U.S. v. Gould, 08-4302.

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Citation: 568 F.3d 459
• Docket Number: No. 08-4302.,08-4302.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brian Lee GOULD, Defendant-Appellant.
• Decision Date: 18 June 2009

568 F.3d 459

UNITED STATES of America, Plaintiff-Appellee, v. Brian Lee GOULD, Defendant-Appellant.

No. 08-4302.

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2009.

Decided: June 18, 2009.

ARGUED: Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Bonnie S. Greenberg, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before NIEMEYER and MICHAEL, Circuit Judges, and Arthur L. ALARCÓN, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge ALARCÓN joined. Judge MICHAEL wrote a dissenting opinion.

OPINION

NIEMEYER, Circuit Judge:

In this appeal we determine whether Brian Lee Gould was properly convicted under the Sex Offender Registration and Notification Act ("SORNA"), Pub.L. No. 109-248, §§ 101-155, 120 Stat. 587, 590-611 (2006) (codified at 42 U.S.C. § 16901 et seq. and 18 U.S.C. § 2250), for failing to register in Maryland as a sex offender when Maryland had not yet implemented SORNA's enhanced registration requirements.

Gould was convicted of a sex offense in the District of Columbia in 1985 and, upon his release in 2002, was required to register, by pre-SORNA federal and state law, as a sex offender in the State in which he resided, worked, or was a student. See 42 U.S.C. §§ 14071(b),(c), 14072(c),(g),(i); D.C.Code § 22-4014. In early 2004, Gould moved to West Virginia; in late 2004 to Pennsylvania; and in 2006 to Maryland. Gould was convicted in West Virginia for failing to update his registration and was charged in Pennsylvania with failing to update his registration. He never registered in Maryland.

On July 27, 2006, before Gould moved to Maryland, Congress enacted SORNA, which expanded the information required to be provided on registration and created a federal requirement that sex offenders "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." 42 U.S.C. § 16913(a). SORNA also criminalized the failure to register. See 18 U.S.C. § 2250(a).

Approximately one year after SORNA was enacted, Gould was arrested in Maryland and charged with violating SORNA, 18 U.S.C. § 2250(a), for failing to register in Maryland. After the district court denied Gould's motion to dismiss, in which he raised statutory and constitutional challenges, Gould pleaded guilty, reserving for appeal his statutory and constitutional challenges.

Gould contends that the district court should have dismissed his indictment because (1) he could not have been prosecuted for failure to register under SORNA because Maryland had not yet implemented SORNA; (2) he was "unable" to "initially register," as required by SORNA, 42 U.S.C. § 16913(b), because he was released from prison on his underlying sex offense long before SORNA was enacted; (3) he could not have "knowingly" failed to register in accordance with SORNA because he was not specifically instructed of SORNA's requirements, as required by 42 U.S.C. § 16917 and the regulations promulgated by the Attorney General; (4) prosecution without notification of his duty to register violated his rights under the Due Process Clause; (5) the Attorney General violated the Administrative Procedure Act in promulgating the interim regulations at 28 C.F.R. § 72 (2007) without notice and comment; and (6) SORNA violates the Commerce Clause by regulating "purely local intrastate activity that has nothing to do with commerce or any type of economic enterprise."

We reject each of Gould's arguments for the reasons that follow and affirm the judgment of the district court.

I

In 1985, Gould was convicted in the District of Columbia for assault with intent to commit sodomy while armed, in violation of D.C.Code §§ 22-503 and 22-3502 (1981). Since his release from prison in 2002, Gould has remained on parole under the supervision of the United States Parole Commission.

Gould moved to West Virginia in March 2004, and he duly registered there as a sex offender. But later that same year, he was charged and convicted of failing to update his registration pursuant to a continuing legal duty under West Virginia law to do so and was sentenced to 90 days' imprisonment.

