UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

UNITED STAT ES O F AMERICA

v. Crim inal Action No. 10-126 (JDB)

LARRY DONN ELL COTTON

Defendan t.

MEMORAN DUM OP INION On Novembe r 6, 1997, De fenda nt L arr y Donnell Cotton was convicted of one count of indece nt liberties with a minor in violation of N.C. Gen. Stat. § 14-202.1 (1995). A t the time of Cotton's conviction, Nor

th Carolina law r equire d Cotton t o reg ister as a sex offender

for a period of ten y ear s following his re lease from prison. N.C. Ge n. Stat. § 14-208.7 (1995). When Cotton

was re lease d from jail in October 1998, he sig ned a notice that explained: "I f a pe rson re quired to reg ister cha

ng es addr ess, the per son shall provide written notice of the ne w addr ess not later tha n the tenth day

afte r the c hang e to the sher iff of the county with whom the person ha d last reg istered." Gov’t’s Opp. to De f.’s Mot. to Dismiss I ndictment (“G ov’t’s Opp.” ) [Docket Entry 12] at 1-2. On J une 8, 2010, a g rand jury in this Dist rict re turned a one count supe rsedingindictment ag ainst Cotton, charg ing him with fa ilure to reg ister as re quired by the Sex Offender

Reg istrationand Notification Act (" SORNA" or "the Act" ), 42 U.S.C. § 16901 et seq. , "in the D istrict of Columbi a and e lsewher e." SupersedingI ndictment 1[Docket Entry 5]. C otton's indictment char g es ac tivity

in violation of SORNA "betwe en on or a bout May 2007 and on or a

bout October 2008." I d. Cotton m oves to dismiss t he indictment, asser ting e ight se parate g rounds for dismiss al. Fir st, Cott on asser ts that he was " unable" to reg ister under exis ting District of Columbi a law. Sec ond, Cotton contends that SORNA is not applicable to him because the District of Columbia has y et to implement SORNA. Third, he cla ims that S ORNA is not applicable to him because he wa s "una ble" to "initially

reg ister" under Sec tion 16913(b) of the Act. F ourth, Cotton maintains t hat Cong ress improper ly deleg ated the le g islative function of deter mining the a

pplicability

of SORNA to sex offender s with pre-SORNA c onvictions. Fifth, he asse rts that the Attorney Gene ral’s inter im regulation, 28 C.F.R. § 72.3, which applies SORNA retroa ctively , was issued in violation of the Administrative Proce dure A ct. Six th, Cotton asserts that the retr oactive a pplication of SORNA violates the Ex Pos t Fac to Clause of the Constit ution. Seventh, he ar g ues that application of SORNA to him vi olates the Due Process Clause. And eig hth, he maintains that SORNA is an unlawful e x erc ise of fe dera l power unde r the Commerce Clause

. LEGAL BACK GR OUND Congr ess ena cted SORNA on July 27, 2006 as par

t of the Adam Walsh C hild Protection and Safe ty

Act. Pub. L . 109-248, Tit. I , 120 Stat. 590. SOR NA' s stated purpose is to " establish[] a compr ehensive national sy stem for the r eg istration of sex offender s." 42 U .S.C. § 16901. "Since 1994, fede ral lawhas re quired states, a s a condition for the rec eipt of ce rtain law enfor ceme nt funds, to maintain fede rally compliant sy stems for sex-offe nder r eg istration and 2community notification." Carr v. U nited States , 130 S. Ct . 2229, 2235 (2010). In an ef fort to make these state sche mes more e ffe ctive, SORNA expanded the infor mation that states must collect a nd maintain in their sex offender reg istries, cre ated a

fede ral re g istration require ment, and cr iminaliz ed the f

ailure to re g ister. See 42 U.S.C. §§ 16901, 16913, 16914. Among its provisions, SORNA established a fe dera l criminal offe nse, 18 U.S.C. § 2250(a), c overingany person who ( 1) " is require d to reg ister under [S ORNA]"; (2) " trave ls in int erstate or for eig n

commerc e" ; and (3) " knowing ly fails to reg ister or update a r eg istration." See Carr , 130 S. Ct . at 2235. I n Carr , the Court deter mined that these e lements are to "be rea d sequentially ," me aning that "a person [who] becomes subject to SORNA' s reg istration require ments . . . must then travel in interstate commer ce a

nd there afte r fa il to reg ister." I d. at 2235-36. In other wor ds, Carr clar ified that " [o] nce a

person be comes subjec t to SOR NA' s reg istration require ments, which ca n

occur only afte r the statute' s eff

ective da te, that per son can be convicted unde r § 2250 if he there afte r trave ls and then fa ils to reg ister." I d. at 2236. Prec isely when a sex offender , like Cotton, wit h a pre -SORNA conviction " become s subject to SORNA’s reg istration require ments," howeve r, is in dispute. See id. at 2234 n.2. SORNA' s reg istration require ments are laid out in 42 U.S.C. § 16913: (a) I n g ener al. A sex offende r shall re g ister, and ke ep the r eg istration curre nt, in eac h jurisdiction where the offe nder r esides, whe re the offe nder is an e mploy ee, and whe re the offe nder is a stude nt. For initial reg istration purposes only , a sex offe nder sha ll also reg ister in the jurisdiction in which convicted if such jurisdiction is di ffe rent fr om the jurisdiction of residenc e.

3(b) Initial reg istration. The sex offende r shall initially reg ister- (1) be fore completing a sente nce of imprisonment with respect to the offe nse g iving r ise to the reg istration require ment; or (2) not later

than 3 business day s after beingsentenc ed for

that offe nse, if the sex offende r is not sentence d to a term of imprisonment. (c) Kee ping the reg istration curre nt. A sex offender shall, not later than 3 business day s after

eac h chang e of na

me, re sidence , employ

ment, or student status, appea

r in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of a ll chang es in the informa tion required f

or that offe nder in the se x offe nder r eg istry . That jurisdiction shall immediately provide that information to all other jurisdictions in which the off ender is require d to reg ister. (d) Initial reg istration of sex offender s unable to comply with subsection (b). The Attorney Gene ral shall have the authority to specify

the applica

bility of the require ments of this subchapter to sex offe nders c onvicted bef ore the enac tment of this chapter

or its implementation in a particular jurisdiction, and to prescr ibe rules for the re g istration of any

such sex offende rs and f

or other c ateg ories of se x offe nders who a

re una ble to comply

with subsection (b). The Ac t thus provides in subsection (d) that " [t ]he Attorney Gene ral shall have the authority to specify

the applica

bility of the re quirements of this subcha pter to sex offende rs convicted be fore J uly

27, 2006." 42 U .S.C. § 16913(d). Pursuant to this authority , on Fe bruar y 28, 2007, the Attorney

Gene ral issued a

n interim rule " to eliminate any possible uncer

tainty about the applica

bility of [SOR NA' s] requirements," 72 Fe d. Reg . 8894, 8896 (2007), a nd stated that SORNA' s require ments "a pply to all sex offe nders, includingsex offender s convicted of the offe nse for

which re g istration is required pr ior to the ena ctment of [SORNA] ." 28 C.F .R. § 72.3. When the Attorney

Gene ral promulg ated the inter im rule, he did not provide notice of propose d rulemaking , 5 U.S.C. § 553(b), or allow a 30-day period be fore the rule be came eff ective, 5 U.S.C. § 553(d), as re quired by the Administrative Proce dure A ct (“ APA”). Instead, he invoked

4the " g ood cause " e x ception of the APA for these require ments. See 5 U.S.C. §§ 553(b)(3)( B) &

(d)( 3); 72 Fe d. Reg . 8894, 8896-97 (2007)

. The Supreme Court in Carr did not resolve the " conflict among the Courts of Appea ls as to when SORNA' s reg istration require ments beca me applica

ble to persons c onvicted of se x offe nses prior to the statute' s enac tment" or "a s to whether § 72.3 w as prope rly promulg ated [under the APA]." Carr , 130 S. Ct . at 2234 n.2. The Court hig hlighted the conflicts in a f ootnote, explaining first that " [s] ever al Circuits . . . have ta ken the position that the Act did not apply to such sex offende rs until the Attorney Gene ral provide d for their inclusion by

issuing an inter im regulation, 28 C.F.R § 72.3, 72 Fed. Re g . 8897, on Fe bruar y 28, 2007." I d. ; see United States v. Valver de , 2010 WL 5263142, at *2 (9th Cir. 2010); United States v. Hatc her , 560 F.3d 222, 226- 29 (4th Cir. 2009); United States v. Cain , 583 F.3d 408, 414- 19 (6th Cir. 2009); United States v. Dix on , 551 F.3d 578, 582 ( 7th Cir. 2008); United States v. Mader a , 528 F.3d 852, 857- 59 (11th Cir. 2008) (per

curiam). The Court fur

ther obser ved that " [o] ther Circuits have held that per sons with pre-SORNA se x -off ense c onvictions became subject to the Ac t's r eg istration require ments upon the statute' s enac tment in J uly 2006." Carr , 130 S. Ct . at 2234 n.2; see United States v. DiTomasso , 621 F.3d 17, 23 ( 1st Cir. 2010); United States v. Hinckley , 550 F.3d 926, 929- 35 (10th Cir. 2008); United States v. May , 535 F.3d 912, 915- 19 (8th Cir. 2008); see a lso United States v. Shenandoah , 595 F.3d 151, 163 ( 3rd Cir. 2010) (r uling that it was " not rea ch[ing]" the defe ndant' s APA issue beca use def endant " was a lrea dy

a re g istered se x offe nder when SORNA

was e nacte d, [and] SORNA only require d him to keep his reg istration curre nt on and af ter July 27, 2006") ).

