U.S. v. Hatcher

• Decision Date: 13 March 2009
• Docket Number: No. 07-4839.,No. 07-4845.,No. 07-5070.,No. 07-5008.,07-4839.,07-5070.,07-4845.,07-5008.
• Citation: 560 F.3d 222
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Thomas HATCHER, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Richard Dean Hinen, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gregory V. Roberts, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. John Edward Sawn, III, a/k/a John Edward Sawn, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

560 F.3d 222

UNITED STATES of America, Plaintiff-Appellee, v. William Thomas HATCHER, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Richard Dean Hinen, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Gregory V. Roberts, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. John Edward Sawn, III, a/k/a John Edward Sawn, Defendant-Appellant.

No. 07-4839.

No. 07-5070.

No. 07-4845.

No. 07-5008.

United States Court of Appeals, Fourth Circuit.

Argued October 30, 2008.

Decided March 13, 2009.

ARGUED: Christine Madeleine Spurell, Office of the Federal Public Defender, Roanoke, Virginia, for Appellants. Jennifer R. Bockhorst, Office of the United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, Roanoke, Virginia; Randy V. Cargill, Nancy C. Dickenson, Assistant Federal Public Defenders, Office of the Federal Public Defender, Abingdon, Virginia, for Appellants. Julia C. Dudley, Acting United States Attorney, Roanoke, Virginia, for Appellee.

Before KING, GREGORY, and SHEDD, Circuit Judges.

Reversed and vacated by published opinion. Judge GREGORY wrote the majority opinion, in which Judge KING joined. Judge SHEDD wrote a dissenting opinion.

OPINION

GREGORY, Circuit Judge:

In these consolidated appeals, William T. Hatcher, Richard Dean Hinen, Gregory V. Roberts, and John Edward Sawn appeal their convictions. Each of the Appellants was convicted of knowingly failing to register or update their registration as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a) (2006). The Appellants argue that SORNA is unconstitutional because it is not a valid exercise of congressional authority and because it violates the non-delegation doctrine, the Ex Post Facto Clause, and the Due Process Clause of the Fifth Amendment. However, we need not reach these constitutional questions because we find that, as a matter of statutory interpretation, SORNA's registration requirements did not apply to the Appellants at the time they committed the acts giving rise to their indictments. Therefore, we must reverse the convictions and vacate the sentences imposed in connection with those convictions.

I.

The Appellants were convicted of sex offenses in state courts between 1993 and 2001. All of the Appellants had finished serving the sentences imposed on them for those offenses prior to July 27, 2006, the enactment date of SORNA. As a result of their convictions, the Appellants were required to register under the sex offender registration systems of their respective states, and all of the Appellants initially complied with those registration requirements. At various times between July 27, 2006, and February 28, 2007, the Appellants moved to other states and failed to comply with SORNA's continuing registration requirements.

The Appellants were indicted on one count of traveling in interstate or foreign commerce and knowingly failing to register or update a sex offender registration as required by SORNA, in violation of 18 U.S.C. § 2250(a) (2006). Each of the Appellants was indicted after February 28, 2007.¹ The Appellants filed motions to dismiss their respective indictments, but those motions were denied by the district courts.² Hatcher, Roberts, and Sawn each entered a conditional guilty plea, preserving the right to appeal the denial of the motion to dismiss. Hinen was convicted in a jury trial.

Hatcher was sentenced to three years probation and ordered to pay a mandatory special assessment. Hinen was sentenced to three years probation, fined $450, and ordered to pay a mandatory special assessment. Roberts was sentenced to time served, five years supervised release, and ordered to pay a mandatory special assessment. Sawn was sentenced to thirty months imprisonment, five years supervised release, and ordered to pay a mandatory special assessment. The Appellants timely appeal.

II.

This Court reviews de novo the district court's denial of a motion to dismiss an indictment where the denial depends solely on questions of law. United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir.1993); see also United States v. Brandon, 298 F.3d 307, 310 (4th Cir.2002).

III.

A.

