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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff, No. 08-CR-20534-DT

vs. Hon. Gerald E. Rosen

JOSE HERNANDEZ,

Defendant.

_______________________________/

OPINION AND ORDER DENYING DEFENDANT’S

MOTION TO DISMISS INDICTMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on May 18, 2009 

PRESENT: Honorable Gerald E. Rosen

 Chief Judge, United States District Court

I. INTRODUCTION

Defendant, Jose Hernandez, is charged in a one-count indictment for failure to

update his registration as a sex offender under the Sex Offender Registration and

Notification Act (“SORNA”), in violation of 18 U.S.C. § 2250. On January 6, 2009,

Defendant filed the instant Motion to Dismiss Indictment. The Government responded to

Defendant’s Motion. The Court heard the oral arguments of counsel on this matter on

March 23, 2009 and, at the close of the hearing, ordered the parties to submit

supplemental briefs by March 31, 2009. Counsel have complied with the Court’s order.

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 Defendant’s Brief In Support of Motion to Dismiss Indictment states that

Defendant’s girlfriend was fourteen years old. 

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Having reviewed and considered the parties briefs, the oral arguments of counsel,

and the Court’s entire record of this matter, the Court is now prepared to rule on

Defendant’s Motion. For the reasons set forth below, Defendant’s Motion to Dismiss his

Indictment will be denied.

II. FACTUAL BACKGROUND

In 1999, Defendant Jose Hernandez was convicted under Ohio law of Corruption

of a Minor in violation of Ohio Revised Code, § 2907.04. The conviction arose from a

sexual relationship between Hernandez, who was at the time 19 years old, and his then

13-year-old girlfriend.1

 that resulted in pregnancy and the birth of their child on February

5, 1999. When Hernandez attempted to sign the child’s birth certificate, the hospital

notified children’s services, and charges were filed against him.

On May 12, 1999, Hernandez pled guilty to, and was convicted of, corruption of a

minor, a misdemeanor in the first degree, in the Lucas County, Ohio Court of Common

Pleas. He was sentenced to two years of probation. As an additional consequence of his

conviction, Hernandez was classified as a “Sexually Oriented Offender,” pursuant to

Ohio law, and ordered to register as a sex offender under state law for a period of ten

years. As part of being a registered sex offender, Hernandez was required to regularly

verify his address with the Lucas County, Ohio Sheriff’s Department.

Defendant initially registered as a sex offender in Lucas County, Ohio, in 1999. 

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 According to the Government, Hernandez registered in Ohio in March 2007 but

failed to register in 2008. Apparently, it was not until he applied for state assistance in

Michigan in February 2008 that it was discovered that Hernandez had moved to Michigan

some time after August 2007. He never registered as a sex offender any time during the

time he resided in the State of Michigan.

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However, he failed to register and/or verify his address in 2000, 2001, 2002, 2004, 2006,

and 2008. Moreover, Defendant was prosecuted twice in Ohio -- in 2004 and 2006 -- for

failure to verify his address, which resulted in terms of imprisonment of 60 days and eight

months, respectively. 

The present indictment for failure to register as a sex offender in violation of 18

U.S.C. § 2250(a), stems from Defendant’s failure to register or verify his address after he

moved to Michigan from Ohio in August 2007.2

18 U.S.C. § 2250(a) provides:

(a) In general. -- Whoever --

(1) is required to register under the Sex Offender Registration

and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex

Offender Registration and Notification Act by reason of a

conviction under Federal law (including the Uniform Code of

Military Justice), the law of the District of Columbia, Indian

tribal law, or the law of any territory or possession of the

United States; or

(B) travels in interstate or foreign commerce, or enters or

leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as

required by the Sex Offender Registration and Notification

Act;

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shall be fined under this title or imprisoned not more than 10 years, or both.

Defendant now moves to dismiss the Indictment raising a number of theories. 

Specifically, Hernandez argues that

(1) he was not required to register as a sex offender under the SORNA;

(2) prosecuting him under 18 U.S.C. § 2250 violates the Ex Post Facto Clause;

(3) Congress’ delegation of authority to the Attorney General violates the

Separation of Powers;

(4) the Attorney General’s Interim Rule violates the Administrative Procedures

Act;

(5) 18 U.S.C. § 2250 violates the Commerce Clause;

(6) the failure of SORNA to provide a mechanism to challenge a person’s

designation or registration as a sex offender violates due process;

(7) Hernandez has no duty to register because no jurisdiction has implemented

SORNA;

(8) SORNA violates the Tenth Amendment of the Constitution.

III. DISCUSSION

A. THE SEX OFFENDER REGISTRATION AND NOTIFICATION ACT

On July 27, 2006, President Bush signed into law the Adam Walsh Act Child

Protection and Safety Act of 2006 (the “AWA”). Title I of the AWA, entitled the Sex

Offender Registration and Notification Act (“SORNA”), created a national sex offender

registration law. 42 U.S.C. § 16901-62. In relevant part, SORNA requires persons who

are “sex offenders,” as defined under the Act, to register and maintain current information

in each jurisdiction (a) where the offender was convicted, (b) where the offender resides,

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(c) where the offender is employed and/or attends school, and (d) requires that the

offender register prior to his release from prison, or no later than three business days after

any change in residence, employment or student status. 42 U.S.C. §§ 16911, 16913(a)-

(c). The SORNA also requires that each state establish an internet website, publishing

information about sex offenders registered in its jurisdiction. Id. § 16918.

The SORNA also establishes a “National Sex Offender Public Website” to be

maintained by the Attorney General, which shall include “relevant information for each

sex offender and other person listed on a jurisdiction’s website,” and make “relevant

information” publicly accessible. Id. § 16920. It also requires that each state include in

the design of its own website all field search capabilities needed for full participation in

the national website. Id. § 16918.

Finally, the AWA created a new federal crime for persons who are required to

register under the SORNA but fail to do so. 18 U.S.C. § 2250. With regard to the new

crime, Congress delegated to the Attorney General the authority to determine whether the

SORNA is applicable to persons convicted of qualifying offenses before July 27, 2006,

the date of the statute’s enactment, as well as to those who were convicted “before. . . its

implementation in a particular jurisdiction.” 42 U.S.C. § 16913(d). Congress also

delegated to the Attorney General the authority to promulgate regulations to ensure that

those persons, and anyone who cannot receive notice of their SORNA registration duties

(because they already served their incarceration terms), be notified of their duties and are

registered. Id. §§ 16913(b), (d), 16917(a), (b). The SORNA requires all states, the

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District of Columbia, and several federally recognized jurisdictions to “substantially

implement” the SORNA requirements by July 27, 2009. Id. §§ 16924(a)(1), 16925(a).