5The Supreme Court in Carr "similarly

express[ed] no view as to whe ther § 72.3 wa s proper ly promulg ated [under the A PA] -- a question that has also divided the Circuits." Carr , 130 S. Ct . at 2234 n.2; compar e Cain , 583 F.3d at 419-24 (holding that the Attorney Gene ral lac ked g ood cause for issuing the interim reg ulation without adheringto the APA’s notice- and-c omment and publication re quirements); Valver de , 2010 WL 5263142, at *6 (same ); with United States v. Dea n , 604 F.3d 1275 ( 11th Cir. 2010) (finding no APA violation); United States v. Gould , 568 F.3d 459, 469- 470 (4th Cir. 2009) (same ). Indeed, thr ee of the four Circ uit panels that have ruled on this iss ue we re inter

nally split reg ardingwhether

the Attorney

Gene ral’s e x planation constituted g ood cause under the APA. See Cain , 583 F.3d at 434-36 (Gr iffin, J ., dissenting) ; Dea n , 604 F.3d at 1282-90) (Wilson, J ., concur ring ) (f inding APA violation, but upholding conviction under

harmless e rror

analy sis); Gould , 568 F.3d a t 475-82 (Micha el, J ., dissenting)

. These two Circ uit spli ts deal with separ ate, but re lated, issues as to whe n "pe rsons with pre- SORNA sex-offense c onvictions beca me subject to the Ac t's r eg istration require ments." See Carr , 130 S. Ct . at 2234 n.2. For example, whether

the interim regulation was promulg ated

acc ording to the APA would not affe ct convictions in Circuits that have r uled that " persons with pre- SORNA sex-offense c onvictions beca me subject to the Ac t's r eg istration require ments upon the statute' s enac tment in J uly 2006." I d. ; see Cain , 583 F.3d at 433-34. Among the Circuits that have c oncluded that the A ct did not apply to this group until the Fe bruar y 28, 2007 interim regulation, the Six th and Ninth Circuits have rule d that the interim regulation was issued in violation of the notice a

nd comment and publication requireme nts of the APA. See Cain , 583 F.3d at 419-424; Valver de , 2010 WL5263142 at *6. Henc e, in these Circ uits, a person with a pre- SORNA sex-offense c onviction becomes subjec t to SOR NA' s reg istration require ments not
6on Fe bruar y 28, 2007, the date of

the issuance of the interim re g ulation (in violation of the APA under Cainand Valver de ), but instead on August 1, 2008, only afte r the issuanc e of SORNA' s final g uidelines, which we re pr omulgated in acc ordanc e with the APA. See United States v. Utesch , 596 F.3d 302, 311 ( 6th Cir. 2010) (" SORNA beca me ef fec tive ag ainst offe nders convicted be fore its enactment thirty day s after

the final SMART g uidelines wer e published: that is, on Aug ust 1, 2008."); Valver de , 2010 WL 5263142 at *1 (same ). There fore , three potential "e ffe ctive date s" e x ist for persons with pre -SORNA sex-offense convictions: SORNA’s date of enac tment (J uly

27, 2006); the date the Attorney Gene ral issued the interim rule ( Fe bruar

y 28, 2007); or thirty

day s after

final guidelines wer e published (August 1, 2008). F or the re asons desc ribed be low, this Court rules that SORNA’s effe ctive date for persons with pre -SORNA sex-offense convictions, like Cotton, is Aug ust 1, 2008. Here , Cotton's indictment char g es ac tivity in violation of SORNA "betwe en on or a bout May 2007 and on or about Oc tober 2008." SupersedingI ndictment at 1. B eca use Cotton's indictment cove rs activity three months bey ond SORNA’s eff ective date, and it may

be that Cotton traveled a nd failed to re g ister af

ter August 1, 2008 (but before October 30, 2008), the Court will not dismi ss Cotton’s indi ctment at this time for the Attorne y Gene ral’s f

ailure to c omply

with the APA. Cotton’s other arguments are without merit.

ANALYSIS Cotton asserts eig ht separa te g rounds for the dismiss al of his indictment. His claims either c ontest SORNA’a a pplicability

to him under the statutory and administrative f

rame work of the Act, or

challeng e the Ac t’s constitutionalit y . The Court will first addre ss the statutory and administrative ar g uments, and then the c onstitut ional challeng es. 7I. Statutory and Administrat ive Argum ents

a. Duty to Reg ister under

D.C. L aw Def endant a rgues that he w as " unable" to reg ister under SORNA beca

use he doe s not have a duty to reg ister under

District of Columbia law. This argument has no merit. De fenda nt

was c onvicted in 1997 of one count of indec ent liberties with a c hild under North Car olina law and orde red to re g ister as a sex offender

for ten year s following r elea se fr om jail. See N.C. Gen. Stat. § 14-208.7 (1995); Gov’t’ s Mot. at 1. Cott on alleg edly moved to the District of Columbia within that ten-y ear

reg istration period. Superse ding I ndictment at 1. The D istrict of Columbia require s individuals convicted of sex offense s in other states to re g ister in the District if their underlying c onvictions fit within t he def inition of a "r eg istration offense " unde r the D.C. sex offe nder r eg istration statute. See 22 D.C. Code § 4001, et seq . Her e, Cotton’s conviction for indece nt liberties with a minor under N orth Carolina lawis a " reg istration offense " unde r D.C. Code § 4001(8)( G). He nce, Cotton had a duty to reg ister in the District of Columbia. b. SORNA’s Effe ctive Date The Circuits " have disa g ree d about the mea ning a nd eff ect of [S ORNA' s] statutory /regulatory

mosaic." DiTomasso , 621 F.3d at 21. Hence , this Court wil l first addre ss the centr al disputed issue: exactly when “ persons with pre -SORNA sex-offense convictions bec ame subject to the Ac t’s reg istration require ments.” Carr , 130 S. Ct . at 2234 n.2. The issue turns on the " two pertinent c lauses" of § 16913(d) and the e x tent of the Attorne y Gene ral' s deleg ated authority

. See id. Courts have interpr eted the statutory lang uag e in two way s. Some have rule d that the first cla

use, which state s that "[t] he Attorne y Gene ral shall have the authority to specify 8the applica bility of the re quirements of this subcha pter to sex offende rs convicte d befor e the

enac tment of this chapter or its implementation in a particular jurisdiction," § 16913(d) , "una mbiguously

deleg ated" to the Attorney Gene ral the a

uthority to determine the applicability of SORNA to all persons with pre- SORNA sex-offense c onvictions. See Cain , 583 F.3d at 419. Other c ourts have f

ocused on the second c lause of § 16913( d) -- "to pr escr ibe rules f or the reg istration of any

such sex offende rs and f

or other c ateg ories of se x offe nders who a re una ble to comply with subsection (b)" -- a

nd deter mined that the Attorney

Gene ral ha d more limited authority to determine SORNA' s applicability "only as to specif

ic subsets" of sex offende rs who

wer e " unable to initially

reg ister under

SORNA." See DiTomasso , 621 F.3d at 21. Under the first view, c ourts have c oncluded that, by its plain langua g e, SORNA did not apply to previously

convicted se x offe nders until the Attorney Gene ral so spec ified. See Hatche r , 560 F.3d 229. That plain meaning approa ch to statutory construction is well established. I ndeed, "[t]he plain meaning of leg islation should be conclusive, except in the ' rar e ca ses [in which] the literal application of a statute will produce a re sult demonstrably at odds with the intentions of its draf ters.' " United States v. Ron Pair Enterp., Inc. , 489 U.S. 235, 242 (1989) (quoting Griff in v. Oce anic Contrac tors, I nc. , 458 U.S. 564, 571 (1982)); see a lso Qi-Z huo v. Meissner , 70 F.3d 136, 140 (D.C. Cir.1995) (" Where ... the pla in lang uag e of the statute is clear , the cour t ge nera lly

will not inquire furthe r into its meaning." ). Only if the " plain lang uag e compe ls an ' odd result' " ma y the cour t "r efe r to evidenc e of le g islative intent other than the text its elf." Eng ine Mfrs. Ass' n v. EPA , 88 F.3d 1075, 1088 ( D.C. Cir. 1996). "[R] ebutting the presumption cre ated by clea r lang uag e is onerous" and the pr oponent " must ' show either that, as a matter of historical fac t, Congr ess did not mean what it appea rs to have said, or that, as a matter of logic and statutory

9structure , it almost surely could not have meant it.'" Nat' l Publi c Radio, Inc. v. F CC , 254 F.3d

226, 230 (D.C. Cir. 2001)(quoting Eng ine Mfrs. Ass' n , 88 F.3d at 1089). This Court joins the Circuits that have r uled that the plain languag e of SORNA c lear ly deleg ates a

uthority to the Attorney

Gene ral to spec ify

the re quirements of SORNA f or all sex offe nders who w ere convicted be fore SORNA’s ena ctment. The two c lauses of subse ction 16913(d) support this interpre tation. The first cla use states that the A ttorney Gene ral " shall have the authority

to specify

the applica

bility of the re quirements of this subchapte r to sex offender s convicted be fore the ena ctment of this chapte r [ i.e. , J uly 27, 2006] or its implementation in a particula r jurisdiction." 42 U .S.C. § 16913(d). "This c lause, fa irly rea d, deleg ates to the Attorne y Gene ral the a

uthority to specify

the re quirements of SORNA f or all sex offende rs who we re convicted be fore the ena ctment of SORNA." Hatche r , 560 F.3d at 227. Congre ss selecte d the phrase "sha ll have the a

uthority ," which sig nals that Congr ess g ave the Attorney Gene ral exclusive authority

to determine the applicability of SORNA to pre- SORNA offe nders. See id. There fore , until the Attorney Gene ral a ffirmatively

specifie d, SORNA' s require ments would apply only prospec tively

and not to pre- SORNA offe nders suc h as Cotton. The sec ond clause of § 16913(d) deleg ates to the Attorne y Gene ral the a

uthority "to presc ribe rule s for the r eg istration of any such sex offende rs and f

or other c ateg ories of se x offe nders who a

re una ble to comply

with subsection (b)." 42 U.S.C. § 16913(d). " The sec ond clause of the subsec tion thus gives the Attorne y Gene ral the a

uthority to promulgate re g istration rules for two distinct groups of

sex offender s: (1) sex offende rs who we re c onvicted bef ore July 27, 2006, and (2) offe nders who a re una ble to comply

with subsection (b), the subse ction containing SORNA' s initi al re g istration require ments." Hatche r , 560 F.3d a t 227. The first and

10second c lauses, then, tog ether deleg ate to the Attorne y

Gene ral the a

uthority to (1) " specify

the applicability " of

SORNA with reg ard to pre -SORNA offe nders a nd (2) " presc ribe rule s for the reg istration" of

all pre- SORNA offe nders in addition to "othe r categ ories of se x offe nders" who

are unable to comply

with the initial reg istration require ments. See § 16913(d). The title of § 16913(d) may appea r to limit the applica

bility of the subsec tion to sex offe nders " unable to comply with subsection (b)." See Cain , 583 F.3d at 416. But " [o] nly if we deter mine that the terms of a

statutory provision are ambig uous are we then pe rmitted to consider other e vidence to interpret the me aningof the provision, including the leg islative history and the provision's he ading or title." Hatche r , 560 F.3d at 226; see Bhd. of R.R. Trainmen v. B alt. & Ohio R.R. C o. , 331 U.S. 519, 528-29 (1947) ( "[T]he titl e of a statute and the he adingof a se ction cannot limit the plain meaning of the text."). I f the text of subsection (d) is not ambig uous -- a nd here it is not -- " its ti tle makes no diff ere nce." Cain , 583 F.3d at 416. Furthe rmore, the title does not nece ssarily

“conf lict" with this Court’s interpre tation of § 16913(d), it mere ly "r efe rs to the authority g iven to the Attorney

