United States v. Newton

• Decision Date: 25 February 2015
• Docket Number: 14-0415
• Parties: UNITED STATES, Appellee v. William E. NEWTON Jr., Specialist U.S. Army, Appellant
• Court: United States Court of Appeals, Armed Forces Court of Appeals

74 M.J. 69

UNITED STATES, Appellee v. William E. NEWTON Jr., Specialist U.S. Army, Appellant

No. 14-0415

United States Court of Appeals, Armed Forces

February 25, 2015

Argued November 19, 2014.

Crim App. No. 20110499. Military Judges: Jacqueline L. Emanuel and David H. Robertson.

For Appellant: William E. Cassara, Esq. (argued); Captain Patrick J. Scudieri (on brief); Captain James S. Trieschmann Jr.

For Appellee: Captain Daniel M. Goldberg (argued); Colonel John P. Carrell and Lieutenant Colonel James L. Varley (on brief).

BAKER C.J., ERDMANN and STUCKY, JJ., and COX, S.J., joined.

OPINION

RYAN, Judge.

Contrary to his pleas, a general court-martial composed of officer and enlisted members convicted Appellant of rape of a child under the age of twelve, indecent acts, wrongfully sending a lewd picture to a child under the age of eighteen, and knowingly failing to register as a sex offender as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a) (2006), in violation of Articles 120 and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § § 920, 934 (2006). The timeframe during which the SORNA violation was alleged to have occurred was between October 1, 2009, and July 29, 2010.

The Court of Criminal Appeals (CCA) modified some specifications not relevant to this appeal, and then affirmed the remaining findings and sentence as modified.

We granted review of the following issue:

WHETHER THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT (SORNA), 18 U.S.C. § 2250(a) (2006), APPLIED TO APPELLANT AS A RESULT OF EITHER THE ATTORNEY GENERAL'S 2007 INTERIM RULE OR HIS 2008 GUIDELINES. SEE, E.G., UNITED STATES v. LOTT, 750 F.3d 214 (2d Cir. 2014); UNITED STATES v. REYNOLDS, 710 F.3d 498 (3d Cir. 2013).

The 2008 Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Guidelines provide, as is relevant to the instant case, that an individual convicted of any of the statutorily defined sex offenses before the date that SORNA took effect is required to register as a sex offender under SORNA. The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,046 (July 2, 2008) [hereinafter 2008 SMART Guidelines]. This retroactive application provision is a substantive rule that was promulgated pursuant to the Attorney General's statutory authority to make SORNA's registration requirement apply to pre-act offenders. 42 U.S.C. § 16913(d) (2012). Further, this rule was promulgated according to proper notice and comment procedures as required by § 553 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (2012). Accordingly, Appellant had a duty to register as a sex offender under SORNA, and we need not address the question whether the Attorney General had good cause to forego the notice and comment procedures when promulgating the 2007 Interim Rule.^[1] Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. pt. 72) [hereinafter 2007 Interim Rule]; see United States v. Lott, 750 F.3d 214, 217 (2d Cir. 2014); United States v. Whitlow, 714 F.3d 41, 45 (1st Cir. 2013).

I. FACTUAL BACKGROUND

On October 2, 1995, Appellant pleaded guilty in Missouri Circuit Court to a charge of statutory rape of a fourteen-year-old girl. He received two years' probation. On October 2, 1995, and November 6, 1995, Appellant signed forms issued by the Missouri Department of Public Safety that confirmed his obligation to register in Missouri as a sex offender and to inform the chief law enforcement official of the county with jurisdiction over his new residence or address if he moved. Appellant began active duty in the Army on April 23, 1998. On October 1, 2009, the Army sent to Appellant, then stationed at Fort Jackson, South Carolina, permanent change of station orders to report to Fort Bliss, Texas, on November 10, 2009. He did not register as a sex offender upon his arrival in Texas in early November 2009; Appellant registered nine months later, on July 29, 2010, after he was contacted by the local police regarding his failure to register.

