U.S. v. Cain

Decision Date13 October 2009
Docket NumberNo. 07-4535.,07-4535.
Citation583 F.3d 408
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Marcus CAIN, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Amy B. Cleary, Federal Public Defender's Office, Cleveland, OH, for Appellant. Michael A. Sullivan, Assistant United States Attorney, Cleveland, OH, for Appellee. ON BRIEF: Amy B. Cleary, Federal Public Defender's Office, Cleveland, OH, Debra K. Migdal, Federal Public Defender's Office, Akron, OH, for Appellant. Michael A. Sullivan, Assistant

United States Attorney, Cleveland, OH, for Appellee.

Before: GUY, ROGERS, and GRIFFIN, Circuit Judges.

ROGERS, J., delivered the opinion of the court, in which GUY, J., joined. GRIFFIN, J. (pp. 424-36), delivered a separate dissenting opinion.


ROGERS, Circuit Judge.

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA. The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law. The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation. Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA's requirements during the period indicated in the indictment. Reversal is therefore required.

There are three elements to criminal liability under SORNA: prior conviction of a sexual offense, interstate travel1, and failure to register. A simplified time-line for this case is as follows:

1998: Cain convicted of a sexual offense.

July 27, 2006: enactment and general effective date of SORNA.

Approximately October 2006: Cain travels interstate.

February 28, 2007: the Attorney General promulgates an emergency regulation specifying the applicability of the registration requirement to persons convicted before July 27, 2006.

March 28, 2007: last date on which the indictment alleges that Cain failed to register.

Two legal determinations, each the subject of conflicting views among our circuit court colleagues around the nation, require us to conclude that SORNA does not apply to Cain's failure to register. First, SORNA's registration requirement did not become effective against persons like Cain (i.e., who were convicted of a sexual offense before July 27, 2006) until the Attorney General validly so specified pursuant to SORNA. Second, the Attorney General's specification did not take effect against Cain because the Attorney General did not show good cause to waive the notice and comment and delay of effectiveness requirements of the Administrative Procedure Act. It follows that Cain was not subject to SORNA's registration requirement during the period alleged in the indictment.

Because the indicted failure to register occurred before SORNA became effective against Cain, it is not necessary for us to decide whether the interstate travel element of the crime had to occur after the effectiveness of the SORNA obligation, as held for instance in United States v. Husted, 545 F.3d 1240, 1241 (10th Cir.2008), or whether instead the interstate travel element could have preceded the effectiveness of the SORNA obligation, as held in United States v. Dixon, 551 F.3d 578, 584-85 (7th Cir.2008), cert. granted sub nom. Carr v. United States, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 77 U.S.L.W. 3610, 78 U.S.L.W. 3011, 2009 WL 1095868 (U.S. Sept. 30, 2009) (No. 08-1301).2

I. Factual Background

In October 1998, Ohio convicted Cain of attempted rape. This conviction led to Cain's classification as a Sexually Oriented Offender under Ohio law, which required him to register as a sex offender with the state, verify his address annually, and notify the sheriff within seven days of changing his residence.

On July 27, 2006, the President signed SORNA into law. Because the statute did not expressly provide for its effective date, the statutory provisions took immediate effect. See United States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir.1977).

During the summer of 2006, Cain told his parole officer that he intended to move to Georgia. On September 18, 2006, Cain met with his parole officer in Ohio. He evidently left the state soon thereafter without updating his registration in either Ohio or Georgia, though the record does not reflect precisely when he traveled interstate. On October 16, 2006, Cain failed to appear to complete the annual registration required by Ohio law. Ohio issued a warrant for Cain's arrest.

On February 28, 2007, the United States Attorney General promulgated a regulation specifying that the registration requirements of SORNA applied to persons convicted before July 27, 2006. See 28 C.F.R. § 72.3.

On March 28, 2007, based on the warrant Ohio had issued, Georgia authorities arrested Cain. Ohio charged Cain for his failure to comply with its sex offender laws, but later dismissed the charges for reasons not specified in the record. Meanwhile, a federal grand jury indicted Cain for violating SORNA.

The grand jury accused Cain of violating 18 U.S.C. § 2250 by, "[f]rom on or about October 16, 2006, through on or about March 28, 2007 ... [being] an individual who was required to register pursuant to [SORNA], having, after [his state conviction of attempted rape], traveled in interstate commerce, .. . knowingly fail[ing] to register and update registration as required by [SORNA]."

Cain moved to dismiss the indictment on various grounds. One day after the Government filed a response to Cain's motion to dismiss, Cain agreed to change his plea to guilty pursuant to a plea agreement. The plea agreement specifically reserved the right to appeal the district court's "denial of Defendant's Motion to Dismiss," though the court had not yet ruled on that motion.

The district court never issued a written ruling on the motion to dismiss. At sentencing, the court stated that it was "adopting the Government's response and rationale" to deny the motion, though it noted that Cain could appeal that decision, and that the law "is in a state of flux."

The district court sentenced Cain to five months of imprisonment with credit for time served, and five years of supervised release. Cain appeals only the denial of the motion to dismiss.

II. Legal Background

SORNA created a new federal crime of "failure to register." This crime has three elements:


(1) is required to register under [SORNA];

(2) (A) is a sex offender as defined for the purposes of [SORNA] by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or (B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by [SORNA];

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250(a).

The criminal requirement refers to the registration requirement contained in a different section of SORNA, 42 U.S.C. § 16913. That section provides:

(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.

42 U.S.C. § 16913.

Thus, subsection (a) of § 16913 requires a sex offender to register and keep the registration current. Subsection (c) further requires that a sex offender appear in person to inform the authorities each time he changes his name, residence, employment, or student status. However, § 16913(d) further provides:

(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 subchapter3 to sex offenders convicted before July 27, 2006,4 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(d).

On February 28, 2007, the Attorney General promulgated a regulation stating that SORNA's requirements "apply to all sex offenders, including sex offenders convicted of the offense for which...

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