U.S. v. Hinckley

Decision Date09 December 2008
Docket NumberNo. 07-7107.,07-7107.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Shawn Lloyd HINCKLEY, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Christopher Wilson, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, on the brief), Muskogee, OK, for Plaintiff-Appellee.

Robert Ridenour, Assistant Federal Public Defender (Julia L. O'Connell, Acting Federal Public Defender and Barry L. Derryberry, Research & Writing Specialist of the Office of the Federal Public Defender, on the brief), Tulsa, OK, for Defendant-Appellant.

Before KELLY, McCONNELL, and GORSUCH, Circuit Judges.

PAUL J. KELLY, Circuit Judge.

Defendant-Appellant Shawn Lloyd Hinckley appeals from his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250, enacted July 27, 2006. On appeal, he argues that (1) the indictment was constitutionally defective because it sought to prosecute him for behavior that predated SORNA's effective date; (2) the application of SORNA in his circumstances violates the Ex Post Facto Clause; (3) he was denied due process because he had no notice that he was required to register under SORNA; (4) Congress's delegation to the Attorney General in § 16913(d) violates the Nondelegation Doctrine; and (5) SORNA violates the Commerce Clause by punishing activity that does not substantially affect interstate commerce. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.


On October 19, 2000, Mr. Hinckley pled guilty to assault in the third degree with sexual motivation in Whatcom County, Washington. The plea arose out of allegations that he had forcible sex with his then live-in, but estranged, girlfriend who was six months' pregnant with twins. Mr. Hinckley received a sentence of sixty (60) days in jail and twelve (12) months of community supervision, and was informed of his obligation to register as a sex offender in Washington. He was later convicted in March 2004 for failure to register in Washington State and received a sentence of three months. Upon his release on April 21, 2004, Mr. Hinckley registered as a sex offender in Washington.

In December 2005, Mr. Hinckley informed Washington authorities of his intention to move to Vian, Oklahoma, to live with his grandparents. Whatcom County authorities report that Mr. Hinckley was informed of his duty to register as a sex offender with the sheriff's office of the county to which he was moving in Oklahoma. On March 20, 2006, Mr. Hinckley applied for an Oklahoma Identification Card and signed an acknowledgment that he was required to register as a sex offender under Oklahoma law. In August 2006, Mr. Hinckley obtained employment with Mr. David Graham that required him to travel on a daily basis to Arkansas. Then, on January 24, 2007, Mr. Hinckley appeared at the Sallisaw Police Department to report a crime, and authorities discovered that Mr. Hinckley had not registered in Oklahoma. That same day, Mr. Hinckley registered as a sex offender at the Sequoyah County sheriff's office.

On March 14, 2007, federal authorities indicted Mr. Hinckley on one count of violating the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. The indictment charged Mr. Hinckley in the Eastern District of Oklahoma as "an individual required to register ... after becoming required to register, [with traveling] in interstate commerce, and ... knowingly fail[ing] to register and update registration as required" during the period March 4, 2004, to January 24, 2007. On March 29, 2007, Mr. Hinckley filed a motion to dismiss the indictment. The district court denied Mr. Hinckley's motion. Mr. Hinckley then entered a conditional plea of guilty, reserving his right to appeal the district court's order denying his motion to dismiss. In December 2007, the district court sentenced him to twenty-four (24) months' imprisonment and sixty (60) months' supervised release. Mr. Hinckley now appeals.


The issues in this case involve statutory interpretations of and constitutional challenges to SORNA. We review such issues de novo, "`interpret[ing] the words of the statute in light of the purposes Congress sought to serve.'" Wright v. Fed. Bureau of Prisons, 451 F.3d 1231, 1233-34 (10th Cir.2006) (quoting Hain v. Mullin, 436 F.3d 1168, 1176 (10th Cir.2006) (en banc)); see also Bd. of County Comm'rs, Fremont County, Colorado v. U.S. E.E.O.C., 405 F.3d 840, 847 (10th Cir.2005). We begin with the language of the statute and "read the words of the statute `in their context and with a view to their place in the overall statutory scheme.'" Wright, 451 F.3d at 1234 (quoting Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000)).

A. Applicability of SORNA

Mr. Hinckley argues that (1) his indictment is invalid because SORNA had not been enacted or implemented when he was alleged to have violated it; and (2) he was not required to register under SORNA until February 28, 2007, when the Attorney General issued an Interim Rule clarifying SORNA's retroactivity. The district court determined that "it is apparent from the plain language of the statute that SORNA applies to [Mr. Hinckley]." United States v. Hinckley, CR-07-18-RAW (E.D. Okla. April 18, 2007) (Order denying Mr. Hinckley's motion to dismiss the indictment).

SORNA provides, in pertinent part:

(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.

(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 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(a)-(d).

The Attorney General issued his Interim Rule on February 28, 2007, "making it indisputably clear that SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted." 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). The Rule states that "SORNA's direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to all offenders in the categories for which SORNA requires registration." Id. at 8895.

The courts are split on the meaning of subsection (d), and whether sex offenders who failed to register during the "gap period" between SORNA's enactment and the Interim Rule have violated the registration requirements of subsection (a).1 Because we find ambiguity in subsection (d), we look to the provision's title and surrounding context, as well as the Act's history and purpose to determine its meaning. We find the reasoning of the Eighth Circuit in United States v. May, 535 F.3d 912 (8th Cir.2008), persuasive and adopt it here. We hold that Mr. Hinckley violated SORNA by failing to register as a sex offender in Oklahoma after traveling in interstate commerce.

We begin with a brief discussion of the opposing interpretations of subsection (d) that courts have offered. To focus the discussion, we analyze the decisions of our sister circuits in United States v. Madera, 528 F.3d 852 (11th Cir.2008) (per curiam), and May, 535 F.3d 912. While both cases involve a slightly different fact pattern than Mr. Hinckley's, their analysis is relevant. Madera involved a defendant who traveled in interstate commerce prior to SORNA's enactment in July 2006, and was arrested, prosecuted, and convicted prior to the Attorney General's issuance of the clarifying Interim Rule.2 Madera, 528 F.3d at 854. May is more analogous to the instant fact pattern, in that it involved a defendant who traveled in interstate commerce after SORNA's enactment in July 2006, failed to register in the new jurisdiction, and was arrested and convicted after promulgation of the Interim Rule. May, 535 F.3d at 915. The factual background now before us involves a defendant who traveled in interstate commerce after SORNA's enactment in July 2006, failed to register in the new jurisdiction until January 2007, and was arrested and convicted after promulgation of the Interim Rule.

In Madera, the court relied on the reasoning in United States v. Kapp, 487 F.Supp.2d 536 (M.D.Pa.2007), and concluded that subsection (d) comprises two separate clauses. "The first gives the Attorney General authority to determine whether SORNA applies retroactively to all sex offenders, and the second gives the Attorney General autho...

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