United States v. Cain
583 F.3d 408 (2009)
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Rule of Law:
The Sex Offender Registration and Notification Act (SORNA) does not impose its registration requirements on offenders convicted before its enactment until the Attorney General specifies its applicability through a regulation validly promulgated under the Administrative Procedure Act (APA). An agency fails to establish the APA's 'good cause' exception to notice-and-comment requirements by citing a general need to eliminate uncertainty or prevent delay, especially when the agency itself delayed in rulemaking.
Facts:
- In October 1998, Marcus Cain was convicted of attempted rape in Ohio.
- As a result of his conviction, Cain was classified as a Sexually Oriented Offender under Ohio law, which required him to register with the state and verify his address annually.
- On July 27, 2006, the federal Sex Offenders Registration and Notification Act (SORNA) was signed into law.
- During the summer of 2006, Cain informed his parole officer of his intention to move to Georgia.
- Sometime after his last meeting with his parole officer on September 18, 2006, Cain traveled from Ohio to Georgia.
- Cain failed to update his sex offender registration in either Ohio or Georgia after he moved.
- On October 16, 2006, Cain failed to appear for his required annual registration in Ohio.
- On February 28, 2007, the U.S. Attorney General issued a regulation, purporting to take immediate effect, specifying that SORNA's requirements applied to persons convicted of sex offenses prior to the law's enactment.
Procedural Posture:
- A federal grand jury indicted Cain in the U.S. District Court (trial court) for violating 18 U.S.C. § 2250, the criminal enforcement provision of SORNA.
- Cain filed a motion to dismiss the indictment on several grounds.
- Prior to a ruling on the motion, Cain entered into a conditional plea agreement, pleading guilty but reserving the right to appeal the court's eventual denial of his motion to dismiss.
- At the sentencing hearing, the district court orally denied Cain's motion to dismiss, adopting the reasoning in the Government's response brief.
- The district court sentenced Cain to five months of imprisonment and five years of supervised release.
- Cain (appellant) appealed the denial of his motion to dismiss to the U.S. Court of Appeals for the Sixth Circuit.
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Issue:
Does the Sex Offender Registration and Notification Act (SORNA) impose a registration requirement on sex offenders convicted before its enactment, prior to the Attorney General validly promulgating a rule specifying its applicability?
Opinions:
Majority - Rogers, J.
No. SORNA does not apply to offenders with pre-enactment convictions until the Attorney General issues a valid regulation specifying its applicability. The text of 42 U.S.C. § 16913(d) grants the Attorney General the 'authority to specify the applicability' of SORNA to pre-enactment offenders, indicating that the statute is not self-executing for this group. This language does not create a default where the statute applies unless waived; rather, it requires an affirmative act of specification by the Attorney General. Even if the statute were ambiguous, the rule of lenity requires construing a criminal statute in favor of the defendant. Furthermore, the regulation issued by the Attorney General on February 28, 2007, was not validly promulgated because the Attorney General failed to demonstrate 'good cause' under the Administrative Procedure Act (APA) to bypass the required notice-and-comment and 30-day advance publication periods. The stated reasons—eliminating uncertainty and preventing delay—are insufficient to meet the APA's high standard for the good cause exception, especially given the Attorney General's own seven-month delay in issuing the rule and the fact that new criminal liability was being imposed.
Dissenting - Griffin, J.
Yes. SORNA's requirements were immediately effective for all sex offenders, including those with pre-enactment convictions, upon the statute's effective date of July 27, 2006. The statutory language in § 16913(a), stating that 'A sex offender shall register,' is a clear and mandatory command without exception for past offenders. The language in § 16913(d) giving the Attorney General the 'authority to specify' should be read as a permissive grant of power to create exceptions or rules for those unable to comply, not as a condition precedent to the statute's effectiveness. Reading the statute holistically, Congress's intent to create a 'comprehensive national system' supports immediate application to all offenders. Even if a regulation were required, the Attorney General had 'good cause' to bypass APA procedures due to the compelling public safety interest in ensuring all sex offenders are registered without delay, which outweighs the need for a notice and comment period.
Analysis:
This decision created a circuit split regarding when SORNA's registration requirements attached to individuals with pre-enactment convictions. It establishes for this circuit that a statute delegating authority to an agency to 'specify the applicability' to a certain group is not self-executing for that group. The ruling also significantly reinforces the procedural protections of the Administrative Procedure Act, setting a high bar for an agency to invoke the 'good cause' exception. It clarifies that general public safety concerns or an agency's desire to provide guidance quickly are not, by themselves, sufficient to bypass notice-and-comment and advance publication requirements, especially when a rule creates new criminal liability.
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