528 F.3d 852 (11th Cir. 2008), 07-12176, United States v. Madera

Docket Nº07-12176.
Citation528 F.3d 852
Party NameUNITED STATES of America, Plaintiff-Appellee, v. Wilfredo G. MADERA, Defendant-Appellant.
Case DateMay 23, 2008
CourtUnited States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 852

528 F.3d 852 (11th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Wilfredo G. MADERA, Defendant-Appellant.

No. 07-12176.

United States Court of Appeals, Eleventh Circuit.

May 23, 2008

Page 853

James T. Skuthan , Acting Fed. Pub. Def., Orlando, FL, John L. Badalamenti , Fed. Pub. Def., Tampa, FL, for Madera.

Patricia D. Barksdale, Jacksonville, FL, Roberta Josephine Bodnar, Orlando, FL, for U.S.

Appeal from the United States District Court for the Middle District of Florida.

Before BARKETT , FAY and STAPLETON,[*] Circuit Judges.

Page 854

PER CURIAM:

Wilfredo G. Madera (“Madera" ) appeals from the district court's denial of his motion to dismiss the indictment against him for failing to register as a sex offender in violation of 18 U.S.C. § 2250(a) and the Adam Walsh Child Protection and Safety Act of 2006 (“Walsh Act" ). On appeal, Madera argues that the Walsh Act is unconstitutional because it violates the following provisions of the United States Constitution: 1) the Non-Delegation Doctrine, Art. I, § 1; 2) the ex post facto clause, Art. I, § 9, cl. 3; 3) both the procedural and substantive due process clauses of the Fifth Amendment; and 4) the Commerce Clause, Art. I, § 8, cl. 3. The district court denied Madera's motion to dismiss, holding as a matter of law that the Walsh Act was both retroactive and constitutional. We reverse.

Factual Background

Madera was convicted in New York in November 2005 of sexual abuse in the second degree, a misdemeanor under New York Penal Code § 130.60. He was sentenced to six years of probation for this conviction, but was not incarcerated. Madera signed a sexual offender registration form in New York, dated May 1, 2006, which stated, “If you move to another state you must register as a sex offender within 10 days of establishing residence."

Madera subsequently moved to Florida, and was issued a driver's license on June 1, 2006 with an address in West Palm Beach, Florida. He was arrested on October 23, 2006 for failure to register as a sex offender in violation of 18 U.S.C. § 2250 , and was thereafter indicted by a grand jury for “knowingly and unlawfully fail[ing] to register and update a registration as required by [the Walsh Act]."

After the district court denied Madera's motion to dismiss, Madera entered a conditional plea of guilty to the failure to register charge, permitting him to appeal that motion. The district court then sentenced Madera to time served, four years of probation, and a $500 fine. As of March 8, 2007, Madera has been registered with the State of Florida Sexual Offender Registration database. This appeal followed.

Standard of Review

Generally, we review a district court's denial of a motion to dismiss for an abuse of discretion. See United States v. Noriega, 117 F.3d 1206, 1211 (11th Cir.1997) . To the extent that the district court's determination rests on the district court's resolution of questions of law, however, we must review those questions of law de novo. Id. 1

Discussion

The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248 , was enacted on July 27, 2006. Title I of the Act, entitled the Sex Offender Registration and Notification Act (“SORNA" ), creates a national sex offender registry law. In addition to defining the term “sex offender" and addressing the various tiers of sex offender status, 42 U.S.C. § 16911 , SORNA also requires every jurisdiction to maintain a sex offender registry conforming to the requirements of SORNA.

Page 855

42 U.S.C. § 16912 . At a minimum, SORNA requires sex offenders to provide information disclosing their name and aliases, Social Security number, residence, place of employment and/or school, and vehicle information. 42 U.S.C. § 16914(a) (1)-(7) . Every jurisdiction must also include in the sex offender registry the sex offender's physical description, criminal history, current photographs, fingerprints and palm prints, DNA sample, and a photocopy of a driver's license or identification card. 42 U.S.C. § 16914(b) (1)-(8) . Certain information about the sex offender (exempting items such as Social Security numbers) is also mandated to be published on a jurisdictional website, and each jurisdiction's website must contain full field search capabilities for participation in the National Sex Offender Public Website which is maintained by the Attorney General. See 42 U.S.C. §§ 16918 , 16920 .

Most pertinent to this case, SORNA also delineates how and when a sex offender should register under the Act. In general, sex offenders are required to register in each jurisdiction where the sex offender resides within three days of being sentenced, unless they are sentenced to a term of imprisonment for the sex offense, in which case they must register before completing their sentence. 42 U.S.C. § 16913(a) -(b) .2 If a sex offender has a change in name, residence, employment, or student status, the sex offender must update their registration within three days. 42 U.S.C. § 16913(c) . SORNA creates a new federal crime for those individuals who fail to register, or to keep their registration current, despite being required to do so by subjecting the sex offender to fines or imprisonment up to ten years, or both. 18 U.S.C. § 2250(a) .3 On appeal,

Page 856

Madera challenges the district court's ruling that SORNA is retroactive from its date of enactment and the court's rejection of his arguments that SORNA is unconstitutional. We first consider SORNA's retroactivity.

Congress vested the Attorney General with “the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006." 42 U.S.C. § 16913(d) . The Attorney General exercised that authority by issuing an interim rule on February 28, 2007, stating that SORNA was to apply retroactively to anyone convicted of a sex offense, regardless of when that offense took place. See 28 C.F.R. § 72.3 .

