U.S. v. Valverde

• Decision Date: 27 December 2010
• Docket Number: No. 09-10063,09-10063
• Citation: 628 F.3d 1159
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Mark Anthony VALVERDE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

628 F.3d 1159

UNITED STATES of America, Plaintiff-Appellant,

v.Mark Anthony VALVERDE, Defendant-Appellee.

No. 09-10063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 23, 2010.

Filed Dec. 27, 2010.

Laurel D. White, Assistant U.S. Attorney, for the plaintiff-appellant.

Rachelle Barbour, Sacramento, CA, and David Miles Porter, Assistant Federal Public Defender for the defendant-appellee.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior District Judge, Presiding. D.C. No. 2:08-cr-00187-LKK-1.

Before MARY M. SCHROEDER, STEPHEN REINHARDT and MICHAEL DALY HAWKINS, Circuit Judges.

OPINION

REINHARDT, Circuit Judge:

The Government appeals a decision of the district court dismissing the indictment of Mark Anthony Valverde ("Valverde") under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., on the ground that the registration and penalty provisions of the statute under which Valverde was charged, 42 U.S.C. § 16913; 18 U.S.C. § 2250(a)(2)(B), are invalid exercises of congressional power under the Commerce Clause. U.S. Const. art. I, § 8, cl. 3. We stayed this matter pending a decision on that issue in United States v. George, 625 F.3d 1124 (9th Cir.2010). Valverde contends in addition that no valid statute or properly promulgated rule made SORNA's registration requirements applicable to him as of the time that he is charged with failing to register, specifically in January 2008.

We lift the stay issued pending the panel's decision in George and reject Valverde's Commerce Clause argument in light of that decision. We AFFIRM, however, the district court's dismissal of the indictment. We do so on the separate ground that the Attorney General's interim regulation of February 28, 2007—applying SORNA's registration requirements retroactively to sex offenders, such as Valverde, who were convicted before the statute's enactment—did not comply with the notice and comment procedures of the Administrative Procedure Act ("APA"), and did not qualify for the "good cause" exemption under 5 U.S.C. § 553(d)(3). As a result, the retroactivity provision did not become effective until August 1, 2008—30 days after its publication in the final SMART guidelines along with the Attorney General's response to related public comments.

I. BACKGROUND

A. Factual Background

In 2002, Valverde pled guilty in California Superior Court to eleven counts of sexual abuse of a minor under 16 and onecount of child pornography. He was sentenced to twelve years in prison. Prior to his release, Valverde signed a form notifying him that under California law he was required to register as a sex offender within five days of his release from prison, and that if he moved to another state, he was required to register there within ten days. Valverde was released in California in January 2008 with an instruction to report to a parole officer the next day. He did not report, however, and was apprehended later that month at his grandmother's house in Missouri, having registered as a sex-offender in neither California nor Missouri. Valverde's offenses under California law are not at issue in this case.

B. Procedural Background

In April 2008, defendant was indicted under SORNA, 42 U.S.C. § 16913, for having traveled, between January 6, 2008 and January 23, 2008, in interstate and foreign commerce and thereafter having knowingly failed to register as a sex offender as required by 18 U.S.C. § 2250. In February 2009, the district court dismissed the indictment, holding that neither 42 U.S.C. § 16913, which establishes the requirement that sex offenders register, nor 18 U.S.C. § 2250, which imposes criminal penalties for the failure to register, are valid exercises of congressional authority to regulate interstate commerce. The district court reasoned that these registration and penalty provisions of SORNA did not fall under any of the three categories of activity that Congress may regulate pursuant to its commerce power, as set forth by the Supreme Court in United States v. Lopez, 514 U.S. 549, 555, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). The district court did not rule on Valverde's separate legal contention that no valid statute or properly promulgated rule made SORNA's registration requirements retroactively applicable to him as of the date that he is charged with failing to register under 42 U.S.C. § 16913.