On February 28, 2007, the Attorney General promulgated an interim rule which

was given immediate effect, applying the SORNA to all persons convicted of a qualifying

sex offense at any time, including offenders whose convictions occurred prior to the

enactment of the statute. 28 C.F.R. § 72.3.

B. DEFENDANT’S ARGUMENTS FOR DISMISSAL OF THE

INDICTMENT 

1. Applicability of SORNA to Defendant.

Defendant’s first argument for the dismissal of the indictment is that he was not

legally required to register as a sex offender under SORNA between October 2006 and

2008. He claims that, absent the promulgation of regulations by the Attorney General

providing him with notice of his duties to register and specifying the means for doing so,

he was not required to register under SORNA. Defendant further argues that the Interim

Rule promulgated by the Attorney General in February 2007 does not provide a

mechanism nor any procedures for state jurisdictions to inform those convicted preSORNA with notice of their SORNA registration obligations. He further argues that even

the recently released Sex Offender Sentencing, Monitoring, Apprehending, Registering

and Tracking (“SMART”) Guidelines fail to provide the means and mechanisms to give

persons in Defendant’s position notice of their SORNA registration obligations. 

Moreover, Defendant argues that no states have “substantially implemented” SORNA. 

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(Defendant’s Motion to Dismiss Indictment at ¶ 8). Therefore, Defendant argues that

SORNA’s registration requirements should not apply to him because there are no

procedures in place to notify him of his registration obligation, and neither Michigan nor

Ohio had substantially implemented SORNA at the time he is alleged to have committed

the charged violation of § 2250(a).

With regard to his arguments, Defendant cites the following excerpt from the

SMART Guidelines:

With respect to sex offenders with pre-SORNA or pre-SORNAimplementation convictions who remain in the prisoner, supervision, or

registered sex offender populations at the time of implementation. . .

jurisdictions should endeavor to register them in conformity with SORNA

as quickly as possible, including fully instructing them about the SORNA

requirements, obtaining signed acknowledgment of such instructions, and

obtaining and entering into the registry all information about them required

under SORNA. But this may entail newly registering or re-registering a

large number of sex offenders in the existing sex offender population, and it

may not be feasible for a jurisdiction to do so immediately. Jurisdictions

are accordingly authorized to phase in SORNA registration for such sex

offenders in conformity with the appearance schedule of SORNA § 116. In

other words, sex offenders in these existing sex offender populations who

cannot be registered within the normal SORNA time frame (i.e., before

release from imprisonment or within three business days of sentencing for

the registration offense) must be registered by the jurisdiction when it

implements the SORNA requirements in its system within a year for sex

offenders who satisfy the tier I criteria, within six months for sex offenders

who satisfy the tier II criteria, and within three months for sex offenders

who satisfy the tier III criteria. . . .

73 Fed. Reg. 38030-01, 38063-38064.

Nothing in the foregoing excerpt supports Defendant’s claim that he had no duty to

register because the states of his residence had not yet fully implemented SORNA. 

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In fact, these same Guidelines explicitly provide:

The applicability of the SORNA requirements is not limited to sex

offenders whose predicate sex offense convictions occur following a

jurisdiction’s implementation of a conforming registration program. Rather,

SORNA’s requirements took effect when SORNA was enacted on July 27,

2006, and they have applied since that time to all sex offenders, including

those whose convictions predate SORNA’s enactment.

73 Fed. Reg. 38030-01, 38046. See also, p. 38063:

As discussed in Part II. C of these Guidelines, SORNA applies to all sex

offenders, including those convicted of their registration offenses prior to

the enactment of SORNA or prior to particular jurisdictions’ incorporation

of the SORNA requirements into their programs.

Id.

Given that the Guidelines expressly state that SORNA applies to sex offenders

convicted “prior to particular jurisdictions’ incorporation of the SORNA requirements

into their programs,” the Court rejects Defendant’s argument that SORNA does not apply

in a particular state until that state has passed implementing legislation. Moreover, courts

addressing this issue have overwhelmingly held that SORNA is effective and applicable

prior to state implementation of SORNA requirements. See e.g., United States v. Benton,

___ F. Supp. 2d ___, 2008 WL 5273971 (S.D. Ohio 2008); United States v. Trent, 568 F.

Supp. 2d 857, 865-66 (S.D. Ohio 2008); United States v. Ditomasso, 552 F. Supp. 2d 233,

238-239 (D.R.I. 2008); United States v. Shenandoah, 572 F. Supp. 2d 566, 578-79

(M.D.Pa. 2008); United States v. Gould, 526 F. Supp. 2d 538, 542 (D. Md. 2007); United

States v. Robinson, 2008 WL 3895597 at *2-3 (E.D. Va. 2008).

The Court also rejects Defendant’s argument that he cannot be prosecuted for

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violating § 2250(a) because he was not obligated to register until informed of the

obligation by the Attorney General. The vast majority of courts to have addressed this

issue have held that when the defendant in a prosecution for violating § 2250(a) was

notified by state authorities of his obligation to register as a sex offender under state law,

lack of notice of SORNA registration requirements is not a defense to that prosecution. 

See e.g., United States v. Trent, supra, 568 F. Supp. at 866-67; United States v.

LeTourneau, 534 F. Supp. 2d 718, 722 (S.D. Tex. 2008); United States v. Lovejoy, 516 F.

Supp. 2d 1032, 1037 (D.N.D. 2007); United States v. Gould, supra; United States v.

Adkins, 2007 WL 4335457 (N.D. Ind. 2007); United States v. Marcantonio, 2007 WL

2230773 (W.D. Ark. 2007).

Defendant here was obviously made aware of his obligation to register under state

law. He, in fact, did register in Lucas County, Ohio in May 1999. He failed to register

for the next two years -- 2000 and 2001-- despite letters from the Lucas County Sheriff’s

Department directing him to do so. He registered again in August 2003, but failed to

register in 2004 and was prosecuted and sentenced to 60 days’ incarceration for his

failure. He registered in October 2005, but did not register in 2006 and was again

prosecuted and sentenced, this time to a term of incarceration of 8 months. He registered

in March of 2007, but did not register any time thereafter. The foregoing facts

demonstrate that Defendant had been notified of his obligation to register as a sex

offender under state law. Accordingly, the Court rejects Hernandez’s premise that this

prosecution must be dismissed because he was not notified of his obligation to register

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under SORNA.

2. Defendant’s Ex Post Facto Claim

Defendant next argues that the retroactive effect SORNA has on his pre-SORNA

conviction violates the Constitution’s ban against ex post facto laws. U.S. CONST. art. I,

§9, cl. 3. Specifically, Defendant contends that SORNA retroactively increases the

potential penalty for failing to maintain his sex offender registration from a misdemeanor

to a felony. Since the increased penalty was not known or contemplated by Defendant at

the time of his conviction, he argues that SORNA is an unconstitutional ex post facto law

as applied to him.