Over a month before the Attorney General issued this interim rule, the district court in this case held that SORNA was retroactive as a matter of law. In doing so, the district court said, “[T]he determination of whether a law is retroactive is in the capable hands of either one of two branches of government: Congress or the courts. Congress, in stating that the Attorney General has the authority to determine how sex offenders convicted before July 27, 2006, should comply with SORNA registration, is merely giving the Attorney General an advisory role to the courts." United States v. Madera, 474 F.Supp.2d 1257, 1261 (M.D.Fla.2007) . The district court concluded that because Congress did not specifically prescribe the statute's reach, and the Attorney General had not yet made a determination, the court was left to apply the normal rules of statutory construction, “guided by the familiar [retroactivity] considerations of fair notice, reasonable reliance, and settled expectations." Id. at 262 (citing INS v. Cyr, 533 U.S. 289, 321, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ). The district court found that Madera was on fair notice that he had to register in Florida because of the requirement contained in the New York registration form he signed in May 2006; that “[n]o new duties were imposed on [Madera] by the enactment of SORNA;" and that SORNA did not “impair any rights [Madera] possessed when he failed to register in Florida." Id. In light of these findings, the district court concluded that SORNA was retroactive as of July 27, 2006, the day of its enactment. 4

Madera argues that the district court erred in determining that SORNA was retroactive as a matter of law because Congress specifically delegated this decision to the Attorney General.5 Madera argues that his prosecution under the Act was premature because the Attorney General's rule, made months after Madera's

Page 857

November 1, 2006 prosecution, was a “condition precedent" to SORNA's retroactive enforcement. In addition, Madera argues that the plain language of the “failure to register" crime set forth in 18 U.S.C. § 2250 applies only to those sex offenders who traveled in interstate commerce after the July 27, 2006 enactment because it uses the present sense of the verb “travels," and not the past tense. Because Madera's interstate travel occurred before the Act was enacted, he argues that § 2250 cannot be retroactively applied to him. Madera also argues that the rule of lenity, which compels strict construction of ambiguous criminal statutes so that they are applied only to conduct clearly covered, precludes the district court's ruling that the statute was retroactive.

Retroactivity of SORNA

It is now clear, following the Attorney General's pronouncement of the interim rule, that SORNA is to be retroactively applied to sex offenders convicted prior to SORNA's enactment. See Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8896 (explaining that “[t]he current rulemaking...

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    • Federal Cases United States District Courts 11th Circuit Middle District of Alabama
    • March 6, 2009
    ...individuals who fail to register, or to keep their registration current, despite being required to do so." United States v. Madera, 528 F.3d 852, 855 (11th Cir.2008). Codified at 18 U.S.C. § 2250(a), this new offense carries a penalty of up to ten years of imprisonment, and is the char......
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    ...interstate commerce. Hinen , 487 F.Supp. 2d 747; United States v. Madera , 474 F. Supp.2d 1257 (M.D. Fla. 2007), rev'd on other grounds, 528 F.3d 852 (11th Cir. 2008); United States v. Kelton, No. 5:07-cr-030-Oc-10GRJ , 2007 WL 2572204 (M.D. Fla. 2007); United States v. Sawn, No. 5:07-cr-02......
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63 cases
  • 606 F.Supp.2d 1340 (M.D.Ala. 2009), 2:08-CR-50, United States v. Dean
    • United States
    • Federal Cases United States District Courts 11th Circuit Middle District of Alabama
    • March 6, 2009
    ...individuals who fail to register, or to keep their registration current, despite being required to do so." United States v. Madera, 528 F.3d 852, 855 (11th Cir.2008). Codified at 18 U.S.C. § 2250(a), this new offense carries a penalty of up to ten years of imprisonment, and is the char......
  • 591 F.Supp.2d 1312 (S.D.Fla. 2008), 08-60064, United States v. Myers
    • United States
    • Federal Cases United States District Courts 11th Circuit United States District Courts. 11th Circuit. Southern District of Florida
    • December 9, 2008
    ...States v. Madera, 474 F.Supp.2d 1257, 1265 (M.D.Fla.2007) (upholding SORNA under the analysis applied in Raich ), rev'd on other grounds 528 F.3d 852 (11th Cir.2008); United States v. Mason, 510 F.Supp.2d 923, 932 (M.D.Fla.2007); United States v. Hinen, 487 F.Supp.2d 747, 757-59 (W.D.Va.200......
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    • April 21, 2009
    ...Clause, and Due Process); Hinen, 487 F.Supp.2d 747; United States v. Madera, 474 F.Supp.2d 1257 (M.D.Fla.2007), rev'd on other grounds, 528 F.3d 852 (11th Cir.2008); United States v. Kelton, 2007 WL 2572204 (M.D.Fla.2007); United States v. Sawn, 2007 WL 2344980 (W.D.Va.2007); United States ......
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    ...interstate commerce. Hinen , 487 F.Supp. 2d 747; United States v. Madera , 474 F. Supp.2d 1257 (M.D. Fla. 2007), rev'd on other grounds, 528 F.3d 852 (11th Cir. 2008); United States v. Kelton, No. 5:07-cr-030-Oc-10GRJ , 2007 WL 2572204 (M.D. Fla. 2007); United States v. Sawn, No. 5:07-cr-02......
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