604 F.3d 1275 (11th Cir. 2010), 09-13115, United States v. Dean

Docket Nº:09-13115.
Citation:604 F.3d 1275
Opinion Judge:FARRIS, Senior Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher C. DEAN, Defendant-Appellant.
Attorney:Aylia McKee, Christine A. Freeman, Patricia Vanessa Kemp, Fed. Pub. Defenders, Montgomery, AL, for Dean. Jerusha T. Adams, Nathan D. Stump, Montgomery, AL, for U.S.
Judge Panel:Before HULL, WILSON and FARRIS,[*] Circuit Judges. WILSON, Circuit Judge, concurring in the result:
Case Date:April 28, 2010
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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604 F.3d 1275 (11th Cir. 2010)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher C. DEAN, Defendant-Appellant.

No. 09-13115.

United States Court of Appeals, Eleventh Circuit.

April 28, 2010

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Aylia McKee, Christine A. Freeman, Patricia Vanessa Kemp, Fed. Pub. Defenders, Montgomery, AL, for Dean.

Jerusha T. Adams, Nathan D. Stump, Montgomery, AL, for U.S.

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

Before HULL, WILSON and FARRIS,[*] Circuit Judges.

FARRIS, Senior Circuit Judge:

Christopher Dean appeals his guilty plea to the charge of having traveled in interstate commerce and knowingly failing to register as a sex offender under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250(a) (2006). Dean asserts that the Attorney General did not have good cause to promulgate a rule making SORNA retroactive without notice and comment as required by the Administrative Procedure Act. We have jurisdiction under 28 U.S.C. § 1291(2006) and 18 U.S.C. § 3742(a)(1) (2006). We affirm.

I.

On January 18, 1994, Dean was convicted of criminal sexual conduct in the third degree in Minnesota. As a result of the conviction, Dean was required to register as a sex offender. Dean relocated to Montana in 2003 and registered as a sex offender there. Dean then subsequently relocated to Georgia and registered in 2005 as a sex offender and provided notice to Montana. Dean traveled to Alabama sometime between July 2007 and August 2007 and failed to register as a sex offender there. Dean was arrested in Alabama for failing to register. On March 14, 2008, Dean was charged in federal district court with one count of having traveled in interstate commerce and knowingly failing to register as a sex offender as required by SORNA, in violation of 18 U.S.C. § 2250(a).

Dean moved to dismiss his indictment in the district court, arguing that SORNA was invalid under the Administrative Procedure Act, non-delegation doctrine, and Commerce Clause, Ex Post Facto Clause, and Due Process Clause of the Constitution. The district court denied Dean's motion to dismiss. Dean then pled guilty to the charge, was sentenced to time served, and filed this timely appeal. Dean is not currently incarcerated but is subject to supervised release.

II.

Congress enacted the Sex Offender Registration and Notification Act, which became effective on July 27, 2006. 42 U.S.C. § 16901 (2006). SORNA mandated that all states maintain a sex offender registry and set a deadline for states to implement SORNA before July 27, 2009.

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42 U.S.C. §§ 16912, 16924 (2006). SORNA sets out an initial registration requirement for sex offenders in 42 U.S.C. § 16913(b) (2006). Subsection (b) provides that:

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.

Id. SORNA also provides specifically, under § 16913(d): Initial registration of sex offenders unable to comply with subsection (b) of this section, that:

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(b), (d).

On February 28, 2007, the Attorney General promulgated an interim rule pursuant to § 16913(d) making SORNA retroactive to all sex offenders convicted prior to SORNA's enactment. 28 C.F.R. § 72.3 (2007). In promulgating the rule, the Attorney General invoked the " good cause" exceptions of the Administrative Procedure Act at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3) and did not have a pre-promulgation notice and comment period. 72 Fed.Reg. 8894, 8896-7 (2007).

The Attorney General issued a statement of good cause with the rule, noting the practical dangers of additional sexual assaults and child sexual abuse or exploitation offenses if SORNA were not made immediately retroactive:

The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act's requirements-and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required-to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of " protect[ing] the public from sex offenders and offenders against children" by establishing " a comprehensive national system for the registration of those offenders," SORNA § 102, because a substantial class of sex offenders could evade the Act's registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.

It would accordingly be contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b) or with the delayed effective date normally required under 5 U.S.C. 553(d).

Id. at 8896-97. The rule took effect immediately. Id. at 8895. The Attorney General

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accepted post-promulgation comments on the rule through April 30, 2007. Id.

III.

We review a district court's denial of a motion to dismiss for abuse of discretion. United States v. Madera, 528 F.3d 852, 855 (11th Cir.2008). Additionally, we review " questions of statutory interpretations de novo, although an agency's interpretive guidance construing a statute is entitled to deference ‘ proportional to its power to persuade.’ " Warshauer v. Solis, 577 F.3d 1330, 1335 (11th Cir.2009). Agency actions under the APA are reviewed under the " arbitrary and capricious standard, which provides the reviewing court with very limited discretion to reverse an agency decision." Id. (citations omitted).

Dean argues that (1) SORNA is not a valid exercise of Congress's Commerce Clause power because the regulated activity does not have a substantial effect on interstate commerce nor does it involve or affect the channels or instrumentalities of interstate commerce; (2) SORNA is an improper delegation of legislative power; and (3) the government did not notify Dean of the requirement for him to register as a sex offender. He concedes that we addressed his arguments on point in United States v. Ambert, 561 F.3d 1202 (11th Cir.2009). Ambert rejected both Commerce Clause claims, the non-delegation claim, and the due process claim. Ambert, 561 F.3d at 1208-14. Furthermore, " only the Supreme Court or this court sitting en banc can judicially overrule a prior panel decision." Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.1997). As Ambert has not been overturned by this Court sitting en banc or by the Supreme Court, we are bound by Ambert. Dean's constitutional arguments therefore must fail. See Ambert, 561 F.3d at 1208-15; United States v. Brown, 586 F.3d 1342, 1351 (11th Cir.2009).

IV.

Dean's remaining argument is that the Attorney General's rule that SORNA applied retroactively did not comply with the requirements of the APA. Dean does not dispute that SORNA would apply to him if the rule making it retroactive is valid. Whether the Attorney General had good cause to bypass the notice and comment requirements of the APA is an issue of first impression in this Court and one that has split our sister circuits. See United States v. Gould, 568 F.3d 459 (4th Cir.2009), cert. denied, __ U.S. __, 130 S.Ct. 1686, 176 L.Ed.2d 186, 2010 WL 680575 (2010); United States v. Cain, 583 F.3d 408 (6th Cir.2009).

The APA provides that there should be notice and comment before the promulgation of any rule. 5 U.S.C. § 553 (2006). The purpose of the notice provision is to " disclose the thinking of the agency and the data relied on." Lloyd Noland Hospital and Clinic v. Heckler, 762 F.2d 1561, 1565 (11th Cir.1985). Furthermore, notice and comment " allow[s] an agency to reconsider, and sometimes change, its proposal based on the comments of affected persons." Miami-Dade County v. United States Environmental Protection Agency, 529 F.3d 1049, 1059 (11th Cir.2008).

The Attorney General concedes that he did not follow the standard notice and comment procedures required by the APA. Instead, the Attorney General invoked the " good cause" exceptions contained at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3). 72 Fed.Reg. 8894, 8896 (2007). The good cause exceptions allow the agency to skip notice and comment " when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary,

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or contrary to the public interest." 5 U.S.C. § 553(b)(3)(B).

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