United States v. Felts

• Decision Date: 12 March 2012
• Docket Number: No. 11–5237.,11–5237.
• Citation: 674 F.3d 599
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David Wayne FELTS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

674 F.3d 599

UNITED STATES of America, Plaintiff–Appellee,
v.
David Wayne FELTS, Defendant–Appellant.

No. 11–5237.

United States Court of Appeals, Sixth Circuit.

March 12, 2012.

[674 F.3d 601]

ON BRIEF: Jude T. Lenahan, Andrew C. Brandon, Federal Public Defender's Office, Nashville, Tennessee, for Appellant. Lynne T. Ingram, Assistant United States Attorney, Nashville, Tennessee, for Appellee.Before: BOGGS and GIBBONS, Circuit Judges; and RUSSELL, District Judge.^*

[674 F.3d 602]

OPINION BOGGS, Circuit Judge.

David Wayne Felts was convicted for failing to register under the Sex Offender Registration Notification Act (“SORNA”) in Tennessee. Felts's appeal presents a case of first impression for this Circuit—can an offender be convicted for failure to register under SORNA if his home state, Tennessee, has not yet completely implemented the act? Felts challenges the district court's denial of his motion to dismiss the indictment. In concert with six other circuits, we hold that SORNA is effective in a state, even prior to its complete implementation. Felts's alternate constitutional arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine, and the Tenth Amendment—are without merit.

I

Felts served fifteen years of imprisonment for a 1994 conviction for rape of a child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a different twelve-year-old victim) on October 26, 1993. After his release, Felts, along with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan, Puerto Rico, without notifying the registration authorities in his home state of Tennessee. Felts was indicted on one count of failing to register under SORNA, in violation of 18 U.S.C. § 2250(a). The district court denied Felts's motion to dismiss, after which Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now appeals the denial of the motion to dismiss.

This court reviews de novo a district court's purely legal determinations, including determinations regarding statutory construction and the constitutionality of a federal statute. United States v. Hart, 635 F.3d 850, 856 (6th Cir.2011). Because Felts raises only legal errors, all issues before this court are reviewed de novo.

II A

Congress passed the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq., on July 27, 2006 for the purpose of “creat[ing] a national system for the registration of sex offenders.” United States v. Utesch, 596 F.3d 302, 306 (6th Cir.2010) (citing 42 U.S.C. § 16901). Rather than establishing a federal agency to implement SORNA, Congress, through its spending power, U.S. Const. Art. I, § 8, directed all states and the District of Columbia to create local registries that comply with specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).

SORNA imposes an obligation on a sex offender 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). Pursuant to SORNA, a sex offender is also required, “not later than 3 business days after each change of name, residence, employment, or student status, to appear in person” to update his or her registration information. 42 U.S.C. § 16913(c). 18 U.S.C. § 2250(a) mandates that whoever “is required to register under the Sex Offender Registration and Notification Act,” is a “sex offender,” and if he “knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act,” he “shall be fined under this title or imprisoned not more than 10 years, or both.”

The original deadline for states to implement SORNA was July 27, 2009. See 42 U.S.C. § 16924(a)(1)-(2) (“Each jurisdiction

[674 F.3d 603]

shall implement this title before the later of 3 years after the date of the enactment of this Act [enacted July 27, 2006]”). Currently, 15 states have “substantially implemented SORNA's requirements”: Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi, Missouri, Nevada, Ohio, South Carolina, South Dakota, Wyoming, and most saliently, Tennessee. U.S. Dep't of Justice, SMART Office “Newsroom,” http:// www. ojp. usdoj. gov/ smart/ newsroom. htm (last visited Mar. 8, 2012). As of the date of Felts's federal conviction for failure to register, however, Tennessee had not yet substantially implemented SORNA. Appellant Br. at 13 (“Though Tennessee's own sex registration form includes notification of the federal duty to register and alerts registrants to possible federal criminal penalties of ‘up to 10 years imprisonment,’ Tennessee has not yet taken the additional steps required to achieve substantial implementation.”).

B

This appeal presents a case of first impression for this circuit ¹—if Tennessee failed to implement SORNA, does Felts's failure to register in Tennessee's registry constitute a failure to register as required by SORNA?

The answer to that question—based on case law from all other circuits to look at this issue—is yes. The duty to register in a state registry is independent of a state's degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.2010) (“SORNA creates a federal duty to register with the relevant existing state registries regardless of state implementation of the specific additional requirements of SORNA.”); United States v. George, 625 F.3d 1124, 1128 (9th Cir.2010) (“Without regard to whether SORNA is implemented by Washington or any other state, registration under it is required.”); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir.2010), abrogated on other grounds by Reynolds v. United States, –––U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir.2009) (“SORNA was not enacted in a vacuum. To the contrary, every state and the District of Columbia had a sex offender registration law prior to 2006. An individual may therefore comply with SORNA's registration requirements by registering through the state's sex offender registry, even if that jurisdiction has not implemented SORNA's administrative procedures.”) (citations omitted); United States v. Gould, 568 F.3d 459, 465–66 (4th Cir.2009) (“We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the States to implement the enhanced registration and notification standards of SORNA. Accordingly, SORNA's requirement that a sex offender register applies whether registration would be accomplished through preSORNA registration facilities or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939 (10th Cir.2008), abrogated on other

[674 F.3d 604]

grounds by Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) (finding that defendant had “knowledge of his duty to register under similar state and federal provisions”). Felts cites no contrary precedents.

Felts argues that “SORNA ... appears to require that persons register under its provisions only when States actually implement SORNA's regulatory scheme.” Appellant Br. at 15. From the context, it appears that by “actually implement,” Felts means that a state “fully implements” SORNA. This cannot be correct, as at the time of SORNA's enactment in 2006, no state's registry was in compliance with SORNA. For Felts's argument to be true, Congress—which provided the states with three years to comply without penalty—would have effectively rendered SORNA nugatory in any non-compliant state until 2009.

Or, if a state chooses not to comply with SORNA—its sovereign prerogative, so long as it is willing to forego federal funding—a resident-sex offender would never have to register under federal law. See Shenandoah, 595 F.3d at 157 (“New York and Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego a portion of their federal funding. This failure to implement a federal law, however, does not give sex offenders a reason to disregard their federal obligation to update their state registrations.”). At the time of the enactment of SORNA, “every state and the District of Columbia had a sex offender registration law” and “an individual may therefore comply with SORNA's registration requirements by registering through the state's sex offender registry, even if that jurisdiction has not implemented SORNA's administrative procedures.” Brown, 586 F.3d at 1349.

We reject Felts's argument and concur with the reasoning of our sister courts. The duty of an offender to register is independent of whether or not the state has implemented SORNA. Even assuming that Tennessee's registry in 2010 was not up to SORNA's standards, Felts still could have registered with it. This much is clear. But what happens if inconsistencies between the non-complying state and federal regimes limit the ability of an offender to register?

C

Felts's broader argument—essentially a facial, rather than an as-applied challenge—is that no one, not just Felts, could be prosecuted for a violation of SORNA if there is any inconsistency between the federal and non-complying state regimes, thereby meaning that an offender would lack “fair notice” of what is prohibited. See United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (“A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.”). That...