Virginia Lawyers Weekly

Although Maryland had not yet implemented enhanced registration requirements for sex offenders when defendant moved to Maryland, he nevertheless could be convicted under the Sex Offender Registration & Notification Act for his failure to register when he moved to Maryland in 2006, the 4th Circuit says.

Defendant was convicted of a sex offense in the District of Columbia in 1985, and upon his release in 2002, was required to register, by pre-SORNA federal and state law, as a sex offender in the state in which he resided, worked or was a student. In early 2004, defendant moved to West Virginia; in later 2004 to Pennsylvania; and in 2006 to Maryland. Defendant was convicted in West Virginia for failing to update his registration and was charged in Pennsylvania with failing to update his registration. He never registered in Maryland.

On July 27, 2006, before defendant moved to Maryland, Congress enacted SORNA, which expanded the information required to be provided on registration and created a federal requirement that sex offenders 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. SORNA also criminalized the failure to register.

About one year after SORNA was enacted, defendant was arrested in Maryland and charged with violating SORNA for failing to register in Maryland. Defendant pleaded guilty but reserved for appeal his statutory and constitutional challenges.

Defendant contends his indictment should have been dismissed because 1) he could not have been prosecuted for failure to register under SORNA because Maryland had not yet implemented SORNA; 2) he was “unable” to “initially register” under SORNA because he was released from prison on his underlying sex offense long before SORNA was enacted; 3) he could not have “knowingly” failed to register in accordance with SORNA because he was not specifically instructed of SORNA’s requirements, as required by 42 U.S.C. § 16917 and the regulations promulgated by the Attorney General; 4) prosecution without notification of his duty to register violated his rights under the Due Process Clause; 5) the Attorney General violated the Administrative Procedure Act in promulgating the interim regulations at 28 C.F.R. § 72 without notice and comment; and 6) SORNA violates the Commerce Clause by regulating purely local intrastate activity that has nothing to do with commerce or any type of economic enterprise.

We reject each of defendant’s arguments and affirm the judgment of conviction on defendant’s guilty plea.

Dissent

Michael, J.: Because the Attorney General’s justification for non-compliance with the Administrative Procedure Act was inadequate, the rule promulgated under Section 113(d), codified at 28 C.F.R. § 72.3, is invalid. And because defendant’s prosecution under SORNA depends on this invalid rule, I respectfully dissent from the majority’s decision to affirm defendant’s convictions under the Act.

U.S. v. Gould (Niemeyer, J.) No. 08-4302, June 18, 2009; USDC at Baltimore, Md. (Quarles) Paresh S. Patel, FPD, for appellant; Rod J. Rosenstein, U.S Att’y, for appellee. VLW 009-2-111, 42 pp.

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