Presumably Defendant’s argument is predicated upon the Lyncher Act, 40 U.S.C.

§ 14072(i), effective October 21, 1998, which made it a federal crime for a person

convicted of a criminal sexual offense against a minor who is required to register as a sex

offender in his home state to fail to register as a sex offender in any other state in which

the offender relocated or was employed. 40 U.S.C. § 14072(i). While a violation of the

Lyncher Act carried a maximum penalty of ten years imprisonment, for a first time

offender (such as Defendant), the penalty was a term of imprisonment of not more than

one year. Id. 

 In Collins v. Youngblood, 497 U.S. 37, (1990), the Supreme Court explained that a

statute contravenes the Ex Post Facto Clause if it “punishes as a crime an act previously

committed, which was innocent when done; [if it] makes more burdensome the

punishment for a crime, after its commission[;] or [if it] deprives one charged with [a]

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crime of any defense available according to law at the time when the act was committed.” 

Id. at 41-43.

To determine whether the retroactive application of a statute violates the Ex Post

Facto Clause, a court must first decide whether the statute is civil or criminal in nature. 

Kansas v. Hendricks, 521 U.S. 346, 361 (1997); Smith v. Doe, 438 U.S. 84, 89-90 (2003). 

If Congress intended SORNA to impose punishment for a pre-existing crime, the statute

violates the Ex Post Facto Clause. See Smith, 538 U.S. at 92. Conversely, if Congress

intended via the statute to “enact a regulatory scheme that is civil and non-punitive, [the

court] must further examine whether the statutory scheme is ‘so punitive either in purpose

of effect as to negate [Congress’s] intention’ to deem it ‘civil.’” Id.; see also, United

States v. May, 535 F.3d 912, 919-20 ((8th Cir. 2008); United States v. Lawrance, 548

F.3d 1329, 1333 (10th Cir. 2008) (quoting Kansas v. Kendricks, supra, and United States

v. Ward, 448 U.S. 232, 248-49 (1980)). The courts normally defer to Congress’s stated

intent, and therefore, “only the clearest proof will suffice to override legislative intent and

transform what has been denominated a civil remedy into a criminal penalty.” Kendricks,

supra. Thus, the starting point for the Court in determining whether SORNA’s statutory

scheme is punitive or regulatory, the Court must first determine whether Congress

“indicated either expressly or impliedly a preference for one label or the other.” Smith,

538 U.S. at 93.

SORNA is both civil in its stated intent and nonpunitive in its purpose. Congress

expressly declared its intent to create a “comprehensive national system for the

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registration” of sex offenders, “[i]n order to protect the public from sex offenders and

offenders against children, and in response to the vicious attacks by violent predators.” 

42 U.S.C. § 16901. Every circuit to have addressed an ex post facto challenge to SORNA

has concluded that the statutory scheme is a non-punitive, regulatory scheme, and does

not impose punishment for pre-existing crimes. See United States v. Lawrance, supra,

548 F.3d 1329, 1332-1336 (10th Cir. 2008); United States v. May, 535 F.3d 912, 919-920

(8th Cir. 2008); United States v. Ambert, 561 F.3d 1202, 1207-08 (11th Cir. 2009); United

States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2008); United States v. Samuels, 2009 WL

877698 (6th Cir., Apr 2, 2009) (unpublished decision).

The Supreme Court upheld the constitutionality of a state sex offender registration

law very similar to SORNA after analyzing it under the Ex Post Facto Clause in Smith v.

Doe, supra. Like SORNA, the Alaska sex offender registration statute at issue in Smith

required respondents to register as sex offenders, even though they had been convicted

before the statute was enacted. Smith, 538 U.S. at 91. The Act in Smith, like SORNA,

also subjected non-compliant sex offenders to criminal prosecution. Id. Nevertheless, the

Court concluded that the purpose of the act was not to impose punishment but to “enact a

regulatory scheme that is civil and nonpunitive.” Id. at 92. The Court applied the twopart test, analyzing whether the legislature’s intent was to create a civil, nonpunitive

scheme and, if so, whether the effects of the legislation were so punitive to negate that

intent. Id. at 94-95. The Smith court found that the Alaska legislature’s intent had been

to create a nonpunitive law because it had included language specifically stating that

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intent. Id. Next, the Court determined that the net effect of the law did not override that

intent, even though the statute called for criminal action against violators because it had a

rational connection to a nonpunitive purpose; namely, protecting public safety “which is

advanced by alerting the public to the risk of sex offenders in their community.” Id.

(internal quotations omitted).

Many courts have relied on Smith in rejecting ex post facto challenges to § 2250

indictments. See e.g., United States v. May, supra,; United States v. Hinckley, 550 F.3d

926, 937 (10th Cir. 2008); United States v. Hann, 574 F. Supp. 2d 827, 836-37 (M.D.

Tenn. 2008); United States v. Gill, 520 F. Supp. 2d 1341, 1344-45 (D. Utah 2007). 

Defendant Hernandez nonetheless attempts to distinguish the statutory scheme in

Smith, arguing that, unlike Smith, the placement of SORNA’s failure to register

provisions appear in the federal criminal code. First of all, Defendant is mistaken with

regard to the placement of the Alaska statute. The registration provisions in Smith were

actually codified in Alaska’s criminal procedure code. See Alaska Stat. § 12.63.010

(2000) (amended 2008); Smith, 538 U.S. at 94; United States v. Lawrance, supra, 548

F.3d at 1233. Furthermore, the Supreme Court expressly rejected the argument that “[t]he

partial codification of the Act in the State’s criminal procedure code” supported “a

conclusion that the legislative intent was punitive.” Smith, 538 U.S. at 95; Lawrance, 548

F.3d at 1334.

Moreover, as the circuit courts have observed, the only punishment that can arise

under SORNA comes from a violation of § 2250, which punishes convicted sex offenders

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who travel in interstate commerce after the enactment of SORNA and who fail to register

as required by SORNA. The elements of § 2250 are: (1) being a sex offender, (2)

traveling in interstate commerce, and (3) failing to register or update a registration. As

the Eighth Circuit observed in United States v. May, “[a]lthough [Defendant] became a

sex offender by way of a conviction before enactment of SORNA, the first element

merely identifies to whom the statute applies; it is not a triggering event.” 535 F.3d at

920. See also United States v. Samuels, 2009 WL 877698 at **5-6 (6th Cir., Apr. 2,

2009). In Samuels the Sixth Circuit adopted the May court’s reasoning, and found no ex

post facto violation:

Samuels traveled in interstate commerce after the enactment of SORNA and

failed to update his registration in New York and to register in

Kentucky. . . . It is this behavior that is being punished. Samuels is not

being punished for his initial 1999 rape conviction. Accordingly, Samuel’s

[ex post facto] argument is without merit.