Gene ral by

the sec ond clause of subsec tion (d)" rathe r than the first. See id. Her e, more over, the plain lang uag e does not " compel[] an ' odd result.' " See Eng ine Mfrs. Ass' n, 88 F.3d at 1088; Hatche r , 560 F.3d at 228 (" [S ubsection (d) does not] run[ ] counter to the clea rly expressed cong ressional intent or pr oduce[] an absurd outcome." ). " Given the pa tchwork of state a pproac hes towar ds sex offender reg istration that exi sted prior to the e nactment of SORNA, it was not 'a

bsurd' for Cong ress to dele g ate this authority to the Attorney

Gene ral, with the intent that he exerc ise it to effe ctuate a compre hensive re g istration sy stem." Hatche r , 560 F.3d at 228. I ndeed, subse ction (d) de leg ated to the Attorne y Gene ral the a

uthority to determine

11whether

SORNA’s requir ements apply to sex offe nders with pre -SORNA convictions, and that is prec isely what the Attorne y

Gene ral spec ified in his Febr uary 28, 2007 interim rule. Under the sec ond view, which this cour t does not adopt, courts have rule d that the plain lang uag e is ambig uous and that, re ad in context, SOR NA applied to pr eviously convicted se x offe nders on the date of its enac tment. See DiTomasso , 621 F.3d at 21 (" No less an a uthority than the Supreme Court has war ned that ' the meaningof statutory lang uag e, plain or not, de pends on context.'" ) (quoting Holloway v. United States , 526 U.S. 1, 7 (1999)). I n DiTomasso , the Fir st Circuit observed that the lang uag e in the first c lause of subse ction (d) " might appe ar straig htforwa

rd if re ad in a va cuum, [but] a mec hanica l rea ding of it as applying to a ll previously convicted se x offe nders would wr est it from its contextual mooring s." 621 F .3d at 22. Simil arly , the Tenth Circuit in Hinckley found the languag e ambiguous and ende avore d to determine Congr ess' s intent: [W ]hen considere d in context, i t becomes c lear that Congr ess did not intend to exempt all sex offe nders c onvicted bef ore July 27, 2006, from SORNA' s require ments. Many

sex offender s convicted be fore that date ( those still incar cer ated or

awa iting sente ncing ) would be a ble to comply

with subsection (b)' s initi al re g istration require ment. There would be no re ason for Congr ess to exempt such sex offe nders. Cong ress wa s likely conce rned w ith old convictions -- offe nders who ha d alre ady serve d their sentenc es and ne ver be fore had bee n require d to reg ister. Hinckley , 550 F.3d at 934. After simil arly ruling that subsection (d) w as ambiguous, the Eig hth Circuit in May deter mined that an alter

native interpr etation that limited the Attorney Gene ral' s authority

was "e minently

rea sonable." May , 535 F.3d at 918 (" Although the word ' shall' indicates a cong ressional dire ctive, the que stion remains as to what § 16913( d) wa s specific ally direc ting the Attorney Gene ral to re g ulate." ). The c ourt in May conclude d that "[a]n additional possible 12meaningof subsec tion (d) is that past offe nders . . . a re inc luded withi n (and not a separ ate g roup from ) the broa der c ateg ory of ' sex offender s who are unable to comply with subsection (b),' and it is only as to those ' sex offender s who are unable to comply with subsection (b)' that the Attorney Gene ral wa s g iven authority under subse ction (d) to issue cla rifying r egulations." I d. (quoting United States v. Be asley , 2007 WL 3489999 (N.D. G a. Oc t. 10, 2007)) (e mphasis in May ). This "a dditional possibl e mea

ning of subsection (d)," the cour t concluded, w as " supported by the use of the statutory

terminolog y

' other cate g ories of se x offe nders who a re una ble to comply

with subsection (b) of

this section.'" May , 535 F.3d at 918 (quoting § 16913( d)). The "of fende rs convicted be fore J uly

27, 2006" c ould be " included within the ' other c ateg ories of se x offe nders who ar e unable to comply with subsection (b) of

this section.'" I d. And, " at the ver y least," this alternative possible meaning "c reates an ambiguity , and trig g ers the pe rmissible refe renc e to the title." I d. (citing I

NS v. Nat' l Ctr. for I mmigra nts' Rig hts , 502 U.S. 183, 189 (1991) (" [T] he title of a statute or

section ca

n aid in resolving an ambiguity in the leg islation's text.")). H ence , when "c onsidering § 16913(d)' s titl e and the overa ll design of SORNA," the May

court c oncluded that "subse ction (d) ' is very

narr ow in scope: only

those curr ently

unreg istered of

fende rs literally unable to comply

with [ subsection] (b) bec ause of the ag e of the ir convictions ar e within the g rey

are a which the Attorney

Gene ral is authorized to illumi nate by rule.' " May , 535 F.3d at 918-19 (citations omitted). This view stray s too far f

rom the plain, unambig uous lang uag e of se ction 16913(d) of SORNA. These c ourts have mistake nly attempted to cr aft Cong ress' s intent, its "likely

conce rn[s] ," a

nd "a dditional possibl e mea ning[s]" from stra ined re interpre tations of that statutory text
. See Hinckley , 550 F.3d at 934; May , 535 F.3d a t 918-19. But this is not one of the " rar e 13case s [i n which] the literal application of a statute will produce a re sult demonstrably at odds with the intentions of its drafters," see Ron Pair Enterp., Inc. , 489 U.S. at 242, and the g overnme nt cannot " show either that, as a matter of historical fa ct, Cong ress did not mean w hat it appea rs to have sa id, or that, as a matter of log ic and statutory structure , it almost surely could not have mea

nt it." Nat' l Publi c Radio, Inc. , 254 F.3d at 230 (quoting Eng ine Mfrs. Ass' n , 88 F.3d at 1089). To be sure , courts may be uncomf

ortable a dopting a

statutory interpre tation that will reduce the number of sex offender

reg istration convictions under SORNA, but this Court must follow Congre ss’s stated intent and not substitut e alter nate mea nings f or the plain languag e of the statute. I n this Court's assessment, the " alternative interpre tation of § 16913(d) is for eclose d by the plain languag e of the subsection." Hatche r , 560 F.3d at 228. I ndeed, that "inter preta tion eff ectively writes the f

irst clause of

§ 16913(d) out of the statute" and henc e " is not a tenable interpre tation." Hinckley , 550 F.3d at 949 (McConnell, J ., dissenting) . A straightforwa rd

rea ding of

§ 16913(d) r evea ls a ref

ere nce to two distinct categ ories of se x offe nders: " [t ]he second c lause of the subsection spec ifies that the Attorne y Gene ral may

presc ribe re g istration rules for ' such sex offende rs,' i.e. pre -SORNA offe nders, and for other cate g ories of se x offe nders who a

re una ble to comply

with the initial reg istration require ments." Hatche r , 560 F.3d at 228 (emphasis in orig inal). Thus, " [i ]t is . . . clear that the categ ory

of pre -SORNA offe nders is a distinct categ ory from ' cate g ories of se x offe nders who a re una ble to comply

with subsection (b),' and the c ateg ory of pre -SORNA offe nders is not included within this latter g roup. To interpre t § 16913(d) as inc luding the se t of pre- SORNA offe nders within the set of ' cate g ories of sex offende rs who ar e unable to comply with subsection (b)' ignor es the ter m 'othe r,' which 14indicates that the two se ts are distinct." I d. ; see a lso Hinckley , 550 F.3d at 951 (McConnell, J .,

dissenting) (" I t would be like interpre ting a statute that applies to ' humans and to other c ateg ories of primate who walk on two leg s' as excluding pa raple g ic humans." ). The two c lauses of § 16913( d) g ive the Attorne y Gene ral distinct authorities -- to deter mine the re troac tivity

of SORNA and to pre scribe r ules for r eg istration under SORNA. Neither clause is itself ambiguous; nor doe s rea ding the clause s toge ther produc e any ambig uity or an odd r esult. See Hatche r , 560 F.3d at 228-29; Hinckley , 550 F.3d at 949-52 (McConnell, J., dissenting) . To adopt the a lternative inter pretation urg ed by

some courts a s better a ccomplishing a per ceive d leg islative intent would simpl y ignor e the plain languag e of § 16913( d) ac tually employ ed by

Congr ess, which this Court will not do. Hence, the Court concludes that SORNA did not apply

to previously

convicted se x offe nders until the Attorney Gene ral promulg ated a

rule saying so. Tha

t leads to the question, discussed be low, whether the interim rule, pr omulgated on Fe bruar y 28, 2007, set that eff

ective date or whe ther it was issued in violation of the APA, a nd there fore could not do so.

c. Administrative Procedur e Ac t Pursuant to the authority

provided in § 16913(d) , on Fe bruar y 28, 2007, the Attorney Gene ral issued a

n interim rule making SORNA retroa ctive to all sex offende rs convicte d prior to J uly 27, 2006. 28 C.F.R. § 72.3. The interim rule was made eff ective immediate ly

and wa s issued without a pre- promulg ation notice or c omment period, althoug h the Attorney Gene ral stated that he w ould acc ept comments on the rule throug h April 30, 2007. See 72 Fe d. Reg . at 8895-97 (2007) . On J uly 2, 2008, the Attorney

Gene ral published the f

inal Sex Offe nder

15Monitoring, Appr ehending , Reg istering and Tra cking(" SMART") Guide lines for jurisdictions to

implement SORNA. See 73 Fe d. Reg . 38030 (Jul y 2, 2008). Gene rally , under the APA, an ag ency must follow specific pr ocedur es bef ore issuinga rule. The APA require s that "[g ]eneral notice of proposed rule makingshall be published in the Fe dera l Reg ister," 5 U.S.C. 553(b); that "[a]fter notice require d by this section, the ag ency

shall g ive interested pe rsons an opportunity to participate in the rule makingthroug h submissi on[s] ," id. § 553(c) ; that "[a]fter conside ration of the r eleva nt matter pre sented, the ag ency shall incorpora te in the rules adopted a

concise g ener al statement of the ir basis and purpose ," id. ; and that a " substantive rule" shall be published " not less than 30 day s befor e its eff ective date," id. § 553(d). See U.S. Telec om Ass'n v. F .C.C. , 400 F.3d 29, 40 ( D.C. Cir. 2005).

