United States v. Stevenson

• Decision Date: 23 February 2012
• Docket Number: 10–1117.,Nos. 10–1043,s. 10–1043
• Citation: 676 F.3d 557
• Parties: UNITED STATES of America, Plaintiff–Appellant, v. Derick STEVENSON; Carlos Flowers, Defendants–Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

676 F.3d 557

UNITED STATES of America, Plaintiff–Appellant,

v.Derick STEVENSON; Carlos Flowers, Defendants–Appellees.

Nos. 10–1043

10–1117.

United States Court of Appeals, Sixth Circuit.

Feb. 23, 2012.

ON BRIEF: Patricia Gaedeke, Assistant United States Attorney, Detroit, MI, for Appellant. Todd A. Shanker, Federal Defender Office, Detroit, MI, for Appellees.Before: MERRITT and MOORE, Circuit Judges; MAYS, District Judge. ^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Carlos Flowers and Derick Stevenson were both convicted of state-law sex offenses requiring them to register before the enactment of the federal Sex Offender Registration and Notification Act (“SORNA”), 120 Stat. 590, 42 U.S.C. § 16901 et seq. (2006 ed. and Supp. III). Both were indicted for traveling in interstate commerce in 2009 and knowingly failing to update their registrations. The district court dismissed each of their indictments, holding that SORNA had not yet been made retroactively applicable to defendants like Flowers and Stevenson. The United States timely appealed, and their cases were consolidated. We reaffirm our analysis in United States v. Utesch, 596 F.3d 302 (6th Cir.2010), which was decided after the district court issued its opinions, and hold that SORNA became retroactively effective on August 1, 2008. We therefore REVERSE.

I. BACKGROUND

Stevenson and Flowers were both convicted of state-law crimes that required them to register as sex offenders before the enactment of SORNA. In 1997, Stevenson was convicted of contributing to the delinquency of a minor in the state of Louisiana, which required him to register as a sex offender in Louisiana.¹ In 1994, Flowers was convicted of second-degree criminal sexual conduct in the state of Michigan, which required him to register as a sex offender under Michigan law.

In 2009, Stevenson and Flowers were each indicted for traveling in interstate commerce and knowingly failing to update their registrations in violation of 18 U.S.C. § 2250(a). Stevenson allegedly traveled without updating his registration between March and June 2009 and was indicted on July 8, 2009. Flowers allegedly traveled without updating his registration in May 2009 and was indicted on September 15, 2009.

Both Stevenson and Flowers moved to dismiss their indictments, arguing that SORNA did not retroactively apply to them. While their motions were pending, we issued our opinion in United States v. Cain, 583 F.3d 408 (6th Cir.2009), holding that SORNA was not made retroactive of its own force. We also held that the Interim Rule issued by the Attorney General on February 28, 2007, failed to make SORNA retroactive because it violated the Administrative Procedure Act. Cain, 583 F.3d at 424. The district court dismissed both Stevenson's and Flowers's indictments on the basis of Cain, holding that no valid rule had yet been promulgated at the time of Flowers's and Stevenson's interstate travel. The government timely appealed both dismissals.

II. ANALYSIS

We review de novo the applicability of a statute such as SORNA. Utesch, 596 F.3d at 306.

A. Overview of SORNA

SORNA became effective on July 27, 2006, the date that the President signed it into law. Cain, 583 F.3d at 411. SORNA makes it a crime for an individual who is required to register under the act to travel in interstate commerce and fail to register. See 18 U.S.C. § 2250(a). The registration requirement is spelled out in 42 U.S.C. § 16913 and permits the Attorney General to “specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter.” 42 U.S.C. § 16913(d). The Attorney General is also instructed to “issue guidelines and regulations to interpret and implement this subchapter.” 42 U.S.C. § 16912(b).

On February 28, 2007, the Attorney General issued an interim rule making SORNA immediately effective to all sex offenders, including those convicted of the offense for which registration is required before SORNA's enactment. 28 C.F.R. § 72.3 (“Interim Rule”); 72 Fed.Reg. 8894. The Attorney General maintained that the rule qualified for the “good cause” exception to the procedural requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 553(b)(3)(B). The Attorney General nonetheless announced he would accept comments until April 30, 2007.

