U.S. v. Johnson

632 F.3d 912

UNITED STATES of America, Plaintiff–Appellee,

v.Undra Demetrius JOHNSON, Defendant–Appellant.

No. 09–60823.

United States Court of Appeals, Fifth Circuit.

Feb. 4, 2011.

Patrick A. Lemon, Jackson, MS, for U.S.Abby Webber Brumley, Asst. Fed. Pub. Def., Jackson, MS, for Johnson.Appeal from the United States District Court for the Southern District of Mississippi.Before HIGGINBOTHAM, CLEMENT and OWEN, Circuit Judges.PATRICK E. HIGGINBOTHAM, Circuit Judge:

Defendant–Appellant Undra Demetrius Johnson appeals his conviction under 18 U.S.C. § 2250(a) for failure to register as a sex offender under the Sex Offender Registration and Notification Act (“SORNA”). He challenges the validity of the Act and the decision of the Attorney General to apply it to persons whose convictions for sex crimes predate its enactment.

I.

As part of a plea agreement, Johnson stipulated to the relevant facts. In 1995, Johnson was convicted in a Mississippi court for gratification of lust, a sex offense. Johnson was sentenced to eight years in prison, four years suspended. Prior to his release in May 1999, Johnson signed an Acknowledgment of Convicted Sex Offender's Duty to Register under Mississippi law. In 2002 and 2004, Johnson signed two additional Mississippi state forms acknowledging his duty to register. In 2005, Johnson moved from Mississippi to Iowa and signed Iowa's Sex Offender Registry Notification of Registration Requirement form.¹ In January 2008, Johnson returned to Mississippi and failed to register as a sex offender with the State of Mississippi.

On January 22, 2009, Johnson was indicted on one count of violating 18 U.S.C. § 2250(a) by traveling in interstate commerce and knowingly failing to register and update a registration in accordance with SORNA. Johnson moved to dismiss the indictment on various constitutional grounds, and the district court denied the motion. Johnson then entered a guilty plea pursuant to a plea agreement, reserving the right to raise his constitutional challenges on appeal. Johnson was sentenced to thirty-seven months in prison to be followed by a life term of supervised release. He filed a timely notice of appeal.

II.

On July 27, 2006, President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act of 2006.² Title I of the Act includes SORNA, which “establishes a comprehensive national system for the registration of [sex] offenders,”³ requiring all sex offenders to register their residence and place of employment using state-based registries. Specifically, the registration provisions read as follows:

(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) of this section 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) of this section

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) of this section.⁴

A separate provision of SORNA created a federal criminal offense for traveling interstate and failing to register as a sex offender.

(a) In general.—Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act; ...

(2)(B) travels in interstate or foreign commerce ...; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act; shall be fined under this title or imprisoned not more than 10 years, or both.⁵

SORNA further directs each state to substantially implement its requirements or lose ten percent of the state's funding under the Omnibus Crime Control and Safe Streets Act.⁶ SORNA gave local jurisdictions three years to comply and authorized the Attorney General to grant up to two one-year extensions.⁷ As a result, most states will not be in compliance until July 2011.

In contrast to the grace period offered to states, the Attorney General began enforcing SORNA as though it provided immediate penalties for sex offenders who failed to register. Many defendants challenged SORNA's application to pre-enactment offenders.⁸ In response, on February 28, 2007, seven months after SORNA's enactment, the Attorney General issued an interim regulation stating 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 that Act.”⁹ The Attorney General noted that he was issuing the rule to foreclose the argument that SORNA did not apply to defendants with convictions before the Act's enactment, regardless of whether the statute on its face included them or not. The regulation was issued without a notice-and-comment period and without a thirty-day waiting period, both of which are mandated by the Administrative Procedure Act (“APA”). ¹⁰ The Attorney General relied upon the good cause exception in the APA to excuse the lack of notice-and-comment and waiting period.¹¹ He published a justification for good cause at the time the rule was issued:

The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act's requirements—and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required—to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA. This would thwart the legislative objective of “protect[ing] the public from sex offenders and offenders against children” by establishing “a comprehensive national system for the registration of those offenders,” SORNA § 102, because a substantial class of sex offenders could evade the Act's registration requirements and enforcement mechanisms during the pendency of a proposed rule and delay in the effectiveness of a final rule.

It would accordingly be contrary to the public interest to adopt this rule with the prior notice and comment period normally required under 5 U.S.C. 553(b) or with the delayed effective date normally required under 5 U.S.C. 553(d).¹²

The rule took immediate effect. The Attorney General accepted post-promulgation comments through April 30, 2007, but did not respond to comments in the Federal Register.¹³ The regulation published in the Code of Federal Regulations was identical to the interim rule.¹⁴ On May 30, 2007, the Attorney General issued a notice of rulemaking for the full regulatory implementation of SORNA.¹⁵ This proposal included a subsection on the applicability of SORNA to pre-enactment offenders, noting that the Attorney General had addressed this issue in its earlier rulemaking. Nevertheless, the Attorney General received public comments on SORNA's retroactivity and responded to those comments in the publication of the final SORNA regulations, which were issued and made effective on July 2, 2008. ¹⁶

III.

Johnson puts forth seven challenges to his conviction under SORNA. We review these challenges de novo,¹⁷ but our case law forecloses five of these claims. First, Johnson asserts he never received notice that he was required to register under SORNA, a denial of due process under the Fifth Amendment. Johnson knew of his obligation to register as a sex offender in Mississippi but was not directly notified of the SORNA requirements or increased federal penalties. Johnson further argues both that SORNA exceeds Congress's authority under the Commerce Clause and that by directing the Attorney General to decide if SORNA applies retroactively, SORNA violates the non-delegation doctrine. In United States v. Whaley, we rejected nearly identical claims.¹⁸ We conclude that Johnson's prosecution did not violate due process; further, SORNA is valid under both the Commerce Clause and the principles of non-delegation.

Next, Johnson claims that the retroactive application of SORNA violates the Ex Post Facto Clause because it is punitive, non-civil, and exposes him to criminal prosecution for non-compliance. We previously...