Howeve r, the a g ency

is relieved of

these notice and comment oblig ations "when the ag ency for g ood cause finds (and inc orporates the findingand a br ief stateme nt of rea sons there for in the r

ules issued) that notice a

nd public proce dure the reon a re impra cticable , unnece ssary , or contra

ry to the public interest." 5 U.S.C. § 553(b)(3)( B) . The a g ency may also be excused from the r equire d 30-day delay in a published rule’ s eff

ective da te " for g ood cause found and published with the rule." § 553(d)( 3). In issuing the inter im rule on the re troac tivity of SORNA, the Attorney

Gene ral invoked the se g ood cause exceptions: The immediate e ffe ctiveness of this rule is nece ssary

to eliminate any possible uncer

tainty about the applica

bility of the Ac t's r equire ments -- a nd related means of e nforc ement, including criminal liability under 18 U .S.C. 2250 for sex offe nders who know ingly fail to reg ister as re quired -- to sex offe nders whose predic ate c onvictions predate the ena ctment of SORNA. Delay in the implementation of this rule would impede the e ffe ctive re g istration of such sex offe nders a

nd would impair immediate ef forts to protec t the public from sex offe nders who f

ail to reg ister throug h prosec ution and the impositi on of cr iminal sanctions. The r esulting pr actica l dang ers include the commission of additional sexual assaults and child sexual abuse or e x ploitation offenses by sex offender s 16that could have been pr evente d had loca l authorities and the c ommunity been awa re of their pre sence , in addition to gre ater difficulty in appre hending perpe trators who ha

ve not bee n reg istered a

nd trac ked as pr ovided by SORNA. This would thwart the leg islative objective of “ protec t[ ing] the public fr om sex offe nders a

nd offe nders a g ainst children” by establishing “ a compr ehensive national sy stem for the r eg istration of those offe nders,” SORNA § 102, beca use a substantial class of sex offende rs could eva de the Ac t's r eg istration require ments and enf orce ment mecha

nisms during the pe ndency of a pr oposed rule a

nd delay in the ef fec tiveness of a

final rule. I t would acc ording ly

be contr ary

to the public interest to adopt this rule with the prior notice a

nd comment per iod normally require d under 5 U .S.C. 553(b) or with the delay ed ef

fec tive date nor

mally require d under 5 U .S.C. 553(d). 72 Fe d. Reg . at 8896-97. Cotton arg ues that the Attorne y Gene ral did not demonstrate "g ood cause " to by pass the notice and c omment and publication re quirements of the APA. Indeed, the D.C. Circuit instructs that the " g ood cause " e x ception is to be " narr owly construed a

nd only reluc tantly

countena nced. . . . [I ]t s use should be limited to emerg ency situations." Utility

Solid W aste Ac tiviti es Group v. Envtl. Prot. Age ncy , 236 F.2d 749, 754 ( D.C. Cir. 2001) (quoting Tenn. Ga s Pipeline Co. v. FERC , 969 F.2d 1141, 1144 ( D.C. Cir 1992)). The Sixt h and Ninth Circuits have r uled that the g overnme nt did not meet the heavy "bur den to show that g ood cause exis ts." Cain , 583 F.3d at 422; see Valver de , 2010 WL 5263142, at *5 (" [T] he Attorne y Gene ral’s state ment acc ompanying the interim rule pr ovided no rational justi fication for why comply ing w ith the normal require ments of the APA would have resulted in a suf ficient risk of ha

rm to justify

the issuance of the F ebrua

ry 28, 2007 retroa ctivity

deter mination on an emer g ency basis.") . The F ourth and Eleventh Circuits have rea ched the opposite conclusion. See Gould , 568 F.3d at 470 (" I n the circ umstances, we conclude that the Attorney Gene ral ha d g ood cause to invoke the exception to providing the 30-da

y notice." ); Dea

n , 604 F.3d at 1282 (reje cting the re asoning in Cainand

17holding that " [t ]he Attorney Gene ral ha d g ood cause to by pass the Administrative Proce dure Act' s notice and c omment require ment") ; see a lso Dix on , 551 F.3d at 582 (noting only that defe ndant made a

"f rivolous" APA a

rgument, but acquitting de fenda nt beca use his conviction violated the Ex Post Facto Clause). The g overnme nt argues that the c ourts in Dea nand Gould

are corr ect, a

nd that the Attorney Gene ral prope rly

invoked the public intere st element of the g ood cause exception when he issued the inter im rule. Gov' t's Supp. Mot. in Opp' n. to Def.' s Mot. to Dism iss ("G ov' t Supp. Opp' n") [Docket Entry

19] at 2-3. In Gould , the Four th Circuit concluded that the A ttorney Gene ral ha d g ood cause "to invoke the exception to providing the 30- day notice" beca

use " there

was ne ed for

leg al ce rtainty

about SORNA’s ' retroa ctive' application," "a conce rn for

public safe ty that these off

ender s be re g istered in ac corda nce w ith SOR

NA as quic kly

as possible," and "the Attorney

Gene ral did provide f

or and r ece ive post-promulg ation public comments." Gould , 568 F.3d at 470. The Eleve nth Circuit in Dea nag ree d with Gould

that the " public safe ty argument" c onstitut ed g ood cause , but noted that the nee d for leg al ce rtainty alone may

not be sufficie nt to establish good c ause, a nd "tha t allowing post-pr omulga tion comments to resolve any harm c aused by

a lac k of notice a

nd comment would re nder the notice and c omment provision toothless." Dea

n , 604 F.3d 1281. This Court ag ree s with the Six th Circuit’s observation in Cainthat the Attorney Gene ral' s explanation that delay

would "e liminate any

possible uncer

tainty about the applica

bility of the Act' s require ments" is insuffic ient, beca use any regulation has the ef

fec t of resolvinguncer

tainty

. See Cain , 583 F.3d at 421. "[G]ood cause to suspend notice and comment must be supporte d by more than the bare need to ha ve re g ulations." Nat' l Ass'n of Fa rmworke rs Org s. v. Marshall , 628

18F.2d 604, 621 ( D.C. Cir. 1980). I ndeed, " [i ]f 'g ood cause ' could be satisfied by an Ag ency ’s

asser tion that 'nor

mal proce dures we re not followe d beca use of the ne ed to provide immediate g uidance and information[ ,] . . . t hen an e x ception to the notice r equire ment would be cr eate d that would swallow the rule .' " Valver de , 2010 WL 5263142, at *6 (quoting Z hangv. Slattery , 55 F.3d 732, 746 ( 2d Cir. 1995)). He nce, " [a] ' desire to pr ovide immediate guidance , without more, does not suffice for g ood cause .' " Cain , 583 F.3d at 425 (quoting Mobil Oil C orp. v. De p' t of Energ y , 610 F.2d 796, 803 ( Temp. Emer . Ct. App. 1979)). Be y ond "e liminat[ ing] any possible uncer

tainty about the applica

bility of the Ac t’s require ments," how ever , the g overnme nt merely highlig hts the Attorney

Gene ral’s e x planation that SORNA cre ates a

compre hensive fe dera l reg istration require ment, enfor ced by a substantial fede ral c riminal penalty . Gov' t Supp. Opp'n at 5; see 72 Fe d. Reg . at 8896-97. The g overnme nt maintains that the Attorney Gene ral identified " specific rea sons" f or g ood cause that "c erta inly satisf[y ] t he def

inition of an emerg ency ." G ov’t Supp. Opp’n at 8. Citing the pr eamble to the interim rule, the g overnme nt highlig hts the Attorney Gene ral’s e x planation of " the observe d trend of pr e-SORNA se x offe nders c raf ting a rguments that SORNA does not apply to them" a

nd the " risk of sexual assaults and child sexual abuse if pr e-SORNA se x offe nders – ' virtually the entire se x offe nder popula tion'" – wer e not re quired to re g ister under SORNA. I d. (citing 72 Fe d. Reg . at 8896-97). G iven that the " risk of re cidivism posed by sex offender s is 'f

rig htening and high[,]'" Smit h v. Doe , 538 U.S. 84, 103 (2003) (inter nal citations omitted), the g overnme nt argues that any

delay of SORNA' s application to all sex offender s would be contra ry to the public interest. Gov' t Supp. Opp'n at 5. Furthe rmore, the g overnme nt notes that "SORNA br ings to be ar

19the power

of fe dera l law enf

orce ment, including the United States Marsha ls Service, to assist in locating and appr ehendingsex offender s who fail to re g ister." Gov’t Supp. Opp’n at 9. A " trend" of " virtually

the entire sex offender

population" attempting to eva de SORNA reg istration, or a " frig htening and hig h" r isk of rec idivism for se x offe nders mig ht well qualify as

an eme rg ency " a

nd thus establish good c ause. B ut these statements a re simply not present in the Attorney Gene ral' s g ood cause explanation. See 72 Fe d. Reg . at 8896-97. And the interim rule makes no mention of the Ma rshals Service and how it might " appre hend[] sex offender s who fail to reg ister." See id. I n Dea n , the Eleve nth Circuit supports it s g ood cause analy sis by observingthat SORNA "e x pands the de finition of sex offe nder to include . . . fore ign of fende rs and some juve nile offe nders" and provide s "substantially " e nhance d penalties c ompare d to previous fe dera l reg istration offense s. Dea n , 604 F.3d at 1282. But in his concur renc e in Dea

n , in which he conclude d that the Attorney Gene ral fa iled to establish good c ause, Judge Wil son acc urate ly notes that " the majority

opinion's a

rguments for g ood cause on the basis of e x tra he lp from the U.S. Marshals, and the expanded scope and enha nced pe nalties of SORNA, do not expli citly appea r in the 400-wor d justification that the APA require d the Attorney Gene ral to publish as a condition of g ood cause ." I d. at 1287 n.13 (Wilson, J ., concur ring ). " Courts are not supposed to help an a dminist rative a g ency make its ca se whe n the ag ency by itself cannot." I d. A " revie wing court should not attempt itself to make up for such def iciencie s; [ it] may

not supply

a re asoned basis for the a g ency ’s ac tion that the ag ency itself has not g iven." Motor Vehicle Mfrs. Ass’n of U.S., I nc. v. State F arm Mut. Auto Ins. Co. , 463 U.S. 29, 43 (1983).

20The g overnme nt asserts that the APA g ood cause standard e x tends beyond "e merg ency

situation[ s]," to "whe re de lay could re sult in serious harm." Gov' t Supp. Opp'n at 8, 9; Dea n , 604 F.3d at 1281 (" Delay

ing implementation of the regulation to accommodate notice and c omment could re asonably

be found to put the public saf ety at g reater risk." ). Perha

ps so, but whether the g overnme nt must demonstrate an " emer g ency situation" or just a risk of se rious harm, the g overnme nt's a

rgument ultimately

falls under

the weig ht of D.C. Circuit case law that has repe atedly

instructed that the g ood cause standard must be " narr owly construed a

nd only reluc tantly

countena nced." Utility

Solid W aste Ac tiviti es Group , 236 F.2d at 754; see a lso Tenn. Gas Pipeline Co. , 969 F.2d at 1144; J ifry v. F.A.A

. , 370 F.3d 1174, 1179 ( D.C. Cir. 2004); New J erse y v. EPA , 626 F.2d 1038, 1045 ( D.C. Cir. 1980).

