535 F.3d 912 (8th Cir. 2008), 07-3515, United States v. May

Docket Nº:07-3515.
Citation:535 F.3d 912
Party Name:UNITED STATES of America, Appellee, v. David Louis MAY, Appellant.
Case Date:July 31, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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535 F.3d 912 (8th Cir. 2008)

UNITED STATES of America, Appellee,


David Louis MAY, Appellant.

No. 07-3515.

United States Court of Appeals, Eighth Circuit.

July 31, 2008

Submitted: May 13, 2008.

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[Copyrighted Material Omitted]

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James F. Whalen, AFPD, argued, Des Moines, IA, for appellant.

Andrew H. Kahl, AUSA, argued, Shannon Olson, AUSA, on the brief, Des Moines, IA, for appellee.

Before RILEY, BOWMAN, and HANSEN, Circuit Judges.

RILEY, Circuit Judge.

David Louis May (May) appeals the district court's 1 denial of May's motion to dismiss an indictment charging him with one count of failure to register as a sex offender in violation of 18 U.S.C. § 2250(a), the Sex Offender Registration and Notification Act (SORNA).2 The district court found (1) SORNA applies to May, (2) SORNA's retroactive application does not violate the ex post facto clause, (3) Congress did not improperly delegate legislative responsibility to the Attorney General in violation of the non-delegation doctrine, (4) application of SORNA to May did not violate May's due process rights, and (5) Congress's enactment of SORNA was a permissible exercise of its authority under the commerce clause. We affirm.


In 1994, May pled guilty in Oregon to misdemeanor sexual conduct. The Oregon

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sex offender law required May to register as a sex offender and to keep his registration updated. See O.R.S. § 181.595. May first registered on June 26, 2000. May thereafter moved to Maryland, and both failed to update his Oregon registration, pursuant to O.R.S. § 181.596, and failed to register as a sex offender in Maryland, as required by Maryland law, see Md.Code Ann.Crim. Pro. §§ 11-701 to 11-705.

May was arrested on June 19, 2002, and later convicted for failing to register in Maryland as a sex offender. On July 11, 2002, May registered in Maryland, but May again failed to update his registrations after he was released from jail on November 6, 2002. May returned to Oregon, failed to update his registration there, and, on December 21, 2004, was convicted for failing to register as a sex offender in Oregon. May then updated his registration in Oregon, which he kept current through November 8, 2006. On November 18, 2006, May relocated to Iowa, and neither updated his registration in Oregon, nor registered as a sex offender under Iowa law. See Iowa Code § 692A.1-.16.

On June 20, 2007, May was indicted under SORNA for being a sex offender who traveled in interstate commerce and knowingly failing to register and update his registration. May moved to dismiss the indictment. The district court rejected each of May's arguments, and denied May's motion. May pled guilty, but reserved his right to appeal the district court's order denying his motion to dismiss. May now appeals.


The parties agree none of the issues in this appeal involve factual disputes. Each issue involves either statutory interpretation of SORNA or constitutional challenges to SORNA's applicability. We therefore review each issue de novo. See Royal v. Kautzky, 375 F.3d 720, 722 (8th Cir.2004) (“We review claims of constitutional error and issues of statutory construction de novo." (internal citation and quotation marks omitted)).

A. Applicability of SORNA

May contends SORNA does not apply to him because his travel in interstate commerce, although occurring after SORNA's enactment, occurred before the Attorney General issued an interim ruling designating the applicability of SORNA to offenders convicted before SORNA's date of enactment. 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) ... and inform that jurisdiction of all changes in the information

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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 [the enactment of this Act] 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.

Section 16913(a)-(d).

On February 28, 2007, the Attorney General issued an interim rule effective February 28, 2007, which states in pertinent part:

[T]he requirements of [SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to enactment of that Act.

72 Fed.Reg. 8894 (to be codified at 28 C.F.R. § 72.3).

During the pendency of this appeal, the Eleventh Circuit Court of Appeals issued an opinion interpreting § 16913(d) and SORNA's retroactivity. See United States v. Madera, 528 F.3d 852 (11th Cir.2008). Madera involved a slightly different factual background than we have before us. Unlike May, the defendant in Madera was prosecuted and convicted before the Attorney General issued the interim rule. Id. at 857. Because the Eleventh Circuit's reasoning plainly impacts May's case, we will hereafter address Madera. Before doing so, it will be useful to discuss the various manners in which district courts have interpreted § 16913(d) in cases preceding Madera.

In the interest of brevity, we discuss only a few demonstrative district court cases, which interplay with each other. In United States v. Muzio, No. 4:07-CR-179, 2007 WL 2159462 (E.D.Mo. July 26, 2007), upon which May relies, the defendant, like May, was convicted before SORNA's enactment, and traveled to another state (Missouri) after SORNA's passage, but before the Attorney General issued the interim regulation. Id. at *2. The Muzio court concluded § 16913(d) was unambiguous, and found:

Under the plain language of the statute, the registration requirements of [§ 16913(a) ] have only prospective applicability until the Attorney General acted pursuant to [§ 16913(d) ]. Section [16913(d) ] unequivocally authorizes the Attorney General to “specify the applicability" of SORNA to offenders who, like Muzio, were convicted of predicate sex offenses before SORNA's effective date of July 27, 2006.

Id. at *3. The Muzio court discounted the title of § 16913(d), noting, “Only the title raises any question about § [16913(d) ]'s meaning. But a title does not make a statute ambiguous when the words are plain: ‘section and subchapter titles cannot alter the plain meaning of a statute; they can only assist in clarifying ambiguity.’ " Id. (quoting Minnesota Transp. Regulation Bd. v. United States, 966 F.2d 335, 339 (8th Cir.1992)). The Muzio court adopted the reasoning of United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007):

Section [16913(d) ] comprises two clauses. The first clause ... authorizes the Attorney General to “specify the applicability" of SORNA to past offenders. The second clause authorizes the Attorney General to promulgate regulations related to the registration of sex offenders

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under SORNA. Although the first clause speaks to “sex offenders convicted before the enactment of this Act or its implementation in a particular jurisdiction," the second clause provides authority to promulgate regulations “for the registration of any such [previously convicted] sex offenders and for other categories of sex offenders who are unable to comply with subsection (b)." The words “any such" and “other categories" in the second clause indicate that § [16913(d) ] contemplates two groups of sex offenders: (1) past offenders and (2) those unable to initially register under subsection (b). Significantly, the first clause of § [16913(d) ], which addresses SORNA's applicability, only covers the first group: past offenders. Therefore, when the two clauses are read in conjunction, the first clause of § [16913(d) ] unambiguously provides the Attorney General with the authority to define the retrospective applicability of SORNA's registration requirements to past offenders.

Muzio, 2007 WL 2159462, at *4 (quoting Kapp, 487 F.Supp.2d at 542).

In United States v. Roberts, 2007 WL 2155750 (W.D.Va. July 27, 2007), the district court took a position directly opposite from that taken in Muzio and Kapp. Rather than looking only at § 16913(d), the Roberts court looked at the entirety of the statute and found:

The 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. The proper distinction for these purposes is between those who are currently registered, and those who are ...

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