fed. Appx. 258, 259-60 (4th Cir. 2013); United States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman, 591 F.3d 83, 92-93 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 262-64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1212-14 (11th Cir. 2009)). In this district, Judge Bates has also rejected a defendant’s non-delegation challenge. United States v. Cotton, 760 F.Supp.2d 116, 135 (D.D.C. 2011).
This Court agrees that the SORNA delegation to the Attorney General satisfies the test that the Supreme Court has set out to evaluate congressional delegations. “So long as Congress ‘shall lay down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform, such legislative action is not a forbidden delegation of legislative power.’” Mistretta v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)). The Supreme Court “has deemed it ‘constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.’” Id. at 372-73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946)). In applying this test, the Court has been “driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Id. at 372. Mindful of this principle, the Court has not struck down a statute under the non-delegation doctrine since 1935. Cooper, 750 F.3d at 268-70.
The SORNA delegation easily satisfies the second and third prongs of the Supreme Court’s three-part test. Congress specified that the Attorney General would have the delegated authority,
Applying the first prong of the test—that Congress has “clearly delineate[d] the general policy” to guide the delegation, Mistretta, 488 U.S. at 372-73—is more challenging.
This Court agrees with the Third Circuit’s appraisal of
Justice Scalia has pointed out that the SORNA delegation “seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.” Reynolds, 565 U.S. at 450 (Scalia, J., dissenting). Taking a step further, then-Judge Gorsuch argued in a dissenting opinion that the SORNA delegation violates the non-delegation doctrine because “[i]f the separation of powers means anything, it must mean that the prosecutor isn’t allowed to define the crimes he gets to enforce.” United States v. Nichols, 784 F.3d 666, 668 (2015) (Gorsuch, J., dissenting from denial of rehearing en banc). He would hold delegations in the criminal context to a higher standard. Id. at 672-76. It is true that the Supreme Court once said it “need not resolve” whether “greater congressional specificity
III. EX POST FACTO CLAUSE
Because the registration-related counts against defendant charge crimes or sentencing enhancements that did not exist until 2006, but that rely upon defendant’s sex offense conviction from 1991, defendant argues that those counts violate the Ex Post Facto Clause. (Def.’s Mot. at 9-17.) The Ex Post Facto Clause,
A. Failure to Register (18 U.S.C. § 2250(a) )
In Count One, the government charges defendant with violating
There is a consensus among circuits that prosecution under
First, the Court will address whether the registration requirement is punitive. The foundation for this analysis is the Supreme Court’s decision in Smith, where it held that Alaska’s sex offender registration requirement was not punitive and therefore did not violate the Ex Post Facto Clause. 538 U.S. 84. Under the Alaska Sex Offender Registration Act, offenders convicted of a single nonaggravated sex crime must register annually for 15 years, while those with aggravated or multiple offenses must register quarterly and for life. Id. at 90. Offenders’ names, photographs, addresses, crimes, and other information are to be available to the public, which Alaska has chosen to accomplish by publishing the information on the internet. Id. at 91. To determine whether the Alaska statute had a punitive effect, the Supreme Court identified the following relevant factors: “whether, in its necessary operation, the regulatory scheme: has been regarded in our history and traditions as a punishment; imposes an affirmative disability or restraint; promotes the traditional aims of punishment; has a rational connection to a nonpunitive purpose; or is excessive with respect to this purpose.” Id. at 97. The Court concluded that “[o]ur system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment,” and the periodic reporting requirement (which did not mandate in-person appearances) did not impose an affirmative disability. Id. at 98, 101. Most significantly, the Court explained, the statute had the nonpunitive purpose of advancing public safety and a rational connection to that nonpunitive purpose. Id. at 102-03.