The e x emption of situations of emerg ency or nec essity

is not an "e scape clause " in the sense that any

ag ency has discre tion to dis reg ard its terms or the fac ts. A true and supported or

supportable f

inding of nece ssity or eme rg ency

must be made a

nd published. "Imprac ticable" means a situation in which the due and r equire d execution of the ag ency

functions would be unavoidably preve nted by

its undertaking public r

ule-making

proce eding s. New Jersey

v. EPA , 626 F.2d at 1046 (quoting S. Doc . No. 248, 79th Cong., 2d Sess. 200 (1946)) . The Attorne y

Gene ral’s pr offe red r easons f or g ood cause here simply do not meet this strict standard. Ex ceptions to the g ood cause require ment have be en found if Cong ress " set[s] aside the APA when it spec ifically require s rapid ac tion." Cain , 583 F.3d a t 421; see Methodist Hosp. of Sacra mento v. Shalala , 38 F.3d 1225, 1237 ( D.C. Cir. 1994) (findingg ood cause when " Congr ess has expressed its clea

r intent that APA notice a nd comment proc edure s need not be followed" ). Her e, whe n Congr ess deleg ated r egulatory authority to the Attorney

Gene ral, it did not ex cuse 21him from following the APA' s require ments. See Cain , 583 F.2d at 421. No indication of such

urg ency can be found in section 16913(d) or elsewhere in SORNA. I ndeed, " in spite of the Attorney Gene ral’s hur

ried rule making , no state thus far has ele cted to implement SORNA, and the Attorney

Gene ral re cently

g rante d a blanke t one-y ear extension t o all jurisdictions to allow substantial implementation of the Act." Valver de , 2010 WL 5263142, at *7 (quoting Gould , 568 F.3d at 480 (Michae l, J . dissenting) ). This Court concludes that the g overnme nt cannot demonstrate that the ef fec tive date of SORNA poses an " emer g ency situation" or that " delay

could re sult in serious harm," g iven the pre- exis ting state and fe dera l sex offe nder r eg istry scheme s that were in place a lrea dy and that allowed f or the " prosec ution and imposit ion of criminal sanc tions" for a sex offende r' s failure to reg ister. See Cain , 583 F.3d at 422. The re troac tive application of SORNA ther efor e " does not prese nt the ty

pe of sa fety

emer g ency

that some courts have re lied upon to find just cause to by pass notice a

nd comment." I d. Public safety emer g ency

situations -- rar ely

found -- have be en used to dispense with APA re quirements whe n "a safe ty investigation shows that a new sa fety rule must be put in place immediately ," Util. Sol id Waste Activities Group , 236 F.3d at 754-55, or whe n "the ag ency

had spec ific re asons to conclude that its ex isting re g ulations insufficiently protec ted public safe ty ," Cain , 583 F.3d at 422; see a lso J ifry , 370 F.3d at 1180 (finding g ood

cause for r egulations that suspended an individual' s pilot certifica te if the TSA dete rmined that pilot posed a secur ity

threat in light of " leg itimate conce rn over the threat of furthe r terr orist acts involving air cra ft in the afte rmath of Septembe r 11, 2001" ). This Court is lim ited to review ing the Attorney

Gene ral' s proffe red justification for g ood cause , and her e he " g ave no spe cific

22evidenc e of a ctual har m in his conclusory

statement of r easons, a

nd g ave no e x planation for why he could a ct in an eme rg ency fashion" to apply

SORNA retroa ctively

. Cain , 583 F.3d 422. Moreove r, " [t ]he fact that the r egulation imposes a new oblig ation, on pain of seve re criminal sanc tions, only

reinfor ces the need f

or the statutory

protec tions in pl ace when a n ag ency eng ag es in quasi-leg islation." I d. I n United States v. Picciotto , the D.C. Circuit held that the Park Service had not prope rly promulg ated a

rule unde r the APA a

nd noted that " befor e a pe rson is threatene d with jail . . . the gove rnment must ensure that the rule itself is not in violation of the law." 875 F.2d 345, 349 ( D.C. Cir. 1989). The c ourt reve rsed the de fenda nt's r egulatory conviction, observingthat "[c]ertainly , a cr iminal prosecution founde d on an ag ency rule should be held to the strict letter

of the APA." I d. at 346. Where de fenda nts face felony

char g es and prison sentenc es of up to ten y ear s, as is the ca se her e, adhe renc e to the proc edura l require ments of the APA is eve n more c ritical. This Court is not persua ded by the har mless error

argument advanc ed in the Dea n

concur renc e. See Dea

n , 604 F.3d a

t 1288-90 (Wilson, J ., concur ring ). The a

rgument proce eds that "' [i ]f the ag ency ’s mistake did not aff ect the outc ome, if it did not prejudice the pe titioner, it would be sense less to vacate and r emand f or consider ation.' " I d. at 1288 (quoting PDK L abs. I nc. v. DEA , 362 F.3d 786, 799 ( D.C. Cir. 2004). Under this analy sis, any

SORNA offe nder

arr ested more than 30 day s after the promulg ation of the interim re g ulation would not be prejudice d by

the Attorney

Gene ral’s f

ailure to c omply

with the APA’s pre -ena ctment delay require ment. And any

offe nder w ho could not demonstrate that "he could have arguably mounted a ' cre dible challeng e' for c hang ing the rule a s it affe cted him" would not be pre judiced by the Attorney

Gene ral’s f

ailure to c omply

with the APA’s notice a

nd comment re quirements.

23See id. But this argument would evisce rate the g ood cause standard be cause "a n ag ency could alway s violate the APA' s proce dural re quirements base d on the re prese ntation that it would have adopted the sa

me rule ha d the prope r proc ess bee n followed." Utesch , 596 F.3d at 312 (" Courts have g ener ally

applied the ha

rmless-er ror r ule in the ag ency

context when the proc edura l defic iencies did not def

eat the pur

pose of the by

passed r equire ments. . . . Here , the proc ess was fata lly flawe d; the Attorney

Gene ral provide d aff

ecte d parties no oppor

tunity to participate in the

cra fting of the interim rule before it purported to take e ffe ct ag ainst them.") ; Valver de , 2010 WL 5263142, at *9 n.3 (" ' [T] he interim re g ulation’s proce dural de fec ts were not harmless' beca use . . . ' [t ]he fact that the A ttorney Gene ral e ventually

made SORNA re troac tive throug h leg itimate

means c annot sustain prosec ution of an individual based on c onduct committed long be fore the final g uideline’s ena ctment.' ") (quoting Utesch , 596 F.3d at 312-13). Nonethele ss, the indictment may survive Cotton’s motion t o dismiss despite the Court' s conclusion that the interim rule is invalid under the APA. In Utesch , the Six th Circuit assessed "whether there exis ts any

valid regulation promulgated by the Attorney

Gene ral pursua

nt to §16913(d)." 596 F.3d at 308. The cour t found " three candidates: (1) the F ebrua ry 28, 2007 interim regulation, (2) the pr eliminary SMART guidelines issued on Ma y 30, 2007, and (3) the final SMART guide lines issued on J uly 2, 2008." I d. Be cause this Court concludes that the Fe bruar y 28, 2007 interim rule wa s not issued in accor dance with the APA, that rule did not make SORNA e ffe ctive ag ainst Cotton. The preliminary SMART guidelines, whic h wer e promulg ated unde r notice a nd comment proc edure s, included a pr ovision making SORNA retroa ctive. See id. ; 72 Fed. Re g . at 30,212. The pr eliminary g uidelines wer e published on May 30, 2007 and stated that comments would be ac cepte d until August 1, 2007. 72 F ed. Reg . at

2430,210. Henc e, those pre liminary guidelines simply

constituted a propose d rule, not a f inal rule, and did not have the forc e of la w. See Utesch , 596 F.3d at 310-11. Subsequently , the Attorney Gene ral " issued the final SMART g uidelines on J uly 2, 2008, responding

to the comments

rec eived a

nd maintaining that SORNA would be applied re troac tively ." I d. at 310; 73 Fe d. Reg

. at 38,030-31; 38,035-36; 38,046-47. " Thoug h the guidelines themselves provide an immediate eff ective da te of July 2, 2008, the Attorney

Gene ral provide d no statement of r easons to esta blish

' g ood cause ' for disposing of the thirty -day publication require ment." Utesch , 596 F.3d at 311 n.8;

see 5 U.S.C. § 553(d). Henc e, " SORNA beca me ef fec tive ag ainst offe nders c onvicted bef ore its

enac tment thirty

day s after

the final SMART g uidelines wer e published: that is, on Aug ust 1, 2008." Utesch , 596 F.3d at 307; acc ord Valver de , 2010 WL 5263142, at *10. This Court ag ree s with the rea soning of the Six th and Ninth Circuits, under which the interim rule is invalid and SORNA did not become e ffe ctive until Aug ust 1, 2008, thirty day s afte r the fina l SMART guidelines we re issued. H ere , Cotton's indictment char g es ac tivity in violation of SORNA "be tween on or about May

2007 and on or a

bout October

2008." Superce ding I

ndictment at 1. Henc e, the c harg ing pe riod in Cotton's indictment ext ends three months bey ond the August 1, 2008 SORNA effe ctive date and ther efor e the indictment should not be dismissed at this ti me. At least two other district courts have followed this logic . I n United States v. Coleman , 2009 WL 4255545 (E.D. Ky . Nov. 24, 2009), the indictment a lleg ed that the def

endant' s actions occ urre d "[b]etween on or about a date in April, 2007, the exact date unknown, and Apr il 28, 2009." Coleman , 2009 WL 4255545, at *1. The c ourt rea soned that eve n though the interim rule could not be a pplied to the defe ndant in light of Cain , the final SMART g uidelines " clea

rly " c ould be. I d. at *4. Simil arly , another court de cided not to dismiss t he

25defe ndant’s indictment bec ause it included a time period more tha

n a y ear afte r August 1, 2008. See United States v. J ackson , 2010 WL 3325611, at *13 (N.D . Cal. Aug . 23, 2010). The c ourt in J ackson

rea soned that, " [c] onsideringonly the fa ce of

the indictment, it is poss ible that Def endant c ommitt ed the pr oscribed a cts afte r August 1, 2008, the date of the adoption of the final re g ulations on retroa ctivity . Under these c ircumstance s, dismis sal of the indictment would be inappr opriate." I d. The same is true her e. He nce, the Court will not at thi s time dismi ss Cotton’s indi ctment for the Attorney Gene ral’s f

ailure to c omply

with the APA beca

use it may

be that Cotton t rave led and f ailed to re g ister af

ter August 1, 2008 but before October 30, 2008. d. I mplementation of SORNA Cotton arg ues that bec ause the District of Columbia has not y et implemented SORNA, he has no duty

to reg ister under

SORNA. He a sserts that " althoug h SORNA beca me law on July

26, 2006, Congr ess did not identify a date upon which the se x offe nder pr ovisions are to be e ffe ctive, other than to state a

deadline of

J uly 27, 2009, for implementation of the Act by all jurisdictions." Def .' s Mot. to Dism iss I ndictment (" Def .' ’s Mot.") [Docket Entry

