USA v. Ditomasso, No. 08-2567.

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Citation621 F.3d 17
Docket NumberNo. 08-2567.
PartiesUNITED STATES of America, Appellee, v. Michael DiTOMASSO, Defendant, Appellant.
Decision Date22 September 2010

OPINION TEXT STARTS HERE

Kevin J. Fitzgerald, Assistant Federal Public Defender, for appellant.

Milind M. Shah, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before BOUDIN, SELYA and GAJARSA, * Circuit Judges.

SELYA, Circuit Judge.

The Sex Offender Registration and Notification Act (SORNA), Pub.L. No. 109-248, tit. I, §§ 101-155, 120 Stat. 587, 590-611 (2006), fashioned a national scheme for the registration of sex offenders. This appeal requires us to decide a question about that scheme that has divided the courts of appeals: When did SORNA's registration requirements become operative with respect to a previously convicted sex offender who traveled interstate and failed to register between SORNA's effective date and the promulgation of an interim rule clarifying SORNA's reach? After determining that the registration requirements became generally operative at the time when SORNA was signed into law and rejecting a series of constitutional challenges to the registration scheme, we affirm the defendant's conviction for failure to register.

I. BACKGROUND

Because this appeal follows a conviction predicated on a guilty plea, we draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report, and the sentencing transcript. See, e.g., United States v. Cintrón-Echautegui, 604 F.3d 1, 2 (1st Cir.2010); United States v. Dietz, 950 F.2d 50, 51 (1st Cir.1991).

Defendant-appellant Michael DiTomasso was convicted of sex offenses in Massachusetts in 1995. Upon his release from prison, Massachusetts law required him to register as a sex offender, and he did so. He was on notice that, if he moved out of state, he would have to register as a sex offender in the new venue.

The defendant kept his Massachusetts registration current through the fall of 2006. In February of 2007, he moved to Woonsocket, Rhode Island, 1 and took up residence there. Despite this change of domicile, he did not register as a sex offender in Rhode Island.

On March 27, 2007, a local police officer informed the defendant that Rhode Island law required him to register. The officer told him that he should report to the police station for that purpose within the week. The defendant did not comply.

On April 4, 2007, the defendant was arrested for failing to register as a sex offender in Rhode Island. Spurred by this arrest, a federal grand jury handed up an indictment charging the defendant with failing to register under SORNA. See 18 U.S.C. § 2250; 42 U.S.C. § 16913. The indictment alleged that the defendant's culpable failure to register began in March 2007 and continued through April 4, 2007 (a period that followed his interstate travel in February of 2007).

The defendant moved to dismiss the indictment, arguing that SORNA did not apply to him and that, in all events, the law's registration requirements were invalid. The government opposed the motion. The district court, in a thoughtful rescript, rejected the defendant's challenge. United States v. DiTomasso, 552 F.Supp.2d 233, 248 (D.R.I.2008). The court ruled that SORNA applied to the defendant from and after its effective date because the law imposed a “general obligation on sex offenders to register.” Id. at 241. The court simultaneously rebuffed the defendant's other challenges. Id. at 247-48.

The defendant elected to enter a conditional guilty plea, Fed.R.Crim.P. 11(a)(2), preserving his right to appeal the denial of his motion to dismiss. The district court sentenced him to serve thirty months in prison. This timely appeal ensued.

II. ANALYSIS

We first consider the defendant's principal argument that SORNA did not apply to him when he committed the alleged offense. We then address his other constitutional claims.

A. Applicability of the Registration Requirements.

The defendant pleaded guilty to violating 18 U.S.C. § 2250(a). Among other things, this section imposes criminal penalties when a person required to register as a sex offender under SORNA knowingly fails to register after traveling in interstate commerce. For SORNA purposes, a “sex offender” is “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1). The defendant concedes that he falls within this taxonomy. To understand his argument that SORNA's registration requirements, 42 U.S.C. § 16913(a), (c), nonetheless do not apply to him, we must understand the architecture of the statutory scheme.

The registration requirements are laid out in section 16913, which provides:

(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) 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)
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter 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).

42 U.S.C. § 16913. 2

SORNA became law on July 27, 2006. On February 28, 2007, the Attorney General, acting pursuant to the authority explicitly granted to him in section 16913(d), promulgated an interim rule “to eliminate any possible uncertainty about the applicability of [SORNA's] requirements ... to sex offenders whose predicate convictions predate the enactment of SORNA.” Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894, 8896 (Feb. 28, 2007). This rule declares that SORNA's requirements “apply 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.

The courts of appeals have disagreed about the meaning and effect of this statutory/regulatory mosaic. See Carr v. United States, --- U.S. ----, 130 S.Ct. 2229, 2234 n. 2, 176 L.Ed.2d 1152 (2010) (noting circuit split). The disagreement centers on subsection (d), which contains two pertinent clauses. The question boils down to whether the first clause, stating that [t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction,” gave the Attorney General authority to determine the applicability of SORNA to all persons who stood convicted of sex offenses on SORNA's effective date or, alternatively, as indicated in the following clause of subsection (d) (“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)), to determine its applicability only as to specific subsets of those offenders.

Some courts have determined, often over emphatic dissents, that the statute unambiguously gave the Attorney General the authority to determine SORNA's applicability to all persons previously convicted of sex offenses. See, e.g., United States v. Cain, 583 F.3d 408, 414-15 (6th Cir.2009); United States v. Hatcher, 560 F.3d 222, 228 (4th Cir.2009); United States v. Madera, 528 F.3d 852, 858 (11th Cir.2008) (per curiam). If this view is correct, SORNA did not apply to previously convicted sex offenders until the Attorney General promulgated the interim rule. See Hatcher, 560 F.3d at 229.

Other courts, deeming the statute ambiguous, have construed it to signify that the Attorney General only had authority to determine SORNA's applicability to previously convicted sex offenders who were unable initially to register under SORNA. 3 See, e.g., United States v. Hinckley, 550 F.3d 926, 930, 932-33, 935 (10th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 2383, 173 L.Ed.2d 1301 (2009); United States v. May, 535 F.3d 912, 918-19 (8th Cir.2008), cert. denied, --- U.S. ----, 129 S.Ct. 2431, 174 L.Ed.2d 229 (2009); see also Cain, 583 F.3d at 424 (Griffin, J., dissenting); Hatcher, 560 F.3d at 229 (Shedd, J., dissenting). Under this view, registered sex offenders who had a state-law duty to keep their registrations current on SORNA's effective date became subject to a new obligation to register for federal purposes when, thereafter, they moved to a different state. See May, 535 F.3d at 919. If this view is correct, SORNA applied to previously convicted sex offenders as of the date of its enactment.

The defendant urges us to follow the Fourth, Sixth, and Eleventh Circuits and hold that SORNA's registration requirements did not apply to him when he traveled interstate. In his view,...

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