Id. See also, United States v. Lawrance, supra, 548 F.3d at 1333 (SORNA does not

punish an offender for “pre-SORNA conduct; instead it penalizes him for his postSORNA failure to register.”). 

Simply stated, Section 2250 is not an ex post facto law because it does not

criminalize or increase the penalties for a defendant’s act that occurred before its passage. 

The only thing it penalizes is failing to register or update a registration after July 27,

2006.

For all of the foregoing reasons, the Court rejects Defendant Hernandez’s ex post

facto argument.

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3. Congress’s Delegation of Authority to the Attorney General

Defendant also argues that the Court must dismiss his indictment because

Congress violated the non-delegation doctrine by delegating to the Attorney General the

authority to determine the retroactive effect of SORNA. In particular, Defendant

challenges § 16913(d), which provides, in relevant part,

The Attorney General shall have the authority to specify the applicability of

the requirements of this subchapter to sex offenders convicted before July

27, 2006 or its implementation in a particular jurisdiction, and to prescribe

rules for the registration of any such sex offenders and for other categories

of sex offenders who are unable to comply with subsection (b) of this

section.

The non-delegation doctrine is an aspect of the separation of powers. Mistretta v.

United States, 488 U.S. 361, 371 (1989). Under the non-delegation doctrine, Congress

“is not permitted to abdicate or to transfer to others the essential legislative functions with

which it is vested.” Panama Refining Co. v. Ryan, 293 U.S. 388, 421 (1935). In

Mistretta, the Court explained the governing test for determining the constitutionality of a

delegation of authority by Congress to another branch of government:

We... have recognized...that the separation-of-powers principle, and the

nondelegation doctrine in particular, do not prevent Congress from

obtaining the assistance of its coordinate Branches. In a passage now

enshrined in our jurisprudence, Chief Justice Taft, writing for the Court,

explained our approach to such cooperative ventures: “In determining what

[Congress] may do in seeking assistance from another branch, the extent

and character of that assistance must be fixed according to common sense

and the inherent necessities of the government co-ordination.” J.W.

Hampton Jr., & Co v. United States, 276 U.S. 394, 48 S.Ct. 348, 72 L.Ed.

624 (1928). So long as Congress “shall lay down by legislative act an

intelligible principle to which the person or body authorized to [exercise the

delegated authority] is directed to conform, such legislative action is not a

forbidden delegation of legislative power.” Id. at 409, 48 S.Ct. at 352.

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488 U.S. at 372.

Since the promulgation of the Hampton test, the Court has clarified the meaning of

“intelligible principle” and has upheld statutes against non-delegation challenges finding

that it is “constitutionally sufficient if Congress clearly delineates the general policy, the

public agency which is to apply it, and the boundaries of this delegated authority.” 

American Power and Light Co. v. Securities and Exchange Commission, 326 U.S. 90, 105

(1946); Mistretta v. United States, supra, 488 U.S. at 372-73. Indeed, since 1935, the

Supreme Court has not struck down a single statue as an impermissible delegation of

legislative power. See United States v. Ambert, 561 F.3d 1202, 1213 (11th Cir. 2009).

The defendant in Ambert, like Defendant Hernandez, argued that Congress

improperly delegated its legislative authority by allowing the Attorney General to

determine the retroactive application of SORNA. Applying Hampton and Mistretta, and

their progeny, the Eleventh Circuit found no merit in Ambert’s challenge:

We are satisfied that Congress has provided the Attorney General

with “intelligible principles” in the Sex Offender Registration and

Notification Act. Congress has undeniably provided the Attorney General

with a policy framework in § 16901 to guide his exercise of discretion

under § 16913(d); and it has made a series of legislative judgments in §§

16911, 16913, 16914 and 2250 that constrict the Attorney General’s

discretion to a narrow and defined category.

In the first place, Congress has broadly set policy goals that guide

the Attorney General in how to apply his discretion. Congress created

SORNA with the specific design to prove the broadest possible protection

to the public, and to children in particular, from sex offenders. Section

16901 expressly sets forth the congressional purpose in these terms: “In

order to protect the public from sex offenders and offenders against children

and in response to the vicious attacks by violent predators against the

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victims listed below, Congress in this chapter establishes a comprehensive

national system for the registration of those offenders.” 42 U.S.C. § 16901. 

By setting forth the broad policy goal of protecting the public and seeking a

“comprehensive” national registry, Congress has suggested that the

Attorney General should require-pre-2006 sexual offenders to register to the

extent he determines it would contribute to the protection of the public and

the comprehensiveness of a national sex offender registry.

* * *

In the second place, Congress made virtually every legislative

determination in enacting SORNA, which has the effect of constricting the

Attorney General’s discretion to a narrow and defined category. Thus, for

example, Congress defined the crimes which necessitate registration (42

U.S.C. § 16911); where the offender must register (42 U.S.C. § 16913(a));

the time period for registration (42 U.S.C. § 16913(b)); the method of

registration (42 U.S.C. § 16913(b), (c)); the nature of information that

registrants must provide (42 U.S.C. § 16914(a)(1)-(7)); the elements of the

new federal crime (18 U.S.C. § 2250(a)); and the penalty for violation (18

U.S.C. § 2250(a)). These legislative determinations, read in pari materia

with § 16913(d), have informed the delegation to the Attorney General in a

sufficiently clear way. The Attorney General is left only with the discretion

to determine whether this statute and all of its attendant requirements

articulated by the legislature apply to a particular, capped class of offenders

-- i.e., those convicted prior to July 27, 2006. Congress has unambiguously

delineated its general policy, the public agency which is to apply it, and the

boundaries of the delegated authority.

Id. at 1213-15. See also United States v. Hann, 574 F. Supp.2d 827, 837 (M.D. Tenn.

2008) (“When § 16913 is read as a whole, it is clear that the statute only authorizes the

Attorney General to promulgate regulations in a limited number of circumstances. The

Attorney General’s authority under § 16913(d) extends only to those currently

unregistered offenders literally unable to comply with (b) because of the age of their

convictions. This delegation is limited in nature and does not afford the Attorney General

the authority to legislate.” Id. (citations and internal punctuation omitted.))

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This Court agrees with the reasoning of the Ambert and Mann courts.

Indeed, all courts to have addressed this issue have concluded that Congress did

not violate the non-delegation doctrine by its delegation of authority with respect to

SORNA to the Attorney General. See e.g., United States v. Dixon, 551 F.3d 578, 583-84

(7th Cir. 2008); United States v. Howell, 2008 WL 313200 (N.D. Iowa 2008), aff’d, 552

F.3d 709 (8th Cir. 2009); United States v. Trent, 568 F. Supp.2d 857, 869-70 (S.D. Ohio

2008); United States v. LeTourneau, 534 F. Supp. 2d 718, 724-25 (S.D. Tex. 2008);

United States v. Gill, 530 F. Supp. 2d 1341, 1349 (D. Utah 2007); United States v.