10] at 10. Bec ause the District of Columbia has not y et implemented SORNA’s re g istration and notification re quirements, Cotton asserts that "he cannot possibly be subjec t to the Act’s constra ints." I d. Cotton’s argument "de pends on a c onstruction of SORNA that links the require ment imposed on the States to impl ement the r eg istration standards mandated by SORNA in a manner

that would have the re quirement imposed on individuals be depe ndent on the State’s implementation." Gould , 568 F.3d at 463. But SORNA’s languag e does not provide that linkag e. Cotton asserts that, under se ction 16913(d), Cong ress de leg ated to the Attorne y Gene ral the authority

to specify

the re troac tive applicability of SORNA to persons " (a) ' convicted be fore

26J uly

27, 2006,' (b) ' convicted be fore [S ORNA’s] implementation in a particular jurisdiction,' a

nd (c) ' unable' to initi ally

reg ister under

Section 16913(b) of

the Act." Def

.’s Mot. at 10. Ther efor e, defe ndant’s ar g ument continues, bec ause the Attorney Gene ral ha s not affirmatively specifie d the retroa ctivity

of SORNA to persons c onvicted bef ore SORNA’ s "implementation in a particular jurisdiction" or to those " unable" to initi ally reg ister, the Ac t does not y et apply to Cott on. I d. This is an attempt to rewr ite the statute. Cong ress de leg ated to the Attorne y Gene ral " the authority to specify

the applica

bility of the re quirements of this subcha pter to sex offende rs convicted be fore the ena ctment of this subchapte r or its implementation in a particula r jurisdiction." § 16913(d) . And this is jus t what the Attorne y Gene ral did: he e x pressly applied SORNA reg istration require ments "' to all sex offender s, including se x offe nders c onvicted of the offe nse for

which re g istration is required pr ior to the ena ctment of that Ac t.'" United States v. Ambert , 461 F.3d 1202, 1206 ( 11th Cir. 2009)(quoting 28 C.F .R. § 72.3)(empha sis added). The Attorney Gene ral’s r egulations clarify that SORNA applies re troac tively to sex offe nders, like Cotton, who were c onvicted bef ore SORNA’ s enac tment, and these r equire ments to reg ister ar e not "c onditioned on a State’s implementation of the A ct." See Gould 568 F. 3d a

t 464. The fina l SMART Guidelines, which the Attorney Gene ral issued on July

2, 2008, "pr ovide g uidance and assistanc e to the states a nd other jurisdictions in incorporating the SORNA require ments into their sex offe nder r eg istration and notification prog rams." 73 Fe d. Reg . at 38030. Cotton asserts that the SMART guide lines expl ain the duty to reg ister under SORNA only

afte r a jurisdiction implements SORNA: "sex offende rs in these [] populations . . . must be reg istered by

the jurisdiction when it implements the SORNA require ments in its sy stem." 72 F ed. Reg . at 30228. B ut Cott on’s ar g ument "f ails to apprec iate the distinction

27betwee n a jurisdiction’s duty to implement SOR

NA and a sex offender ’s duty

to reg ister." United States v. Br own , 586 F.3d 1342, 1348 ( 11th Cir. 2008). A sex offender ' s duty to reg ister under SORNA is not conting ent on a jurisdiction' s implementation of SORNA. See Gould , 568 F.3d at 465 (" [T] he re quirement imposed on individuals to reg ister is independe nt of the require ment imposed on the States to implement the enhanc ed re g istration and notification standards of

SORNA.") ; Hinckley

, 550 F.3d at 939 (reje cting defe ndant' s argument that it was impossibl e for

him to reg ister under

SORNA beca

use the state ha d not passed leg islation implementing SORNA); Dix on , 551 F.3d at 582 (same)

. The struc ture of SORNA' s require ments indicates that the se x offe nders' individual duty to reg ister and the State' s duty to enhanc e its reg istries and standar ds as mandate d by the Act a re separ ate. See Gould , 568 F.3d at 464. As the Attorney Gene ral' s SMART Guidelines ex plain, "[s]om e of the provisions in S ORNA ar e for mulated as directions to sex offende rs, including those appe aringin sections 113(a) -(b) . . . . Other SORNA pr ovisions are c ast as directions to jurisdictions . . . ." 73 F ed. Reg . at 38048 (e mphasis added) . Fur thermore , the SMART Guidelines " emphasize, with g reater pa rticularity , that ' SORNA applies to all sex offender s, including those convicted of their re g istration offense s prior to the ena ctment of SORNA or pr ior to particular

jurisdictions’ incorporation of the SORNA require ments into their prog rams.' " Gould , 568 F.3d at 465 (quoting 73 F ed. Reg . at 38063). " Acc ording ly , SORNA’s requir ement that a sex offende r re g ister applies whe ther re g istration would be ac complished throug h preSORNA reg istration fac iliti es or unde r SORNA-c omplaint prog rams." I d. at 465-66. Cotton’s duty to reg ister under

SORNA exi sted, then, whe ther or not D.C. ha d implemented SORNA’s enhanc ed re g istration and notification standar ds.

28e. Sex Offe nders " Unable" to "Initially Reg ister" Next, C otton argues that he is " unable" to "initially reg ister" under SORNA be cause his conviction pre -date s SORNA reg istration and notification re quirements under section 16913(b)

. Section 16913(b) state s that a sex offende r " shall initi ally reg ister (1) be fore completing a sentenc e of imprisonment with respe ct to the offe nse g iving r ise to the reg istration require ment; or (2) not later than 3 business da y s after beingsentenc ed for

that offe nse, if the se x offe nder is not sentence d to a term of imprisonment." Def endant' s argument continues as f ollows: due to his pre-SORNA c onviction and pre -SORNA re lease from prison, he is una ble to "initially reg ister" under 16913(b); section 16913(d) authorizes the Attorney Gene ral to spec ify

the "a pplicability

of the re quirements" of SORNA to "c ateg ories of se x offe nders who a re una ble to comply with subsection (b)" ; beca use the Attorne y

Gene ral ha s not y et def

ined the oblig ations of individuals li ke Cotton to "initially reg ister," as re quired by

16913(d), Cotton does not have a duty to reg ister under

SORNA. Def.’ s Mot. at 13-14. Cotton’s arg ument fails bec ause, a s a threshold matter , he does not fa ll within t he cate g ory of sex offende rs " unable" to "initially reg ister" descr ibed in section 16913(b)

. That section applies to sex offende rs who do not cur rently have any reg istration require ment: sex offe nders c urre ntly

in prison or y et to be sente nced. See id. I n contra st, Cott on is a sex offender with a cur rent re g istration obligation who must " reg ister, and ke ep [his] reg istration curre nt" under state and fe dera l law, cove red by the re g istration require ments descr ibed under sections 16913(a) and (c ). See May , 535 F.3d at 919. "A se x offe nder is able to reg ister under SORNA if he is able to re g ister by

means of a

n exis ting state reg istration fac ility ." Gould , 568 F.3d at 466;

see 73 Fe d. Reg . at 38063 (" J urisdictions are spe cifica lly require d to reg ister such sex offende rs 29if they

rema in in the [ state or other jurisdiction’s] sy stem as prisoner s, supervisee s, or reg istrants.") . Henc e, Cotton is "able" – indeed, he has a duty -- to re g ister and ke ep his reg istration curre nt under D.C. law, a nd he is there fore "a

ble" to reg ister under

SORNA.

II. Constitutional Argum ents

a. Non-De leg ation Cotton arg ues that Cong ress improper ly deleg ated its leg islative authority by allowing the Attorney Gene ral to dete rmine the re troac tive application of SORNA. De rived fr om Article I , Section Iof the Constituti on -- whic h states that " [a] ll legislative pow ers he rein g rante d shall be vested in a Cong ress of the United States which shall consist of a Senate a nd House of Represe ntatives," U.S. Const. art. I , § 1 -- " [t ]he non-deleg ation doctrine is base d on the principle of pre servingthe sepa

ration of powe rs betwe en the c oordinate br anche s of g overnme nt." Ambert , 561 F.3d at 1212. "[T]he doctrine holds that ' Congr ess manife stly is not permitted to abdicate or to transf

er to other s the essential leg islative functions with which it is [constit utionally ] vested.'" I d. at 1213 (quoting Panama Ref . Co. v. Ry an , 293 U.S. 388, 421 (1935))

. The Supreme Court established the test for deter mining the c onstitut ionality of a deleg ation of authority

by Congr ess to another

branc h of g overnme nt in J .W. Hampton, J r. & Co. v. United States , 276 U.S. 394 (1928). Cong ress may deleg ate a

uthority to the executive to promulg ate r

ules and c reate law only

when Cong ress provide s an " intelligible princ iple" to guide the deleg ated pa

rty
. See 276 U.S. at 409. A statute will survive a non- deleg ation challeng e and be " constitutionally

sufficie nt if Congr ess clea rly delineate s the g ener al policy , the public ag ency 30which is to apply it, and the boundar ies of this deleg ated a uthority ." Americ an Power & L ight Co. v. SEC , 329 U.S. 90, 105 (1946); see a lso Mistretta v. United States , 488 U.S. 361, 372-73 (1989). The intelligible princ iple can be broad. See, e.g

. , Whit man v. Amer ican Tr ucking Ass' ns , 531 U.S. 457, 475-76 (2001) ( upholding a g ainst a non-de leg ation challeng e a statute that g rante d the EPA broad disc retion to set national ambient a ir quality standards at levels " requisite to protect the public he alth") ; Yakus v. United States , 321 U.S. 414, 420 (1944) (upholdinga deleg ation to fix commodity price s that are "g ener ally fair a nd equitable a

nd will effe ctuate the purposes of this Ac t")

. Def endant a rgues that Cong ress fa iled to articulate any policy to guide the Attorney Gene ral on SORNA’s r etroa ctivity . Def .’s Mot. at 16. In g rantingthe Attorney Gene ral the " sole discretion" to determine w ho should be subject to SORNA, Cotton contends, "Cong ress ha nded the Attorney

Gene ral the pow er of

leg islating the br eadth of the Act." I d. To the contra ry , Congr ess’s dele g ation was " comforta bly within the scope of disc retion per mitted by [S upreme Court] prec edent." Ambert , 561 F.3d at 1213. SORNA’s statement of purpose , to "e stablish[ ] a compre hensive national sy stem" of sex offender

reg istration to protect the public fr om sex offe nders a

nd offe nders a g ainst children," 42 U.S.C. § 16901, provides an intelligible pr inciple to g uide the Attorne y

Gene ral in exercisinghis discretion. See United States v. Whaley , 577 F.3d 254, 264 (5th Cir. 2009) ; Ambert , 561 F.3d at 1213-14. " By setting f orth the broa d policy

g oal of protec ting the public a nd seekinga ' compre hensive' national re g istry , Congr ess has sug g ested that the Attorney