In December 2004, Gould moved to Pennsylvania, where he again registered as a sex offender. But again he was charged in Pennsylvania with failing to comply with the requirement to update his registration. Before he could be arrested, however, he left Pennsylvania for Maryland, and on May 23, 2007, a warrant was issued in Pennsylvania for his arrest.

Before leaving Pennsylvania, Gould advised his parole officer of his intent to leave Pennsylvania, and the officer told Gould that he was not permitted to leave the State. Gould nonetheless moved to Maryland on August 21, 2006. He failed to keep two appointments, on August 21 and August 28, required by his parole officer in Pennsylvania, prompting a United States Parole Commissioner to issue a warrant for his arrest on August 31, 2006.

Gould failed to register as a sex offender in Maryland. In July 2007, he was arrested in Maryland on the warrant issued by the Parole Commissioner and was subsequently charged with failure to register as a convicted sex offender, in violation of SORNA, 18 U.S.C. § 2250(a). The indictment read:

Between on or about August 21, 2006, and continuing until on or about July 18, 2007, in the District of Maryland, Brian Lee Gould ..., an individual required to register under [SORNA] by reason of a conviction under Federal law and the law of the District of Columbia for Assault with Intent to Commit Sodomy while Armed, and an individual who traveled in interstate and foreign commerce after being required to register, did knowingly fail to register and update a registration as required by SORNA.

Gould filed a motion to dismiss the indictment, raising the statutory and constitutional grounds asserted in this appeal, and the district court denied the motion with a written opinion. See United States v. Gould, 526 F.Supp.2d 538 (D.Md.2007). Gould thereafter entered a guilty plea, reserving the right to appeal the district court's order denying his motion to dismiss, and the district court sentenced him to 24 months' imprisonment.

On appeal, Gould claims that SORNA does not, by its terms, authorize his prosecution for a violation of SORNA and that, in any event, SORNA is unconstitutional both on its face and as applied to him.

II

Gould contends first that he cannot be prosecuted for failing to register under SORNA because Maryland has not yet implemented SORNA. He asserts that "SORNA does not impose a direct federal mandate on individuals to register.... Instead, it merely sets forth registration standards that it encourages states [through the Spending Clause of the Constitution] to incorporate into their local laws by July 2009 at the earliest." He reasons that "because Maryland has not yet implemented SORNA, [he] was not subject to its constraints and could not be legally punished for violating the Act." Gould argues that to "conclude that SORNA applies in pre-implementation states would prematurely force states to register offenders under SORNA's terms before they choose to adopt the Act. Such reading would render meaningless the provision in SORNA [at 42 U.S.C. § 16924] that clearly gives states until at least July 2009 to make this choice and comply with the Act."

Gould's argument depends on a construction of SORNA that links the requirement imposed on individual sex offenders to register to the requirement imposed on the States to implement the registration standards mandated by SORNA in a manner that would have the requirement imposed on individuals be dependent on the State's implementation.¹ The language of SORNA, however, does not provide that linkage.

SORNA § 141(a), entitled "Criminal Penalties for Nonregistration," provides in relevant part:

Whoever—

(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 ... [or] the law of the District of Columbia ...; or

(B) travels in interstate or foreign commerce ...; 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 requirement to "register or update a registration" is imposed by SORNA § 113(a), which provides:

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.

42 U.S.C. § 16913(a). Thus, to establish a criminal violation of SORNA in this case, the government was required to show (1) that Gould was required to register under 42 U.S.C. § 16913(a) as a sex offender residing in Maryland; (2) that he was convicted of an offense under District of Columbia law that made him a sex offender, see id. § 16911(1),(5) (defining "sex offender" and "sex offense"), or that he traveled in interstate commerce; and (3) that he "knowingly" failed to register as required by § 16913(a).

The parties do not dispute that Gould was a sex offender by reason of his conviction under District of Columbia law or that after his conviction he traveled to Maryland where he knowingly failed to register as a sex offender. The question at issue is whether SORNA required Gould...