Other courts have concluded that they are “unable to find any meaningful distinctions” from the Alaska statute that would render SORNA’s registration requirement punitive. Leach, 639 F.3d at 773; see Parks, 698 F.3d at 6; Cotton, 760 F.Supp.2d at 136-38. Defendant argues that SORNA is punitive because it requires publication on the internet; directs states to notify schools, public housing agencies, and any organization that requests notification; mandates in-person reporting; and provides for a penalty of up to ten years for a first-time failure to report. (Def.’s Mot. at 14-16.) Based on the Supreme Court’s reasoning in Smith, however, none of these differences makes SORNA’s registration requirement punitive. Although Alaska’s statute did not mandate publication on the internet, Alaska’s practice was to publish on the internet, and the Smith Court held that internet publication was not punitive. Smith, 538 U.S. at 99. Smith did not discuss notification of schools and other organizations, but it declared that “dissemination of truthful information in furtherance of a legitimate governmental objective” is not punishment. Id. at 98. In-person reporting is an inconvenience, but so is any registration requirement. Given that occasional in-person
Of course, there is no doubt that a prison sentence of up to ten years for failure to register is punitive, and therefore, there could still be an ex post facto problem if the punishment for failure to register is retroactive. However, other circuits have uniformly concluded that having a pre-SORNA conviction does not make the punishment for failure to register retroactive. See, e.g., Elkins, 683 F.3d at 1045; Felts, 674 F.3d at 605-06; Leach, 639 F.3d at 772-73; May, 535 F.3d at 920. “A sex offender violates the statute when, at any time after SORNA was enacted, he travels in interstate commerce and then fails to register. Because the law targets only the conduct undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post Facto Clause.” Leach, 639 F.3d at 773 (citation omitted). “The statute does not punish an individual for previously being convicted of a sex crime.” May, 535 F.3d at 920. “SORNA provides for a conviction for failing to register; it does not increase the punishment for the past conviction.” Felts, 674 F.3d at 606.
The reasoning that courts have used to conclude that punishment for failure to register is not retroactive is the same reasoning that courts, including the D.C. Circuit, have employed in the analogous situation of ex post facto challenges to felon-in-possession statutes. Felons whose convictions predated the enactment of felon-in-possession crimes have argued that prosecuting them for their possession violates the Ex Post Facto Clause. But the Seventh Circuit has responded that “[s]ections
Because other circuits have held that
In sum, prosecuting defendant under
B. Crime of Violence while Failing to Register (18 U.S.C. § 2250(d) )
Under
Applying
C. Felony while Required to Register (18 U.S.C. § 2260A )
In Counts Three, Six, and Nine, the government charges defendant under
In United States v. Hardeman, 704 F.3d 1266, 1268-69 (9th Cir. 2013), the Ninth Circuit held that application of
The constitutionality of applying a recidivist enhancement to pre-enactment offenders is firmly established. In Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948), the Supreme Court held that such recidivist enhancements do not violate the Ex Post Facto Clause. “The sentence as a fourth offender or habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one.” Id. at 732. Since Gryger, the Court has reiterated that “[e]nhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction.” Nichols v. United States, 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994). “When a defendant is given a higher sentence under a recidivism statute ... 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s ‘status as a recidivist.’” United States v. Rodriquez, 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 719 (2008). Citing Gryger, courts of appeals have repeatedly upheld recidivist statutes against ex post facto challenges. See, e.g., McCall v. Dretke, 390 F.3d 358, 364-66 (5th Cir. 2004); United States v. Forbes, 16 F.3d 1294, 1302 (1st Cir. 1994); United States v. Ahumada-Avalos, 875 F.2d 681, 683-84 (9th Cir. 1989); Covington v. Sullivan, 823 F.2d 37, 38-40 (2d Cir. 1987).
Because
IV. COMMERCE CLAUSE
Defendant also challenges his prosecution for failure to register on the ground that
The Supreme Court has identified “three broad categories of activity that Congress may regulate under its commerce power.” United States v. Lopez, 514 U.S. 549, 558-59, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). Those are “the use of the channels of interstate commerce,” “the instrumentalities of interstate commerce, or persons or things in interstate commerce,” and “activities that substantially affect interstate commerce.” Id.
Although
CONCLUSION
For the reasons discussed above, the Court will deny defendant’s motion to dismiss Counts One, Three, Four, Six, Seven, and Nine of the indictment. A separate Order accompanies this Memorandum Opinion.
ELLEN SEGAL HUVELLE
United States District Judge