Wlllman v. Attorney Gen. of U.S., No. 19-2405

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtGRIFFIN, Circuit Judge.
PartiesM.S. WLLLMAN, Plaintiff-Appellant, v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Defendant-Appellee.
Docket NumberNo. 19-2405
Decision Date26 August 2020

M.S. WLLLMAN, Plaintiff-Appellant,

No. 19-2405


Argued: August 3, 2020
August 26, 2020

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 20a0281p.06

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:19-cv-10360—Gershwin A. Drain, District Judge.

Before: GRIFFIN, KETHLEDGE, and THAPAR, Circuit Judges.


ARGUED: Daniel C. Willman, Pinckney, Michigan, for Appellant. Ashley A. Cheung, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Daniel C. Willman, Pinckney, Michigan, for Appellant. Ashley A. Cheung, Mark B. Stern, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Adele D. Nicholas, Chicago, Illinois, Richard Gladden, LAW OFFICE OF RICHARD GLADDEN, Denton, Texas, Miriam J. Aukerman, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Grand Rapids, Michigan, Daniel S. Korobkin, AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Detroit, Michigan, Paul D. Reingold, UNIVERSITY OF MICHIGAN, Ann Arbor, Michigan, for Amici Curiae.

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GRIFFIN, Circuit Judge.

The principal issue in this appeal is whether the registration and notification obligations set forth in the federal Sex Offender Registration and Notification Act (SORNA) apply to sex offenders who are convicted under state law but are not subject to that state's sex offender registration and notification requirements. Our sister circuits have answered the question in the affirmative and so have we in an unpublished opinion, United States v. Paul, 718 F. App'x 360, 363-64 (6th Cir. 2017). Today, based upon the text of the statute, we follow those decisions and hold that a sex offender's obligations under SORNA are independent of any duties under state law.

Plaintiff M.S. Willman also argues that SORNA is unconstitutional for several reasons. We conclude that none of these arguments have merit and therefore affirm the judgment of the district court dismissing plaintiff's complaint.


In 1993, plaintiff M.S. Willman was convicted for violating a Michigan law that prohibits "[a]ssault with intent to commit criminal sexual conduct involving sexual penetration." Mich. Comp. Laws § 750.520g(1). He served ten years in prison and completed parole. Additionally, Willman registered on Michigan's sex offender registry.

Congress, in 2006, passed the Sex Offender Registration and Notification Act (SORNA), Pub. L. No. 109-248, 120 Stat. 590, 34 U.S.C. § 20901 et seq. The statute aimed to "make more uniform what had remained 'a patchwork of federal and 50 individual state registration systems,' with 'loopholes and deficiencies' that had resulted in an estimated 100,000 sex offenders becoming 'missing' or 'lost.'" Nichols v. United States, 136 S. Ct. 1113, 1119 (2016) (citation omitted). As a part of that effort, SORNA "made it a federal crime for a sex offender who meets

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certain requirements to 'knowingly fai[l] to register or update a registration as required by [SORNA].'" Id. at 1116 (citation omitted and alterations in original).

Willman filed his complaint in February 2019, challenging his registration and notification duties under Michigan state law and federal law. Among other things, Willman sought a declaration that SORNA was unconstitutional, and therefore he was not required to comply with it.

In April 2019, the district court entered a stipulated order regarding plaintiff and the state defendants. The order dismissed the Michigan defendants from the case with prejudice and directed them to "not enforce the 2006 and 2011 . . . amendments [to Michigan's Sex Offender Registration Act (SORA)] against [p]laintiff." Additionally, it declared that (1) "the duration of [plaintiff's] registration [under SORA] has ended"; (2) "[p]laintiff shall no longer be subject to any registration or verification requirements of SORA"; and (3) "[p]laintiff shall be removed from the SORA registry within 3 business days from the date of entry of this order."1 Notably, the order did not mention the federal sex offender law (SORNA) or the federal defendant, the Office of the U.S. Attorney General.

Subsequently, the remaining defendant—the U.S. Attorney General—filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). He argued that all of plaintiff's constitutional claims were facially implausible. Defendant also contended that the stipulated order had "no bearing on Willman's obligations under federal law (i.e., SORNA)." The district court granted the motion to dismiss and entered judgment in favor of defendant. Plaintiff timely appealed.