Gene ral should re quire pre -2006 sexual offende rs to reg ister to the extent that he dete rmines it would contribute to the protec tion of the public and the c omprehe nsiveness of a national sex offende r re g istry ." Ambert , 561 F.3d at 1214. 31Cotton also overstates the a uthority Congr ess deleg ated to the Attorne y Gene ral. F ar from " leg islating the br eadth of the Act," as Cotton contends, the authority deleg ated to the Attorney Gene ral is quite nar

row. Whaley , 577 F.3d at 264; Ambert , 561 F.3d at 1214. I ndeed, "Cong ress de fined the c rimes which ne cessitate r eg istration (42 U.S.C. § 16911); where the offe nder must re g ister (42 U.S.C. § 16913(a) ); the time period f or re g istration (42 U.S.C. § 16913(b)) ; the method of re g istration (42 U.S.C. § 16913(b),(c )); the nature of inf ormation that reg istrants must provide (42 U.S.C. § 16914(a)( 1)-( 7)); the e lements of the ne w fe dera l crime (18 U.S.C. § 2250(a)); a

nd the pena lty

for violation (18 U.S.C. § 2250(a) )." Ambert , 561 F.3d at 1214. Congr ess deleg ated to the attorney g ener al only

"the discretion to deter

mine whether

this statute and a ll of its attendant require ments articulate d by the leg islature apply

to a par ticular, cappe d class of of

fende rs - i.e. those convicte d prior to J uly 27, 2006." I d. at 1214. " [S ]i nce 1935, the Supreme Court ha s not struck down a sing le statute as a n impermissible deleg ation of leg islative power." I d. at 1213. This Court concludes that SORNA should not be the first. Congr ess’s dele g ation to the Attorney Gene ral to dete rmine the re troac tive applicability of SORNA is well within the lim its of permissible deleg ation. Henc e, Cotton’s non-deleg ation challeng e fa ils. b. Ex Post Facto Clause Cotton arg ues that SORNA violates the Ex Post Facto Clause, U.S. Const. art. I , § 9, cl. 3, which prohibits Congr ess from e nacting any law which " imposes a punishment for a n act which wa s not punishable at the time it was committed; or imposes additional punishment to that then pre scribed." Weaver v. Gra ham , 450 U.S. 24, 28-31 (1981); see Colli ns v. Youngblood , 497 U.S. 37, 41 (1990)(" [T] he constitutional prohibition on ex post facto laws applies only to penal 32statutes which disadva ntag e the of

fende r af fec ted by them.") . Cotton allege s that SORNA imposes an enha

nced pe nalty

that did not ex ist at the time he pled guilty to and was c onvicted of a sex offense in 1997. Def.’ s Mot. at 21. And Cotton contends that, despite SORNA’s stated intent as a c ivil and nonpunitive reg ime, the law is so punitive in its purpose and ef fec ts that it nonetheless violates the Ex Post Facto Clause. See id. at 21-22. I n Smit h v. Doe , 538 U.S. 84 (2003), the Supre me Court ruled that Ala ska’s sex offende r reg istration law did not constitute retroa ctive punishment under the Ex Post Facto Clause. The Smit h Court detailed the f rame work for

the ex post facto inquiry

for r etrospec tive laws. See 538 U.S. at 92-96. F irst, the Court must "asce rtain whe ther the le g islature mea nt the statute to establish ' civil' pr ocee dings" I d. at 92 (quoting Kansa s v. Hendric ks , 521 U.S. 346, 361 (1997)). I f the leg islature' s intent was to "impose punishment," the statute is unconstitutional, but i f the leg islature' s intent "wa s to enac t a re g ulatory scheme that is civil and nonpunitive," the c ourt then must further e x amine " whether the statutory

scheme is 'so punitive either in purpose or e ffe ct as to neg ate [the State' s] i ntention' to de em it 'c ivil.'" I d. (quoting United States v. Ward , 448 U.S. 242, 248-249 (1980) ). Ther e must be " ' the clea rest proof ' . . . to override leg islative intent and transfor m what has be en denominate d a civil re medy into a criminal pena lty ." I d. (quoting Hudson v. United States , 522 U.S. 93, 100 (1997)). Whether a statutory

scheme is civil or criminal " is first of all a que stion of statutory construction." I d. (quoting Hendr icks , 521 U.S. at 361.) Ther efor e, the Smit hCourt considere d the text and structure of the Alaska A ct. See id. at 92-93. The Alaska le g islature' s expressed intent in the statutory

text was to " protec t[ ] t he public fr om sex offe nders" and " [t ]he leg islature further deter mined that ' rele ase of

cer tain information about sex offende rs to the g ener al public

33will assist i n protec ting the public sa fety .' " I d. at 93 (c itation omit ted). The responde nts in

Smit h , who cha lleng ed the c onstitut ionality of the Ac t and asser

ted that its purpose wa s punitive, pointed out that the g oal of " public safe ty " is " one of the purposes of c riminal administration." I d. at 93. The Court disag ree d, and explained that " wher e a le g islative restriction ' is an incident of the States' power

to protect the he alth and saf ety of its citiz ens,' it will be considered ' as evidenc ing a

n intent to ex erc ise that regulatory power , and not a pur

pose to add to the punishment.'" I d. at 93-94 (quoting Flemming v. Nestor , 363 U.S. 603, 616 (1960)). Fur thermore , "e ven if the obje ctive of the Act is consistent with the purposes of the Alaska criminal justice sy stem, the State' s pursuit of it in a regulatory scheme does not make the object punitive." I d. at 94. Cotton contends that, unlike the statute in Smit h , SORNA' s statutory scheme "indicat[ es] . . . Congr ess’ intent to punish sex offender s, reg ardle ss of their risk to public safe ty " be cause Congr ess " made no f

inding that se x offe nders have a hig h risk of re -off ense." See Def

.’s Mot. at 24-25. Cotton also points out that SORNA vests the authority to promulgate re g ulations with the Attorney Gene ral, whose main responsibility is enforc ing c riminal laws. I d. at 25. B ut these differ ence s cannot c ounter Cong ress’s state d non-punitive intent. As in Smit h , the leg islature' s expressed intent in SORNA is publi c saf ety , "to pr otect the public f rom sex offender s and offe nders a g ainst children," 42 U.S.C. § 16901, and any criminal compone nts, including the r ole of the Attorne y

Gene ral or the criminal pena lty in section 2250, are parts of a larg er r egulatory scheme

. See Carr , 130 S. Ct . at 2240. Indeed, " [s] ection 2250 is not a stand-a lone re sponse to the problem of missing sex offender s; it i s embedde d in a broa der statutory scheme enac ted to addre ss the defic iencies in prior law that had e nabled se x offe nders to slip throug h the cr acks."

34I d. Simpl y "[i]nvoki ng the cr iminal process in aid of a statutory reg ime does not rende r the statutory scheme itself punitive." Smit h , 538 U.S. at 96. Henc e, bec ause Cong ress’s state d intent is non-punitive, Cot ton may only preva il if SORNA’s statutory scheme is "' so punitive either in purpose or ef

fec t as to neg ate [the State' s] i ntention' to de em it 'c ivil.'" I d. at 92 (citations omitted). To ana ly ze the eff ects of A laska’s se x offe nder r eg istration statute, the Smit hCourt ref err ed to the seve n fac tors noted in Kenne dy v. Mendoza-Mar

tinez , 372 U.S. 144, 168-69 (1963), a s "use ful g uideposts." See 538 U.S. at 97. The Mendoza-Mar tinez fac tors most rele vant to the Court’s ana ly sis were "whether , in its necessar y operation, the regulatory scheme : has bee n reg arde d in our history and tra ditions as a punishment; im poses an a ffirmative disability

or re straint; promotes the traditional aims of punishment; has a r ational conne ction to a nonpunitive purpose; or is excessive with re spect to this purpose." I d. The Smit hCourt ruled that eac h fac tor supported its decision that Alaska ’s sex offende r re g istration statute did not violate the Ex Post Facto Clause. I d. at 97-105. Indeed, " [o] ur sy stem does not treat dissemination of truthful information in further ance of a le g itimate gove rnment objec tive as punishment." I d. at 98. And " [a] lthough the public a vailability

of the infor

mation may

have a lasting a nd painful impact on the c onvicted sex offende r, these c onsequenc es flow not fr om the Act’s r eg istration and dissemination provisions, but from the fac t of conviction, alre ady a matter of public re cord." I d. at 101. Fina lly , the " ' most significa nt' f actor " in a

court’s " deter

mination that the statute’s e ffe cts are not punitive" is " [t ]he Act’s rational connec tion to a nonpunitive purpose." I d. at 102. The Smit h Court ruled that the sex offende r re g istration statue was

35rationally

connec ted to its stated purpose, " ' public safe ty , which is adva nced by aler ting the public to the risk of sex offende rs in their communit[y ].'" I d. at 103 (c itations omi tted). Attempting to distinguish Smit h , Cotton hi g hlights SORNA’s cr iminal penalty of up to ten y ear s for a

single violation and reg istration require ments that can inc lude multiple in-person repor ts per y ear . See Def

.’s Mot. at 27-28. SORNA’s pe nalty provision and re porting require ments may

be more onerous than the Alaska statute at issue in Smit h , but these differ ence s cannot e stablish by "c lear est proof" that SORNA' s overa ll regulatory scheme is punitive. See Smit h , 538 U.S. at 92. And on the " most significa nt" f actor -- " the Act’ s rational

connec tion to a nonpunitive pupose" - - SORNA is on all fours with the Alaska statute, with a stated purpose of " public safe ty ." I d. 538 U.S. at 103. Cotton m aintains that SORNA’s require ments are excessive, but this Court i s not to eng ag e in " an exerc ise in determiningwhether the leg islature has ma de the be st choice possible to addr ess the proble m it seeks to remedy ." See id. at 105. " The que stion is whether the re g ulatory means c hosen ar e re asonable in light of the nonpunitive objective." I d. at 105. Her e, SORNA mee ts this s tandar d and Cotton cannot by "c lear est proof" overr ide the stated intent of Cong ress. His ex post facto claim there fore fails. 1

c. Due Proc ess Clause Cotton asserts that the g overnme nt’s application of SORNA to him violates the Due Process Clause be cause he did not have a ctual notice of SORNA’s requir ements and the conduct criminalized by

SORNA was " wholly

passive" -- the " mere failure to reg ister." See L amber t v.
1 S o m e c o u r t s h a v e a d d r e s s e d e x p o s t f a c t o i s s u e s r a i s e d u n d e r S O R N A b y f o c u s i n g o n t h e c o n d u c t r e q u i r e d t o v i o l a t e S O R N A