II. ANALYSIS

A. Commerce Clause

On September 29, 2010, this court held that the SORNA provisions that the district court in Valverde declared invalid under the Commerce Clause were legitimate exercises of Congress's commerce power. United States v. George, 625 F.3d 1124, 1130 (9th Cir.2010) (reasoning that SORNA's registration requirements "are reasonably aimed at regulating persons or things in interstate commerce and the use of the channels of interstate commerce." (citation and quotation marks omitted)). That holding controls here. We therefore hold that the district court erred in dismissing Valverde's indictment on the ground that 42 U.S.C. § 16913 and 18 U.S.C. § 2250 were an invalid exercises of congressional authority under the Commerce Clause.

The remaining question at issue is when SORNA became effective retroactively to sex offenders convicted before the statute's enactment.¹ Having considered Valverde's argument that SORNA's retroactivity provision did not become valid until the APA's notice and comment requirements were satisfied, as well as having reviewed the Government's brief on thatquestion, and having heard oral argument on that point from both parties, we now hold that the effective date of the retroactivity provision is the date on which that provision fulfilled the requirements of the APA.

B. Standard of Review

We need not decide the standard of review in order to determine the date on which the Attorney General's interim rule, 28 C.F.R. § 72.3 (2007), became effective in light of the notice and comment procedures of the APA. 5 U.S.C. § 553(b)(B), (d)(3). Valverde contends that we should apply a de novo standard of review, as we did in Reno-Sparks Indian Colony v. E.P.A., 336 F.3d 899 (9th Cir.2003). In that case, we considered the validity of rules issued by the Environmental Protection Agency that failed to comply with the Administrative Procedure Act's required notice and comment procedures. The Government argues that we should apply an "arbitrary, capricious, or abuse of discretion" standard, 5 U.S.C. § 706(2)(A), in reviewing the agency's—here, the Attorney General's—determination as to the effective date of its regulation. Because we would, under either standard, affirm the dismissal of the indictment on the ground that no validly promulgated regulation had applied SORNA retroactively to Valverde at the time of his failure to register, we need not determine whether a de novo or an abuse of discretion standard of review applies here.

C. Retroactive Application of SORNA to Valverde

SORNA, which became effective on July 27, 2006, requires an individual convicted of a sex offense to "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). The statute does not specify whether its registration requirements apply retroactively to a sex offender who, like Valverde, was convicted before the statute's effective date. 42 U.S.C. § 16913(b). Congress instead delegated to the Attorney General the "authority to specify the applicability of the requirements of [SORNA's registration requirements] to sex offenders convicted before [the statute's] enactment [on July 27, 2006] or its implementation in a particular jurisdiction" and the authority "to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with" the Act's registration requirements. 42 U.S.C. § 16913(d).

Pursuant to this delegation of authority, on February 28, 2007, seven months after the statute's enactment, U.S. Attorney General Alberto Gonzales issued an interim rule applying SORNA 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. In issuing the interim rule, the Attorney General declined to comply with the procedural requirements of the APA. 5 U.S.C. § 551 et seq. Under the APA, rulemaking is generally required to comply with a three-step process: (1) notice of a proposed rule must be given by publication in the Federal Register, 5 U.S.C. § 553(b); (2) following publication of the proposed rule, 30 days must be provided for public comment; (3) notice of a final rule must be given by publication in the Federal Register, normally accompanied by a response to concerns raised in the public comments, "not less than 30 days before [the rule's] effective date...." 5 U.S.C. § 553(d)(3). The APA permits an Agency to promulgate valid regulations without complying with these procedures, however, if it "for good cause finds (and incorporates the finding and a brief statement of reasons thereforin the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest." 5 U.S.C. § 553(b)(3)(B).

The Attorney General relied upon the good cause exception in seeking to make the February 28, 2007 interim rule applying SORNA retroactively effective immediately and to render inapplicable the requirements for advance publication, public comment, and Agency response. 72 Fed.Reg. at 8895. In a statement accompanying the interim rule, the Attorney General did not state that notice and comment was "impracticable" or "unnecessary," but solely that it was "contrary to the public interest."

The immediate effectiveness of this rule is necessary to

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