On July 27, 2006, the Adam Walsh Child Protection and Safety Act of 2006 ("AWA") was signed into law. Pub.L. No. 109-248, §§ 101-55, 120 Stat. 587, 590-611 (2006). Title I of the AWA is SORNA, which was enacted for the purpose of "protect[ing] the public from sex offenders and offenders against children" through the creation of a "comprehensive national system for the registration of those offenders." 42 U.S.C.A. § 16901 (West 2008). To that end, jurisdictions must "maintain a jurisdiction-wide sex offender registry" that complies with the standards set out by SORNA. 42 U.S.C.A. § 16912(a) (West 2008). Sex offenders are required to provide several types of information for inclusion in the sex offender registry, including their names and aliases, Social Security numbers, addresses of residences, names and addresses of places of employment, names and addresses of educational institutions in which the offenders are enrolled, and vehicle information. 42 U.S.C.A. § 16914(a) (West 2008).

In addition to detailing the kinds of information that must be included in the sex offender registry, SORNA dictates when and how convicted sex offenders must register. See 42 U.S.C.A. § 16913 (West 2008). As a general matter, sex offenders must register and keep their registration current in each jurisdiction where they reside, work, or attend school. 42 U.S.C.A. § 16913(a) (West 2008). Sex offenders are required to initially register in one of two ways: if the sex offender was sentenced to a term of imprisonment for his underlying offense, he must register before completing the sentence of imprisonment for that offense; otherwise, the sex offender must register within three days of being sentenced for the offense. 42 U.S.C.A. § 16913(b) (West 2008). Following the initial registration, sex offenders must keep their registration current by notifying at least one jurisdiction where they are required to register of all changes of name, residence, employment, or student status within three days of the change. 42 U.S.C.A. § 16913(c) (West 2008).

Of particular importance to this appeal is 42 U.S.C.A. § 16913(d) (West 2008), titled, "Initial registration of sex offenders unable to comply with subsection (b) of this section." This subsection is located within the same section as the aforementioned registration requirements. According to § 16913(d),

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 [SORNA's enactment date] 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.

To enforce its registration provisions, SORNA includes 18 U.S.C. § 2250(a) (2006), which makes it a federal felony, punishable by up to ten years imprisonment, inter alia, for a person who is required to register under SORNA to travel in interstate commerce and knowingly fail to register or update his sex offender registration.

On February 28, 2007, after the Appellants had committed the acts giving rise to their indictments, the Attorney General issued an interim rule stating that the registration requirements of SORNA applied to all convicted sex offenders, including those offenders who were convicted of sex offenses prior to the enactment of SORNA ("pre-SORNA offenders"). 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). According to the Attorney General, the purpose of the interim rule was to "foreclos[e] any dispute as to whether SORNA is applicable where the conviction for the predicate sex offense occurred prior to the enactment of SORNA." Id. The Attorney General cited § 16913(d) as the source of his authority to promulgate the rule, "regardless of whether SORNA would apply with such scope absent this rule." Id.

B.

The Appellants argue that the district courts erred in denying their motions to dismiss because the registration requirements of SORNA did not apply to them at the time they committed their alleged SORNA violations. The Appellants were convicted of their underlying sex offenses and had completed their sentences prior to the enactment of SORNA. Their indictments for violations of SORNA related to conduct that was committed sometime between SORNA's enactment and the issuance of the interim rule regarding the applicability of SORNA to pre-SORNA offenders. According to the Appellants, until the Attorney General issued the interim rule, SORNA's application to pre-SORNA offenders was not established, and thus the Appellants should not have been charged with violating SORNA's registration requirements.

In order to rule on the merits of the Appellants' claim, we must interpret the meaning of 42 U.S.C.A. § 16913(d) (West 2008). Other circuits have recently weighed in on this issue, albeit with differing results. Compare United States v. Madera, 528 F.3d 852 (11th Cir.2008) (per curiam) (holding that SORNA's registration requirements did not apply to pre-SORNA offenders until the issuance of the interim rule), with United States v. May, 535 F.3d 912 (8th Cir.2008) (holding that SORNA's registration requirements applied to pre-SORNA offenders from the time of SORNA's enactment) and United States v. Hinckley, 550 F.3d 926 (10th Cir.2008) (same).

To ascertain the meaning of § 16913(d), this Court must first examine the plain language of the subsection. See Hillman v. IRS, 250 F.3d 228, 232 (4th Cir.2001). As a general rule, "when the terms of a statute are clear, its language is conclusive and courts are `not free to replace ... [that clear language] with an...