Cochran, 2008 WL 2185427 (E.D. Okla. 2008); United States v. David, 2008 WL

2045830 (W.D.N.C. 2008). This Court finds the result reached by these courts to be

persuasive and similarly concludes that Congress did not violate the non-delegation

doctrine by authorizing the Attorney General to determine the retroactive effect of

SORNA.

4. The Interim Rule’s Compliance with Administrative Procedures Act

Defendant further attacks the applicability of the SORNA registration

requirements to pre-SORNA convictions by arguing that the Attorney General’s Interim

Rule, 28 C.F.R. §72.3, which set forth retroactive registration requirements for preSORNA convictions, violated the Administrative Procedures Act (“APA”), 5 U.S.C. §

553. The APA requires that all rules must either comply with a 30-day notice and

comment period or have “good cause” to forego the notice and comment period. 5 U.S.C.

§ 533. The Attorney General did not provide the usual 30-day notice and comment

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period for 28 C.F.R. § 72.3, but enacted the Interim Rule effective immediately under the

“good cause” exception.

The APA permits agencies to enact rules without the 30-day notice and comment

period for “good cause” where “notice and public procedure thereon are impracticable,

unnecessary, or contrary to the public interest.” 5 U.S.C. § 553(b)(3)(B). The Justice

Department did comply with the APA requirement of incorporating the finding of good

cause and a summary of the good cause justification within the interim rule. Id. 

Specifically, the Justice Department included the following language in the interim rule:

The immediate effectiveness of this rule is necessary to eliminate any

possible uncertainty about the applicability of the Act’s requirements -- and

related means of enforcement, including criminal liability under 18 U.S.C. §

2250 for sex offenders who knowingly fail to register as required -- to sex

offenders whose predicate convictions predate the enactment of SORNA.

Delay in the implementation of this rule would impede the effective

registration of such sex offenders and would impair immediate efforts to

protect the public from sex offenders who fail to register through

prosecution and the imposition of criminal sanctions. The resulting practical

dangers include the commission of additional sexual assaults and child

sexual abuse or exploitation offenses by sex offenders that could have been

prevented had local authorities and the community been aware of their

presence, in addition to greater difficulty in apprehending perpetrators who

have not been registered and tracked as provided by SORNA. This would

thwart the legislative objective of “protect[ing] the public from sex

offenders and offenders against children” by establishing “a comprehensive

national system for the registration of those offenders,” SORNA § 102,

because a substantial class of sex offenders could evade the Act’s

registration requirements and enforcement mechanisms during the pendency

of a proposed rule and delay in the effectiveness of a final rule.

SORNA Interim Rule, 72 Fed. Reg. 8894.

Defendant argues that the reasons articulated by the Justice Department are legally

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insufficient to justify a “good cause” exception to enable the Justice Department to avoid

the notice and comment requirement. Citing Buschmann v. Schweiker, 676 F.2d 352, 357

(9th Cir. 1982), Defendant contends that the “good cause” exception is an “emergency

procedure” and should only be allowed when “delay would do real harm.” Defendant’s

argument is not supported by the applicable case law.

Numerous courts addressing the merits of APA violation claims have unanimously

decided that the SORNA Interim Rule does not violate the APA. See e.g., United States

v. Shenandoah, 572 F. Supp. 2d 566, 589-90 (M.D.Pa. 2008); United States v. Vasquez,

576 F. Supp. 2d 928, 940-41 (N.D. Ill. 2008); United States v. Torres, 573 F. Supp. 2d

925, 948-50 (W.D. Tex. 2008); United States v. Gould, 526 F. Supp. 2d 538, 546 (D. Md.

2008); United States v. Keleher, 2008 WL 5054116, **16-17 (E.D. Cal. 2008); United

States v. Robinson, 2008 WL 4086474, *9 (S.D. Ga.2008); United States v. David, supra,

2008 WL 2045827 at * 8. See also United States v. Dixon, 551 F.3d 578, 583 (7th Cir.

2008) (rejecting defendant’s claim that SORNA violates the APA out of hand as “a

frivolous argument.”) The Court joins these courts and finds that the Attorney General’s

explicit rationale demonstrates good cause for enacting the regulations without notice or

comment, namely, to prevent a delay in implementation that could jeopardize the safety

of the public and thwart the purposes of the Act. Accordingly, the Court will deny

Defendant’s motion to dismiss to the extent that it asserts an APA challenge.

5. SORNA’s Constitutionality Under the Commerce Clause

Hernandez next argues that SORNA and its failure to register provisions violate

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21

the Commerce Clause, and, therefore, his indictment for violating 18 U.S.C. § 2250

should be dismissed. Specifically, Defendant claims that his conduct is purely intrastate

because it concerns only his failure to register, which he claims has no effect on interstate

commerce. As discussed above, SORNA makes it a crime for any sex offender who

“travels in interstate or foreign commerce” to “knowingly fail [] to register or update a

registration as required by [SORNA].” 18 U.S.C. § 2250(a). Such sex offenders are

required to “register, and keep the registration current, in each jurisdiction where the

offender resides, where the offender is an employee, and where the offender is a student.” 

42 U.S.C. § 16913(a). While Hernandez’s failure to update and/or register took place in

Michigan, he does not dispute that he traveled in interstate commerce between Ohio and

Michigan in August 2007.

The Supreme Court has identified three areas that Congress may regulate under the

Commerce Clause: (1) “the use of the channels of interstate commerce;” (2) “the

instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come from intrastate activities;” and (3) “those activities that

substantially affect interstate commerce.” United States v. Lopez, 514 U.S. 549, 558

(1995); see also United States v. Morrison, 529 U.S. 598, 608-09 (2000); Gonzales v.

Raich, 545 U.S. 1, 16 (2005). Defendant Hernandez argues that SORNA’s registration

requirements have no connection to the “channels of interstate commerce” or “persons or

things in interstate commerce,” and, therefore, cannot be upheld under either of the first

two prongs of Lopez. Thus, Defendant maintains that SORNA’s registration

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 Defendant appears to have overlooked the fact that the Southern District of

Florida’s Myers decision was abrogated by the Eleventh Circuit’s decision in Ambert.

22

requirements can only be upheld if they are determined to regulate “activities that

substantially affect interstate commerce.” However, according to Defendant, because

SORNA does not purport to regulate “any sort of economic enterprise,” it cannot be

upheld under this third Lopez prong, either.

