U.S. v. Cotton

• Decision Date: 20 January 2011
• Docket Number: Criminal Action No. 10–126 (JDB).
• Parties: UNITED STATES of Americav.Larry Donnell COTTON, Defendant.
• Court: U.S. District Court — District of Columbia

760 F.Supp.2d 116

UNITED STATES of America

v.Larry Donnell COTTON, Defendant.

Criminal Action No. 10–126 (JDB).

United States District Court, District of Columbia.

Jan. 20, 2011.

Catherine K. Connelly, U.S. Attorney's Office, Washington, DC, for United States of America.Mary Manning Petras, Federal Public Defender for D.C., Washington, DC, for Larry Donnell Cotton.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

On November 6, 1997, Defendant Larry Donnell Cotton was convicted of one count of indecent liberties with a minor in violation of N.C. Gen. Stat. § 14–202.1 (1995). At the time of Cotton's conviction, North Carolina law required Cotton to register as a sex offender for a period of ten years following his release from prison. N.C. Gen. Stat. § 14–208.7 (1995). When Cotton was released from jail in October 1998, he signed a notice that explained: “If a person required to register changes address, the person shall provide written notice of the new address not later than the tenth day after the change to the sheriff of the county with whom the person had last registered.” Gov't's Opp. to Def.'s Mot. to Dismiss Indictment (“Gov't's Opp.”) [Docket Entry 12] at 1–2.

On June 8, 2010, a grand jury in this District returned a one count superseding indictment against Cotton, charging him with failure to register as required by the Sex Offender Registration and Notification Act (“SORNA” or “the Act”), 42 U.S.C. § 16901 et seq., “in the District of Columbia and elsewhere.” Superseding Indictment 1 [Docket Entry 5]. Cotton's indictment charges activity in violation of SORNA “between on or about May 2007 and on or about October 2008.” Id. Cotton moves to dismiss the indictment, asserting eight separate grounds for dismissal. First, Cotton asserts that he was “unable” to register under existing District of Columbia law. Second, Cotton contends that SORNA is not applicable to him because the District of Columbia has yet to implement SORNA. Third, he claims that SORNA is not applicable to him because he was “unable” to “initially register” under Section 16913(b) of the Act. Fourth, Cotton maintains that Congress improperly delegated the legislative function of determining the applicability of SORNA to sex offenders with pre-SORNA convictions. Fifth, he asserts that the Attorney General's interim regulation, 28 C.F.R. § 72.3, which applies SORNA retroactively, was issued in violation of the Administrative Procedure Act. Sixth, Cotton asserts that the retroactive application of SORNA violates the Ex Post Facto Clause of the Constitution. Seventh, he argues that application of SORNA to him violates the Due Process Clause. And eighth, he maintains that SORNA is an unlawful exercise of federal power under the Commerce Clause.

LEGAL BACKGROUND

Congress enacted SORNA on July 27, 2006 as part of the Adam Walsh Child Protection and Safety Act. Pub. L. 109–248, Tit. I, 120 Stat. 590. SORNA's stated purpose is to “establish[ ] a comprehensive national system for the registration of sex offenders.” 42 U.S.C. § 16901. “Since 1994, federal law has required states, as a condition for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification.” Carr v. United States, –––U.S. ––––, 130 S.Ct. 2229, 2235, 176 L.Ed.2d 1152 (2010). In an effort to make these state schemes more effective, SORNA expanded the information that states must collect and maintain in their sex offender registries, created a federal registration requirement, and criminalized the failure to register. See 42 U.S.C. §§ 16901, 16913, 16914. Among its provisions, SORNA established a federal criminal offense, 18 U.S.C. § 2250(a), covering any person who (1) “is required to register under [SORNA]”; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration.” See Carr, 130 S.Ct. at 2235.

In Carr, the Court determined that these elements are to “be read sequentially,” meaning that “a person [who] becomes subject to SORNA's registration requirements ... must then travel in interstate commerce and thereafter fail to register.” Id. at 2235–36. In other words, Carr clarified that “[o]nce a person becomes subject to SORNA's registration requirements, which can occur only after the statute's effective date, that person can be convicted under § 2250 if he thereafter travels and then fails to register.” Id. at 2236. Precisely when a sex offender, like Cotton, with a pre-SORNA conviction “becomes subject to SORNA's registration requirements,” however, is in dispute. See id. at 2234 n. 2. SORNA's registration requirements are laid out in 42 U.S.C. § 16913:

(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 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). The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter 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).

The Act thus provides in subsection (d) that “[t]he Attorney General shall have 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). Pursuant to this authority, on February 28, 2007, the Attorney General issued an interim rule “to eliminate any possible uncertainty about the applicability of [SORNA's] requirements,” 72 Fed. Reg. 8894, 8896 (2007), and stated that SORNA's requirements “apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA].” 28 C.F.R. § 72.3. When the Attorney General promulgated the interim rule, he did not provide notice of proposed rulemaking, 5 U.S.C. § 553(b), or allow a 30–day period before the rule became effective, 5 U.S.C. § 553(d), as required by the Administrative Procedure Act (“APA”). Instead, he invoked the “good cause” exception of the APA for these requirements. See 5 U.S.C. §§ 553(b)(3)(B) & (d)(3); 72 Fed. Reg. 8894, 8896–97 (2007).

The Supreme Court in Carr did not resolve the “conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offenses prior to the statute's enactment” or “as to whether § 72.3 was properly promulgated [under the APA].” Carr, 130 S.Ct. at 2234 n. 2. The Court highlighted the conflicts in a footnote, explaining first that “[s]everal Circuits ... have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 28 C. F.R § 72.3, 72 Fed. Reg. 8897, on February 28, 2007.” Id.; see United States v. Valverde, 628 F.3d 1159, 1161–62 (9th Cir.2010); United States v. Hatcher, 560 F.3d 222, 226–29 (4th Cir.2009); United States v. Cain, 583 F.3d 408, 414–19 (6th Cir.2009); United States v. Dixon, 551 F.3d 578, 582 (7th Cir.2008); United States v. Madera, 528 F.3d 852, 857–59 (11th Cir.2008) (per curiam). The Court further observed that “[o]ther Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act's registration requirements upon the statute's enactment in July 2006.” Carr, 130 S.Ct. at 2234 n. 2; see United States v. DiTomasso, 621 F.3d 17, 23 (1st Cir.2010); United States v. Hinckley, 550 F.3d 926, 929–35 (10th Cir.2008); United States v. May, 535 F.3d 912, 915–19 (8th Cir.2008); see also United States v. Shenandoah, 595 F.3d 151, 163 (3rd Cir.2010) (ruling that it was “not reach[ing]” the defendant's APA issue because defendant “was already a registered sex offender when SORNA was enacted, [and] SORNA only required him to keep his registration current on and after July 27, 2006”).

The Supreme Court in Carr “similarly express[ed] no view as to whether § 72.3 was properly promulgated [under the APA]—a question that has also divided the Circuits.” Carr, 130 S.Ct. at 2234 n. 2; compare Cain, 583 F.3d at 419–24 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the APA's notice-and-comment and publication requirements); Valverde, 628 F.3d at 1165–66, 2010 WL 5263142, at *6 (same); with United States v. Dean, 604 F.3d 1275 (11th Cir.2010) (finding no APA violation); United States v. Gould, 568 F.3d 459, 469–470 (4th Cir.2009) (same). Indeed, three of the four Circuit panels that have ruled on this issue were internally split regarding whether the Attorney General's explanation constituted good cause under the APA. See Cain, 583...