CAAF will hear oral argument in the Army case of United States v. Newton, No. 14-0415/AR (CAAFlog case page) on Wednesday, November 19, 2014. The case presents CAAF with a rather complex interpretative issue:
Whether the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250 (a) (2006), applied to Appellant as a result of either the Attorney General’s 2007 interim rule or his 2008 guidelines. See, e.g., United States v. Lott, 750 F.3d 214 (2d Cir. 2014), 2014 WL 1522796; United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013.)
Appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of rape of a child, indecent acts, wrongfully sending an indecent picture of himself to his minor daughter, and knowingly failing to register as required by the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2052(a), in violation of Articles 120 and 134. He was sentenced to confinement for 30 years, total forfeitures, and a dishonorable discharge. The convening authority reduced the term of confinement by one year.
Appellant joined the Army in 1998. But in 1995 Appellant was convicted of rape of a child. App. Br. at 6. That conviction is unrelated to his court-martial convictions, except that his conviction for failure to register as required by SORNA is based on his 1995 conviction. Appellant “did not register as a sex offender in Texas between October 1, 2009 and July 29, 2010.” App. Br. at 6. The issue before CAAF questions whether SORNA actually applied to Appellant at that time.
SORNA was enacted in 2006, but the statute did not automatically apply to sex offenders convicted prior to its enactment. Rather, Congress explicitly gave the Attorney General (AG) the authority to determine the applicability of sex offender registration to offenders convicted prior to enactment of the registration requirement. See 42 u.s.c. § 16913(d). A series of actions by the AG followed:
- In 2007 the AG issued an interim rule stating that SORNA applied to persons convicted of offenses prior to enactment of the federal statute. However, that rule was effective immediately rather than after a public comment period (as is normally required by the Administrative Procedures Act).
- In 2008 the AG issued Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) guidelines. These guidelines were issued after a public comment period.
- In late 2010 the AG published a final rule. “Without conceding that the Interim Rule or the SMART Guidelines were invalid, the attorney general asserted that his “aim” for issuing the Final Rule was “to eliminate any possible uncertainty or dispute, concerning the scope of SORNA’s application by finalizing the interim rule.” Gov’t Br. at 7. This rule took effect after the end of Appellant’s period of non-registration.
Appellant’s brief explains that a number of federal circuits concluded that the AG did not have good cause to waive the requirements of the Administrative Procedures Act in the 2007 rulemaking. However, the courts have been more accepting of the 2008 SMART guidelines and that is where the Government begins its brief:
The SMART Guidelines implemented SORNA’s retroactive provisions. Although appellant argues that the SMART Guidelines are “merely interpretive,” each circuit that has considered the issue has ruled that the SMART Guidelines are substantive and have the force of law. Not one circuit has ruled otherwise.
Gov’t Br. at 10. The Government cites to decisions from the 1st, 2nd, 6th, and 9th Circuits to support its argument that the SMART Guidelines were validly issued and apply SORNA to persons – like Appellant – who were convicted of a sex offense prior to enactment of the statute. Gov’t Br. at 10-11 n.40.
But Appellant pushes back, asserting that:
The 2008 SMART guidelines are just that; guidelines. They were put forth by the Attorney General to clarify the already existing 2007 Interim Rule or “Act”, to quote the term used in the guidelines, which he presumed was valid at the time. In fact, the guidelines themselves state, “[t]hese final guidelines provide guidance and assistance to the states and other jurisdictions in incorporating the SORNA requirements into their sex offender registration and notification programs.” Further the guidelines state, •The adoption of these Guidelines carries out a statutory directive to the Attorney General, appearing in SORNA § 112(b), to issue guidelines to interpret and implement SORNA.” From that description, it is clear that the guidelines were not intended to be substantive and create new law. The guidelines themselves declare their purpose to be interpretive. If the guidelines were intended to be substantive, the Attorney General would have seen no need for publishing the Final Order in 2011.
App. Br. at 18-19.
The Government is fighting from a position of strength on this issue, and its brief notes that:
Earlier this year, the Second Circuit upheld the retroactivity of SORNA in United States v. Lott. Like appellant, Lott was convicted of failing to register for a pre-Act crime during the period between the promulgation of the Interim Rule and the Final Rule. Also like appellant, Lott argued that the SMART Guidelines were interpretive rather than substantive.
In affirming Lott’s conviction, the Second Circuit held that the SMART Guidelines were substantive and that they properly implemented SORNA’s retroactive provisions. . .
The SMART Guidelines were an act of substantive rulemaking. The notice proposing the guidelines specifically stated: ‘These proposed guidelines carry out a statutory directive to the Attorney General in section 112(b) of SORNA (42 U.S.C. § 16912(b)) to issue guidelines to interpret and implement SORNA.
Gov’t Br. at 13-14 (quoting United States v. Lott, 750 F.3d 214, 217 (2nd Cir. 2014)). But the Government also asserts that the 2007 rulemaking was valid. Acknowledging a split in the circuits that have considered this issue, the Government’s position is that the AG had good cause to suspend the notice and comment provisions of the Administrative Procedures Act. Gov’t Br. at 26-27. The Government also asserts that even if the AG promulgated the 2007 Interim Rule improperly, Appellant suffered no prejudice because he cannot show that the AG’s rulemaking process would have produced a different result had the requirements of the Administrative Procedures Act been followed.
Appellant did not file a reply brief, so we’ll have to wait for the oral argument to see how he replies to the Government’s assertion that the 2007 Interim Rule was valid. However, it may not matter, since if CAAF finds that the 2008 SMART Guidelines made the registration requirement retroactive, then Appellant’s conviction may be affirmed without consideration of the 2007 Interim Rule.
Of note, Senior Judge Cox will participate in CAAF’s consideration of this case, as Judge Ohlson recused himself (presumably based on his prior service with the Department of Justice).