Defendant’s discussion of Commerce Clause jurisprudence ignores the numerous

courts that have found sufficient congressional authority for enacting SORNA and its

penalty provisions under all three Lopez categories. In fact, every circuit court -- and

virtually every district court -- to have faced a Commerce Clause challenge to SORNA

has rejected it. See e.g., United States v. May, 535 F.3d 912, 921-22 (8th Cir. 2008);

United States v. Hinckley, 550 F.3d 926, 939-40 (10th Cir. 2008); United States v. Dixon,

551 F.3d 578, 583 (7th Cir. 2008); United States v. Ambert, 561 F.3d 1202, 1210-12 (11th

Cir. 2009); United States v. Hardeman, 598 F. Supp. 2d 1040, 1042-1047 (N.D. Cal.

2009); United States v. Torres, 572 F. Supp. 2d 925 (W.D. Tex. 2008); United States v.

Shenandoah, 572 F. Supp. 2d 566 (M.D. Pa. 2008) (and cases cited therein). Defendant,

instead, relies upon the very few district court cases, United States v. Guzman, 582 F.

Supp. 2d 305 (N.D.N.Y. 2008), app. pending, No. 08-5561 (2d Cir. 2008); United States

v. Hall, 577 F. Supp. 2d 610 (N.D.N.Y. 2008), app. pending, No. 08-6004 (2d Cir. 2008);

United States v. Waybright, 561 F. Supp. 2d 1154 (D. Mont. 2009), app. pending, No. 08-

30260 (9th Cir. 2008); United States v. Myers, 591 F. Supp. 2d 1312 (S.D. Fla. 2008),3

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and United States v. Valverde, 08-000187 (E.D. Cal., Feb. 10, 2009), app. pending, No.

09-10063 (9th Cir. 2009), holding otherwise.

With regard to the first two Lopez categories -- the channels and instrumentalities

of commerce -- as the Eleventh Circuit recently explained in United States v. Ambert,

Plainly, congressional power to regulate the channels and instrumentalities

of commerce includes the power to prohibit their use for harmful purposes,

even if the targeted harm itself occurs outside the flow of commerce and is

purely local in nature. . . . Congress has repeatedly used this power to reach

criminal conduct in which the illegal acts ultimately occur intrastate, when

the perpetrator uses the channels or instrumentalities of commerce to

facilitate their commission. . . . These channels of commerce are the

interstate transportation routes through which persons or goods move. 

These channels include highways, railroads, navigable waters, and airspace. 

. . . It [i]s the [defendant’s] movement in interstate commerce, rather than

the nature of the harm, that [i]s the linchpin of the analysis.

Id. at 1211 (citations and internal punctuation omitted).

Applying the foregoing standards, the Ambert court determined that Section 2250

of SORNA withstood Commerce Clause scrutiny and rejected the defendant’s argument

for dismissal of his indictment:

Section 2250 of SORNA easily meets these standards. Section 2250

makes it a federal crime to fail to register as required under 42 U.S.C. §

16913 only where the offender “travels in interstate or foreign commerce,”

or was convicted of a federal sex offense. Thus, even if we were to assume

that the harms and targeted illegal conduct was purely local in nature, the

use of the channels and instrumentalities of interstate commerce is

necessarily a part of the commission of the targeted offense under 18 U.S.C.

§ 2250. Plainly, § 2250 focuses on sex offenders, like the defendant who

travel in interstate commerce. . . . SORNA does no more than employ

Congress’ lawful commerce power to prohibit the use of channels or

instrumentalities of commerce for harmful purposes. Moreover, as we

made it clear in [United States v.] Ballinger, [395 F.3d 1218 (11th Cir.

2005) (en banc)], “[i]nstrumentalities of interstate commerce. . . are the

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people and things themselves moving in commerce.” [Citation omitted.] 

Thus, when a sex offender travels from one state to another, he is an

instrumentality of interstate commerce, and by regulating these persons in

SORNA, Congress has acted under its commerce clause power to regulate

an instrumentality.

Id. (emphasis in original; some internal citations and punctuation omitted.)

In United States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008), the Tenth Circuit

similarly rejected the defendant’s argument that his failure to register did not

“substantially affect” interstate commerce under the third prong as discussed in Lopez,

and that the application of SORNA to his case, therefore, violated the Commerce Clause. 

The court explained:

Whether such an activity has a substantial effect on interstate commerce is

irrelevant, since the first and second prongs of Lopez confirm Congress’s

authority to regulate this type of activity. . . . Elaborating on Congress’s

regulatory power, the Supreme Court has held that Congress can certainly

regulate interstate commerce to the extent of forbidding and punishing the

use of such commerce as an agency to promote immorality, dishonesty or

the spread of any evil or harm to the people of other states from the state of

origin. In doing so, Congress may regulate not conduct related to interstate

commerce but rather interstate commerce itself -- barring from the channels

of interstate commerce a class of goods or people. Thus, Congress’s

authority to regulate is not limited to regulations with a narrowly economic

purpose or impact, but rather the Commerce Clause allows Congress to

keep the channels of interstate commerce free from immoral and injurious

uses. In fact, the first prong, and even the second prong of Lopez focuses

on statutes that prevent the use of interstate commerce that results in harm

to the populations of states other than those where such harm originates.

Mr. Lawrance relies on United States v. Morrison, 529 U.S. 598, 120

S.Ct. 1740, 146 L.Ed.2d 658 (2000), Lopez and Jones v. United States, 529

U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), which examine statutes

in which Congress attempted to prohibit purely intrastate activity via the

third category of Lopez -- the “substantially affects” prong; however,

SORNA clearly intends to regulate interstate activities, i.e., the evasion of

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sex offenders who have crossed jurisdictional lines. Mr. Lawrance failed to

keep his registration current in Arizona, did not register in Colorado, and

then traveled in interstate commerce to Oklahoma after SORNA’s July 27,

2006, effective date, evading his registration requirements yet again in

Oklahoma. With SORNA, Congress clearly and validly proscribed such

evasive tactics by offenders who move across state lines, and we must reject

Mr. Lawrance’s arguments to the contrary.

548 F.3d at 1337 (emphasis in original; some internal citations and punctuation omitted). 

See also United States v. Hinckley, supra. Noting that a violation of Section 2250

comprises two elements -- post-SORNA failure to register coupled with interstate travel -

- the court found that “[n]ot only was Mr. Hinckley a ‘person...in interstate commerce,’

but he also used the channels of interstate commerce on a daily basis. Clearly his travel

across state lines to and from Oklahoma falls under the first or second Lopez prongs. 

Whether such an activity has a substantial effect on interstate commerce is irrelevant,

since the first and second prongs of Lopez confirm Congress’s authority to regulate this

type of activity.” 550 F.3d at 940.