On May 30, 2007, the Attorney General published proposed guidelines from the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, called the SMART guidelines. The SMART guidelines stated that they were promulgated pursuant to the Attorney General's authority under 42 U.S.C. § 16912(b) to interpret and implement SORNA and restated the Attorney General's position that SORNA applied to all sex offenders, “including those whose convictions predate the enactment of the Act.” 72 Fed.Reg. 30,210, 30,212. These guidelines were made open to comments until August 1, 2007. On July 2, 2008, the Attorney General published the final version of the SMART guidelines. 73 Fed.Reg. 38,030. In the final version, the Attorney General responded to comments regarding the issue of retroactivity, but kept the language the same. The final SMART guidelines stated their effective date as July 2, 2008, the date of publication.

On December 29, 2010, the Attorney General, without conceding that the Interim Rule and the SMART guidelines were invalid, responded further to the comments he had received on the issue of retroactivity and “finaliz[ed]” the Interim Rule to dispel any doubts regarding the retroactivity of SORNA. 75 Fed.Reg. 81,849, 81,850. The Attorney General stated that the effective date of this latest final rule was January 28, 2011, which was thirty days after its publication.

B. Current Law on Retroactivity of SORNA

Absent a valid rule by the Attorney General, SORNA is not retroactive to defendants like Flowers and Stevenson who were convicted of sex offenses requiring them to register before July 27, 2006. Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 984, 181 L.Ed.2d 935 (2012) (resolving Circuit split); Cain, 583 F.3d at 419. Pre-enactment offenders cannot be convicted of violating SORNA for interstate travel completed before the Attorney General issues a final rule. In deciding Reynolds, the Supreme Court left open whether any of the many rules issued after SORNA's enactment constituted such a valid rule. It simply ruled that SORNA's retroactive application to prior offenders was not self-executing. The only issue in the case before us, therefore, is whether the Attorney General had issued a valid rule at the time of Stevenson's and Flowers's interstate travel in 2009.

In Cain, 583 F.3d at 422–24, we held that the Interim Rule issued by the Attorney General in February 2007 was not valid under the APA because the Attorney General lacked good cause to dispense with the notice-and-comment and thirty-day publication requirements.² Because the defendant in Cain traveled in March of 2007, before the close of the comments period, the court in Cain took no position regarding whether SORNA would be validly retroactive against those who traveled following the close of comments on April 30, 2007, or thirty days thereafter on May 30, 2007. Id. at 423 n. 6, 424 n. 7.

We resolved the issue left open in Cain when we decided Utesch. 596 F.3d at 310. The defendant in Utesch traveled interstate in November 2007. Utesch held that the Interim Rule was invalid under the APA, even following the close of comments and thirty days of publication. Id. (“[W]e have no indication that the notice-and-comment process was actually carried out.”). We held this procedural deficiency was not harmless error because the “affected parties [had] no opportunity to participate in the crafting of the interim rule before it purported to take effect against them.” Id. at 312.

Utesch also held that the preliminary SMART guidelines published in May 2007 could not make SORNA retroactive because the APA process was not complete at the time of the defendant's travel in November 2007. Id. at 310–11. We concluded, however, that the process used by the Attorney General for the final SMART guidelines was “precisely what the APA requires.” Id. at 310. The guidelines were made available for comment, and following review and discussion of the comments, the Attorney General issued a final rule on July 2, 2008. Because the APA requires thirty days before a rule can become effective, we determined that the SMART guidelines became effective on August 1, 2008.

The government's sole argument on appeal is that the district court's dismissals of Stevenson's and Flowers's indictments must be reversed because Utesch “held” that SORNA became retroactive on August 1, 2008. Stevenson and Flowers were indicted for traveling and failing to register in 2009. If the SMART guidelines were indeed a valid final rule, the district court's holdings must be reversed. Although the government is correct that Utesch unequivocally states, “SORNA became effective against offenders convicted before its enactment ... on August 1, 2008,” 596 F.3d at 311, the defendants are correct that this language is technically dictum because it was not necessary to the holding. See Williams v. Anderson, 460 F.3d 789, 811 (6th Cir.2006). At issue in Utesch was only whether the proposed SMART guidelines could be a valid final rule, because those were the only published guidelines available at the time of the defendant's interstate travel. Although useful to our analysis, our conclusion regarding when the SMART guidelines became final was not required in order for us to hold that there was no valid rule in place at the time of Utesch's travel in November 2007 or for us to hold that the Attorney General's errors in promulgating the Interim Rule were not harmless.

The government also argues that this court's opinion in United States v. Trent, 654 F.3d 574, 581 (6th Cir.2011), cert. denied, ––– U.S. ––––, 132...