. T h e s e c o u r t s h a v e r u l e d t h a t , a s a t h r e s h o l d m a t t e r , s e c t i o n 2 2 5 0 i s n o t “ r e t r o a c t i v e ” b e c a u s e i t p u n i s h e s a n i n d i v i d u a l , n o t f o r t h e s e x u a l o f

f e n s e c o m m i t t e d p r i o r t o t h e e n a c t m e n t o f S O R N A , b u t f o r t r a v e l i n g i n i n t e r s t a t e c o m m e r c e a n d f a i l i n g t o r e g i s t e r . S e e , e . g . , G o u l d , 5 6 8 F

. 3 d a t 4 6 6 ; U n i t e d S t a t e s v . L e T o u r n e a u , 5 3 4 F

. S u p p . 2 d 7 1 8 , 7 2 1 ( S

. D

. T e x . 2 0 0 8 ) ( c i t i n g c a s e s )

. T h e g o v e r n m e n t d o e s n o t a r g u e , a n d t h i s C o u r t n e e d n o t a d d r e s s , w h e t h e r S O R N A ’ s e n f o r c e m e n t s c h e m e i s r e t r o a c t i v e b e c a u s e - - e v e n i f i t i s r e t r o a c t i v e - - i t d o e s n o t v i o l a t e t h e E x P o s t F a c t o C l a u s e u n d e r S m i t h

. 36California , 355 U.S. 225, 228 (1957). In L amber t , the Court held that a statute r equiringa fe lon to reg ister with the City

of L os Ang eles without notice wa s inconsistent with due proce ss. I d. The Court re asoned that it was unconstitutional to puni sh L amber t for a c rime of omission beca use her obligation to reg ister was ba sed only on her status a s a fe lon, and she wa s unawa re of the re g istration require ments. I d. Cotton arg ues that, like L amber t, he did not rec eive notice reg ardinghis obligation to reg ister under SORNA. Def.’ s Mot. at 29. Furthe rmore, Cotton contends, the e nforc ement provision of SORNA re quires that a de fenda nt "knowing ly " f

ail to reg ister to violate SORNA. See 18 U.S.C. § 2250. L amber t is inapposite to the instant case. " Unlike an isolated c ity ordinanc e that re quires all members of

the broa d class of a ll felons to reg ister, SORNA instead cr iminaliz es the fa ilure to reg ister of a

much more na

rrowly targ eted c lass of per sons in a context where se x -off ender reg istration has bee n the law f or y ear s." Shenandoah , 595 F.3d at 160. Sex offe nders with

curr ent re g istration require ments, like Cotton, have notice of state reg istration require ments; there fore , they

are not passive par

ticipants unawa

re of the illeg ality

of fa iling to re g ister. See id

. Cotton had an aff

irmative duty

to reg ister under

state law; indee d, upon his relea se fr om prison, he sig ned a notice explaining his duty to reg ister. See Gov’t’s Opp. at 1-2. Fa ilure to reg ister under

SORNA does not fit into the narrowexception under L amber t that "ig noranc e of the law" excuses criminal ac tivity

. See L amber t , 355 U.S. at 228; Cheek v. United States , 498 U.S. 192, 199 (1991) (notingthat as a g ener al rule, ig noranc e of the law does not provide a de fense ). Courts have c onsistently held that a de fenda

nt's know ledg e of his or he r duty to reg ister as a

sex offender

pursuant to state lawsatisfies the knowledg e re quirement unde r SORNA. See, e.g

. , May , 535 F.3d at 921 (holding that notice of the duty to reg ister under

state 37law provide s notice of the duty to reg ister under

SORNA); Hinckley , 550 F.3d at 938 (same) ; United States v. Shenandoa h , 572 F. Supp. 2d 566, 580 (M.D. Pa. 2008) (citing case s), aff ' d , 595 F.3d 151 ( 3rd Cir. 2010). This Court ag ree s. Henc e, Cotton’s due proc ess ar g ument is rejec ted. d. Commerce Clause

L astly , Cotton arg ues that the pe nalty provision of SORNA, 18 U.S.C. § 2250, ex cee ds Congr ess' s authority

under the Commerce Clause . The Commerc e Clause of the U.S. Constit ution gives Cong ress the pow er “ [t ]o reg ulate commer ce w ith foreig n nations, and among the seve ral states, a nd with the I ndian tribes.” U .S. Const . art. I , § 8, cl. 3. The Supre me Court has identified thre e g ener al categ ories of a ctivity that Congr ess may

regulate under

the Commerce Clause : First, Cong ress may

regulate the use of the c hannels of inter state commer ce. Second, Cong ress is empowe red to re gulate and pr otect the instrumentalities of interstate c ommerce , or per sons or things in interstate commerc e, eve n though the threat may

come only

from intrastate activities. Fina lly , Congr ess' commerc e authority includes the powe r to regulate those a ctivities having a substantial relation to int erstate commerc e, i.e., those ac tiviti es that substantially aff ect interstate c ommerce . United States v. L opez , 514 U.S. 549, 558-59 (1995) ( citations omitt ed); see a lso Gonzales v. Raich , 545 U.S. 1, 16-17 (2005); United States v. Morrison , 529 U.S. 598, 608-09 (2000). Cotton contends that the enfor ceme nt provision of SORNA cannot be justified unde r the first two L opez prong s beca use it does not regulate the c hannels of inter state commer ce or

conce rn the re g ulation of persons or things in interstate commerc e. De f.’s Mot. at 29-30. There fore , the ar g ument g oes, it must be evaluate d under the third L opez prong , which per mits only the re g ulation of " those ac tiviti es that substantially aff ect inter state commer ce." L opez , 514

38U.S. at 558. Cotton asserts that a sex offende r re g istry is akin to regulation of domestic violence , which the Supre me Court has ruled la cks a substantial re lation to interstate commer ce. See Morrison , 529 U.S. at 612-13 (" Gende r-motivated c rimes of violenc e ar e not, in any sense of the phrase , economic a ctivity .")

. To the contra

ry , section 2250 fa lls squarely within the first two prong s of L opez beca use it applies only

to those failingto reg ister or update a r eg istration after trave ling in interstate

commerc e. Cong ress may forbid or punish the use of cha nnels of interstate commerc e " to promote immorality , dishonesty , or the spre ad of a ny evil or har

m to the people of othe r states from the state of orig in." Br ooks v. United States , 267 U.S. 432, 436 (1925); see Hea rt of Atlanta Motel, Inc. v. United States , 379 U.S. 241, 256 (1964) (" [T] he author ity of Cong ress to keep the channe ls of interstate c ommerce fre e fr om immoral and injurious uses has bee n fre quently

sustained, and is no long er ope n to question."). " Through § 2250, Congr ess has forbidden se x offe nders f rom using the channe ls of interstate c ommerce to evade their reg istration require ments." Whaley , 577 F.3d at 258. "[E]ven if [ the cour t] wer e to assume that the har ms and targ eted illeg al conduc t were purely local in nature , the use of the channels and instrumentaliti es of interstate commerc e is nec essar ily part of the commission of the targ eted offe nse under

18 U.S.C. § 2250." Ambert , 561 F.3d at 1211. This Court agr ees w ith the

sever al Circuits that have r uled “that § 2250 is a le g itimate exercise of c ong ressional Commerc e Clause authority .” United States v. Guzman , 591 F.3d 83, 90 ( 2nd Cir. 2010), cer t. denied , 130 S. Ct . 3487 (2010); acc ord United States v. Geor g e , 625 F.3d 1124, 1129- 30 (9th Cir. 2010); Whaley , 577 F.3d a

t 258; Gould , 586 F.3d at 470-72; Ambert , 561 F.3d at 1210; Dix on , 551 F.3d at 583-84; Hinckley , 550 F.3d at 940; May , 535 F.3d at 921-22.

39To the extent that Cott on also sug g ests that the re g istration scheme in § 16913 violates

the Commerce Clause, this Court disagr ees. Sec tion 16913 "may regulate pure ly

intrastate activities by

requiringsex offender s to reg ister in the first plac e and to ke ep cur rent in their reg istrations[ ;] [h] oweve r, § 16913 does not exist i n a vac uum." Guzman , 591 F.3d at 90. I t must be analy

zed in connection with § 2250, which a lso was ena cted a s part of the Adam Walsh Child P rotec tion and Safety Act of 2006, Pub. L . No. 109-248, 120 Stat. 587. See Whaley , 577 F.3d at 259. SORNA's g oal -- to " establish[] a compr ehensive national sy stem for the reg istration of [sex ] offender s," § 16901 - - " focuse s on the problem of se x offe nders e scaping their re g istration require ments throug h interstate tra vel [] rathe r than on re quiring sex offender reg istration ge nera lly ." I d. I ndeed, at the time that SORNA was ena cted in 2006, eve ry state and the District of Columbia alre ady had ena cted a

sex offender

reg istration law. I d. ; see also Guzman , 591 F.3d at 91. Congre ss enac ted SORNA to preve nt sex offe nders f rom eva ding “ all reg istration require ments just by moving to anothe r state.” Guzman , 591 F.3d at 91. Courts have thus upheld the r eg istration provision of SORNA under the N ece ssary and Proper Clause of

the Constitut ion, U.S. Const ., art. I , § 8, cl. 18. See, e.g

. , Guzman , 591 F.3d at 91; United States v. Howe ll , 552 F.3d 709, 717 ( 8th Cir. 2009) (" Section 16913 is constituti onal under Cong ress' s authority to use the nec essar

y and prope r mea

ns to further its commer ce c lause power beca use it ' is a nec essar

y part of a more g ener al re g ulation of interstate c ommerce .' ")

. "Wher e nec essar

y to make a r egulation of interstate c ommerce eff ective, Congress may

regulate even those intrastate a ctivities that do not themselves substantially aff ect inter state commer ce." Raich , 545 U.S. at 35 (Scalia, J., concurr ing) . "Re quiringsex offender s to update their reg istrations due to intrastate c hang es of a ddress or e mploy ment status is a perf

ectly logic al way

40to help ensure that states will more ef fec tively be able to track se x offe nders whe n they do cross state lines." Guzman , 591 F.3d at 91. And "to the e x tent that § 16913 regulates solely intrastate activity , its means ' are "r easona bly adapte d" to the attainment of a leg itimate end under the

commerc e powe r,' and ther efor e prope r." I d. (citations omitted); see a lso Whaley , 577 F.3d at 260-61; Ambert , 561 F .3d a t 1212; Howell , 552 F.3d at 714-15. Henc e, Cotton’s Commerce Clause cha lleng e fa ils.

CONCLUSION For the re asons explained above, the Court will deny Cotton’s mot ion to dism iss his indictment. A separ ate Or der a ccompa nies this memorandum opinion.

/s/ J OHN D. B ATES United States District J udg e Dated: J anuar

y 20, 2011

41