The Eighth Circuit also rejected the defendant’s Commerce Clause argument in

United States v. May, 535 F.3d 912 (8th Cir. 2008). As the Tenth and Eleventh Circuits

found, the Eighth Circuit determined that “May was undeniably a ‘person. . . in interstate

commerce’ in that he traveled and relocated between various states. . . . May did so via

the ‘use of the channels of interstate commerce.’” Id. at 921. Therefore, the court found

that SORNA derived its authority from both the first and second Lopez prong. The May

court then went on to analyze -- and ultimately reject -- the defendant’s argument that his

indictment pursuant to SORNA was substantially similar to the defendants’ indictments

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under the statutes at issue in Lopez and Morrison, which the Supreme Court found to

violate the Commerce Clause:

May attempts to argue his case is more akin to Lopez, in which the

Supreme Court struck down the Gun-Free School Zones Act, and United

States v. Morrison, in which the Supreme Court struck down the Violence

Against Women Act (VAWA). Lopez and Morrison are distinguishable in

two significant respects.

First, the Gun-Free School Zones Act and the VAWA did not

contain a jurisdictional “hook” -- or “jurisdictional element establishing that

the federal cause of action is in pursuance of Congress’ power to regulate

interstate commerce.” Congress’s addition of such a jurisdictional “hook”

in the Gun-Free School Zones Act proved sufficient to validate the revised

Gun-Free School Zones Act. SORNA includes an express and clear

jurisdictional element for individuals not convicted pursuant to federal

jurisdiction. See § 2250(a)(2)(B).

Second, Lopez and Morrison related to the third Lopez prong: “a

regulation of activity that substantially affects interstate commerce.” 

SORNA is more easily supported by the first and second Lopez prongs. 

Thus, we need not address May’s contention “SORNA was not

accompanied by findings [that the activity in question exerted a “substantial

influence on interstate commerce”] similar to those in support of the

[Controlled Substances Act] regulation considered [and upheld] in

[Gonzales v.] Raich [545 U.S. 1 (2005)]. Even if this argument effectively

distinguished Raich, and the third Lopez prong, SORNA would still remain

valid under the first two interstate commerce jurisdictional prongs.

Id. at 922 (citations and some internal punctuation omitted).

The Court finds the reasoning of the above courts persuasive. In enacting

SORNA, Congress’s aim was to create a uniform nationwide registration system to

protect the public. SORNA clearly intends to regulate interstate activities, i.e., the

evasion of sex offenders who have crossed jurisdictional lines. By requiring that a sex

offender travel in interstate commerce before finding a registration violation, SORNA

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remains well within the constitutional boundaries of the Commerce Clause pursuant to the

first and second prongs of Lopez. Therefore, Defendant’s “no substantial economic

effect” on interstate commerce (and the lack of any “economic enterprise”) arguments are

irrelevant.

Defendant also appears to be arguing that even if the Court finds 18 U.S.C. §

2250(a) constitutional under the Commerce Clause by virtue of the interstate travel

element, the predicate statute setting forth the registration requirements, 42 U.S.C. §

16913, contains no such “travel in interstate commerce” requirement. Because the

registration requirements apply to persons whose criminal activities were purely intrastate

and who never traveled in interstate commerce, Defendant contends that the Court must

find the entire SORNA scheme unconstitutional.

Defendant apparently ignores the fact that Congress has the ability “[t]o make all

Laws which shall be necessary and proper” for the accomplishment of its Commerce

Clause power. U.S. Const. art. I, § 8, cl. 28. In the seminal case of McCulloch v.

Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), the Supreme Court articulated the

meaning of the Necessary and Proper Clause: “Let the end be legitimate, let it be within

the scope of the constitution, and all means which are appropriate, which are plainly

adapted to that end, which are not prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” Under this power, Congress may regulate intrastate

activity so long as the means employed by Congress are “reasonably adapted” to the

attainment of a legitimate end under the commerce power. See United States v. Darby,

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312 U.S. 100, 121 (1941) (“[Legislation has often been sustained. . . when the means

chosen, although not themselves within the granted power, [are] nevertheless deemed

appropriate aids to the accomplishment of some purpose within an admitted power of the

national government.” Id.) As Darby makes clear, a law simply must be deemed a

rational and appropriate means to further Congress’s regulation of interstate commerce. 

Id.

The Supreme Court has recognized Congress’s ability to regulate intrastate,

noneconomic activity that does not have a substantial effect on interstate commerce

pursuant to the Necessary and Proper Clause.

[T]he authority to enact laws necessary and proper for the regulation

of interstate commerce is not limited to laws governing intrastate activities

that have a substantial effect on interstate commerce. Where necessary to

make a regulation of interstate commerce effective, Congress may regulate

even those activities that do not themselves substantially affect interstate

commerce.

* * *

The regulation of an intrastate activity may be essential to a

comprehensive regulation of interstate commerce even though the intrastate

activity does not itself “substantially affect” interstate commerce. 

Moreover, . . . Congress may regulate even noneconomic local activity if

that regulation is a necessary part of a more general regulation of interstate

commerce. The relevant question is simply whether the means chosen are

“reasonably adapted” to the attainment of a legitimate end under the

commerce power.

Gonzales v. Raich, 545 U.S. 1, 35-37 (Scalia, J. concurring) (internal citations omitted).

Guided by these principles, courts have concluded that § 16913 of SORNA is

constitutional, even though, on its face, § 16913 does not have a jurisdictional “hook” to

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fit under the first two prongs of Lopez and there is little evidence to show intrastate sex

offender registration substantially affects interstate commerce. See, e.g., United States v.

Howell, 552 F.3d 709, 714-17 (8th Cir. 2009); United States v. Ambert, supra, 561 F.3d at

1211-12.

In Howell, the Eighth Circuit discussed in detail the necessity and appropriateness

of SORNA’s registration requirements and their furtherance of Congress’s commerce

clause power:

When § 16913 is analyzed in relation to the purpose of SORNA, it is

evident § 16913 is an “appropriate aid[ ] to the accomplishment” of tracking

the interstate movement of sex offenders. See Darby, 312 U.S. at 121, 61

S.Ct. 451. The requirements of § 16913 help establish a system by which

the government can monitor the location and travels of sex offenders.

Although § 16913 may reach a wholly intrastate sex offender for registry

information, § 16913 is a reasonable means to track those offenders if they

move across state lines. In order to monitor the interstate movement of sex

offenders, the government must know both where the offender has moved

and where the offender originated. Without knowing an offender’s initial

location, there is nothing to ensure the government would know if the sex

offender moved. The registration requirements are reasonably adapted to

the legitimate end of regulating “‘persons or things in interstate commerce’”

and “‘the use of the channels of interstate commerce.’” May, 535 F.3d at

921 (quoting Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624). Covering the

registration of wholly intrastate sex offenders is merely incidental to

Congress’s tracking of sex offenders in interstate commerce. Therefore, §

16913 is constitutional under Congress’s authority to use the necessary and

proper means to further its commerce clause power because it “is a

necessary part of a more general regulation of interstate commerce.”

Gonzales, 545 U.S. at 37, 125 S.Ct. 2195 (Scalia, J., concurring).