II. THE ATTORNEY GENERAL'S IMPLEMENTATION OF SORNA

On July 27, 2006, SORNA became effective. Pub. L. No. 109-248, 120 Stat. 587 (2006) (codified at 18 U.S.C. § 2250 and 42 U.S.C. § § 16911-29). On February 28, 2007, the Attorney General published the 2007 Interim Rule. 2007 Interim Rule, 72 Fed.Reg. at 8894. Citing 42 U.S.C. § 16913(d), the Attorney General declared, " SORNA applies to all sex offenders (as the Act defines that term) regardless of when they were convicted." 2007 Interim Rule, 72 Fed.Reg. at 8896. The Attorney General explained that the 2007 Interim Rule " serves the narrower, immediately necessary purpose of foreclosing 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 invoked the " good cause" exception to forego the notice and comment procedures required by § 553(b)(3)(B) of the APA and declared that the 2007 Interim Rule was effective immediately. 2007 Interim Rule, 72 Fed.Reg. at 8896. The Attorney General noted, however, that he would " hereafter issue general guidelines to provide guidance and assistance to the states and other covered jurisdictions in implementing SORNA, as was done under the Wetterling Act, see 64 [Fed.Reg.] 572 (Jan. 5, 1999), and may also issue additional regulations as warranted." Id.

A few months later, on May 30, 2007, the Attorney General published the notice of proposed rulemaking for what became the 2008 SMART Guidelines in the Federal Register; he took comments on the proposed guidelines until August 1, 2007. The National Guidelines for Sex Offender Registration and Notification, 72 Fed.Reg. 30,210-34 (proposed May 30, 2007) [hereinafter Proposed SMART Guidelines]. The notice of proposed rulemaking cited 42 U.S.C. § 16913(d) as the basis of the Attorney General's power to make a rule specifying that SORNA's registration requirement applies retroactively. Id. at 30,212. The Attorney General published the final 2008 SMART Guidelines on July 2, 2008. 2008 SMART Guidelines, 73 Fed.Reg. 38,030.^[2] The 2008 SMART Guidelines cite the congressional directive in SORNA, 42 U.S.C. § 16912(b), that the Attorney General issue guidelines to " interpret and implement" SORNA as the authority for his rulemaking. 2008 SMART Guidelines, 73 Fed.Reg. at 38,030. In responding to comments regarding the requirement that pre-act offenders must register, the Attorney General specifically described how the 2008 SMART Guidelines addressed those concerns. Id. at 38,031. The Attorney General's position was that " SORNA's requirements took effect when SORNA was enacted on July 27, 2006, and they have applied since that time to all sex offenders, including those whose convictions predate SORNA's enactment." Id. (citing 2007 Interim Rule, 72 Fed.Reg. at 8895-96).

III. DISCUSSION

The Appellant challenges his conviction of knowingly failing to register as a sex offender on the ground that, during the charged timeframe, October 1, 2009, to July 29, 2010, no validly promulgated rule made SORNA's registration requirement applicable to those whose sex offense convictions predate SORNA's effective date. Appellant contends that the retroactive application provision of the 2008 SMART Guidelines is merely interpretative, does not have the force of law, and thus does not make SORNA applicable to pre-act offenders. We disagree.

A. SUBSTANTIVE AND INTERPRETATIVE RULES UNDER THE APA

This case, which requires traversing the field of administrative law, is one of first impression for this Court, but an area well covered by other federal appellate courts. The APA distinguishes between two kinds of rules: substantive rules and interpretative rules. 5 U.S.C. § 553(b)-(d). A rule is substantive, and has the force of law, " only if Congress has delegated legislative power to the agency and if the agency intended to exercise that power in promulgating the rule." American Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109, 302 U.S.App.D.C. 38 (D.C. Cir. 1993) (finding the 1947 Attorney General's Manual on the Administrative Procedure Act persuasive for defining a substantive rule). A substantive rule " modifies or adds to a legal norm based on the agency's own authority. That authority flows from a congressional delegation to promulgate substantive rules, to engage in supplementary lawmaking." Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 95, 326 U.S.App.D.C. 422 (D.C. Cir. 1997).

An interpretative rule, by contrast, " reflects an agency's construction of a statute that has been entrusted to the agency to administer. The legal norm is one that Congress has devised; the agency does not purport to modify that norm." Id. at 94. An agency's interpretative rule is afforded some deference, United States v. Mead Corp., 533 U.S. 218, 233, 234-35, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001), but " do[es] not have the force and effect of law" and is merely used by " an agency to advise the public of the agency's construction of the statutes and rules which it administers." Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 99, 115 S.Ct. 1232, 131 L.Ed.2d 106 (1995) (quoting Chrysler Corp. v. Brown, 441 U.S. 281, 302 n.31, 99 S.Ct. 1705, 60 L.Ed.2d 208 (1979)); 5 U.S.C. § 553(d).

When faced with the task of distinguishing between a substantive and an interpretative rule, most federal courts of appeals use some variation of the legal effects test. See American Mining Cong., 995 F.2d at 1112 (holding that the line between substantive and interpretative rules is drawn based on whether the rule has " legal effect" ); accord Lott, 750 F.3d at...