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"We review de novo a district court's decision to dismiss a complaint under Rule 12(b)(6)." Swanigan v. FCA US LLC, 938 F.3d 779, 783 (6th Cir. 2019). A Rule 12(b)(6) movant "has the burden to show that the plaintiff failed to state a claim for relief." Coley v. Lucas Cty., 799 F.3d 530, 537 (6th Cir. 2015). "To survive a motion to dismiss, a complaint must present facts that, if accepted as true, sufficiently 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim is facially plausible when a plaintiff 'pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "We construe [plaintiff's] complaint in the light most favorable to [him], and accept the complaint's allegations as true, drawing all reasonable inferences in favor of [plaintiff]." Id. But "[w]e need not accept as true legal conclusions or unwarranted factual inferences, and conclusory allegations or legal conclusions masquerading as factual allegations will not suffice." Terry v. Tyson Farms, Inc., 604 F.3d 272, 276 (6th Cir. 2010) (citation omitted).


The main issue in this appeal is whether SORNA applies to plaintiff, even though he lacks state-law sex offender registration and notification obligations. We hold that it does.

SORNA states that "[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." 34 U.S.C. § 20913(a). The statute defines "sex offender" as "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). The term "jurisdiction" includes states of the United States, such as Michigan (which is where plaintiff resides). 34 U.S.C. § 20911(10)(A). For the purposes of SORNA, "sex offense" means, among other things, "a criminal offense that has an element involving a sexual act or sexual contact with another." 34 U.S.C. § 20911(5)(A)(i). Moreover, SORNA makes it a crime for "[w]hoever . . . is required to register under" the statute to "travel[ ] in interstate . . . commerce" and "knowingly fail[ ] to register or update a registration as required by" the statute. 18 U.S.C.

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§ 2250(a). But in a SORNA prosecution for failure to register, an individual has an affirmative defense if "(1) uncontrollable circumstances prevented the individual from complying; (2) the individual did not contribute to the creation of such circumstances in reckless disregard of the requirement to comply; and (3) the individual complied as soon as such circumstances ceased to exist." 18 U.S.C. § 2250(c).

Willman's crime of conviction constitutes a sex offense under SORNA, and he does not argue otherwise. See Mich. Comp. Laws § 750.520g(1); 34 U.S.C. § 20911(5)(A)(i). Because he "was convicted of a sex offense," he is a sex offender under the statute. 34 U.S.C. § 20911(1). And because all "sex offender[s]" are subject to SORNA's obligations, Willman is too.

Plaintiff's arguments to the contrary are without merit. First, Willman contends that SORNA applies to him only if an applicable jurisdiction's state law requires him to be on its sex offender registry. The applicable jurisdiction here—Michigan—no longer requires Willman to be on its sex offender registry. Therefore, according to Willman, SORNA's obligations do not apply to him. The statute's text, however, does not support Willman's argument. As we explained above, SORNA's applicability to plaintiff turns on whether he is a "sex offender." 34 U.S.C. § 20913(a) ("A sex offender shall register, and keep the registration current . . . ." (emphasis added)). When Michigan removed Willman from its sex offender registry for the purposes of state law, he continued to be "an individual who was convicted of a sex offense." 34 U.S.C. § 20911(1). Accordingly, his argument fails.

Second, plaintiff suggests our interpretation of the statute would lead to the absurd result of him having an affirmative defense to a prosecution predicated on failure to register if he offered to register in Michigan and the state declined his offer. That is speculation and would not be an absurd result.

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"The obligation SORNA . . . impose[s]—the obligation to register—is imposed on sex offenders, not states."2 Stock, 685 F.3d at 626 (emphasis added). "That obligation exists [for sex offenders] whether or not a state chooses to implement SORNA's requirements and whether or not a state chooses to register sex offenders at all." Id. "Because states can choose not to accept sex-offender registrations," id., it is sensical (not absurd) that SORNA accounts for that by providing an affirmative defense when certain criteria are met, including when "uncontrollable circumstances prevented the individual from complying," 18 U.S.C. § 2250(c). Further, we agree with the federal government that the affirmative defense is available to Willman if Michigan does not permit him to register. After that, there is nothing else for plaintiff to do (from the perspective of SORNA) unless at least one relevant circumstance changes. Therefore, Willman's...

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