552 F.3d at 717.

Finding the Howell court’s reasoning persuasive, the Eleventh Circuit in Ambert

synthesized the “necessary and proper” principles as they apply to SORNA follows:

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As the Eighth Circuit recognized, in enacting § 16913 of SORNA,

Congress did not focus on individual local registration as an end in itself,

but rather as part of its goal to create a system to track and regulate the

movement of sex offenders from one jurisdiction to another. Indeed,

SORNA’s introductory language makes it clear that SORNA was designed

to create an interstate system to counteract the danger posed by sex

offenders who slip through the cracks or exploit a weak state registration

system by traveling or moving to another state without registering therein. 

Specifically, Congress has said that the purpose of the statute is “to protect

the public from sex offenders and offenders against children” by

“establish[ing] a comprehensive national system for the registration of those

offenders.” 42 U.S.C. § 16901 (emphasis added).

The jurisdictional wording of § 16913 similarly focuses on the

movement of sex offenders across state borders and ensuring registration of

offenders moving in this manner. Section 16913 requires sex offenders to

register and keep their registration current, “in each jurisdiction where the

offender resides, where the offender is an employee, and where the offender

is a student”; requires a new or changed registration “in at least 1

jurisdiction” within three days of a change in the above status; and requires

that jurisdiction to “immediately provide that information to all other

jurisdictions” where the offender must register a change. 42 U.S.C. §

16913(a), (c). Finally, an examination of § 16913 and § 2250 makes the

interstate focus abundantly clear. Notably, § 16913 does not contain a

federal enforcement provision against individuals who fail to register

locally. The only federal enforcement provision against individuals is found

in § 2250, which explicitly subjects state sex offenders to federal

prosecution under SORNA only if they “travel in interstate or foreign

commerce” and fail to register under § 16913. 18 U.S.C. § 2250(2)(b).

Section 16913 is reasonably adapted to the attainment of a legitimate

end under the commerce clause. The requirement that sex offenders register

under § 16913 is necessary to track those offenders who move from

jurisdiction to jurisdiction.

561 F.3d at 1211-12 (some citations omitted).

This Court finds the Eighth Circuit’s and Eleventh Circuit’s reasoning persuasive

and joins those courts in upholding the constitutionality of § 16913. Section 16913 is

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constitutional under Congress’s authority to use the necessary and proper means to further

its commerce clause power because it is a necessary part of a more general regulation of

interstate commerce. Defendant’s Motion to Dismiss based on violation of the

Commerce Clause, therefore, will be denied.

6. Due Process Considerations: Substantive and Procedural

Defendant also argues that SORNA violates his due process rights (1) because the

statute provides no mechanism to challenge the registration or sex offender designation

process; (2) because he did not receive personal notice regarding his duty to register

under SORNA; and (3) because SORNA has not been implemented by any state,

including Ohio, he did not receive statutory notice.

Defendants’ second and third due process arguments are merely a rehashing of his

first statutory arguments which this Court has already rejected. See Section III-B-1,

supra, and cases cited therein. See also United States v. Hinckley, 550 F.3d 926, 938

(10th Cir. 2008) (a “majority of courts have concluded that notice of a defendant’s

obligations under state law is sufficient to satisfy the Due Process Clause’s

requirements”); United States v. Gould, 536 F. Supp. 2d at 545 n. 8 (collecting cases).

With regard to Hernandez’s remaining argument that SORNA provides no

mechanism for him to challenge his registration or sex offender designation, the Supreme

Court has held that when a registry requirement is based on the fact of a previous

conviction (as opposed to the fact of current dangerousness), due process does not require

that the sex offender be afforded a hearing. See Connecticut Dept. of Public Safety v.

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Doe, 538 U.S. 1 (2003). Under SORNA all sex offenders are required to register; there is

no provision requiring that the offender be found to be dangerous to trigger his

registration requirement. Therefore, the Act does not violate procedural due process. See

United States v, Madera, 474 F. Supp.2d 1257, 1264 (M.D. Fla. 2007), rev’d on other

grounds, 528 F.3d 852 (11th Cir. 2008).

Defendant also raises a substantive due process argument. This substantive

component of the Due Process Clause protects fundamental rights that are so “implicit in

the concept of ordered liberty” that “neither liberty nor justice would exist if they were

sacrificed.” See Palko v. Connecticut, 302 U.S. 319, 325, 326, 58 S.Ct. 149, 152 (1937).

Fundamental rights protected by substantive due process are protected from certain state

actions regardless of the procedures the state uses. See Washington v. Glucksberg, 521

U.S. 702, 721, 117 S.Ct. 2258, 2268 (1997). When legislation is enacted that infringes

fundamental rights, courts will review the law under a strict scrutiny test and uphold it

only when it is “narrowly tailored to serve a compelling state interest.” Reno v. Flores,

507 U.S. 292, 302, 113 S.Ct. 1439, 1447(1993). The Supreme Court has recognized that

fundamental rights include those guaranteed by the Bill of Rights as well as certain

“liberty” and privacy interests implicit in the due process clause and the penumbra of

constitutional rights. See Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267; Paul v. Davis,

424 U.S. 693, 712-13, 96 S.Ct. 1155, 1166 (1976). These special “liberty” interests

include such rights as the rights to marry, to have children, to direct the education and

upbringing of one’s children and to marital privacy. Glucksberg, 521 U.S. at 720, 117

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S.Ct. at 2267. The Supreme Court, however, has been very reluctant to expand

substantive due process by recognizing new fundamental rights, explaining:

[We] have always been reluctant to expand the concept of substantive due

process because guideposts for responsible decisionmaking in this

unchartered area are scarce and open-ended. By extending constitutional

protection to an asserted right or liberty interest, we, to a great extent, place

the matter outside the arena of public debate and legislative action. We

must therefore exercise the utmost care whenever we are asked to break

new ground in this field, lest the liberty protected by the Due Process

Clause be subtly transformed into the policy preferences of the members of

this Court.

Glucksberg, 521 U.S. at 720, 117 S.Ct. at 2267-68 (citations and some internal

punctuation omitted).

Defendant here argues a deprivation of his liberty interest. Although the Supreme

Court has recognized fundamental rights in regard to some special liberty and privacy

interests, it has not created a broad category where any alleged infringement on privacy

and liberty will be subject to substantive due process protection. See Paul, 424 U.S. at

713, 96 S.Ct. at 1166. The circuit courts that have considered substantive due process

arguments regarding sex offender registries have upheld such registration and publication

requirements finding no fundamental right implicated and no constitutional infirmities.

See, e.g., Doe v. Tandeske, 361 F.3d 594, 597 (9th Cir.) (per curiam), cert. denied, 543

U.S. 817 (2004) (“Persons who have been convicted of serious sex offenses do not have a

fundamental right to be free from . . . registration and notification requirements . . . .”);

Doe v. Moore, 410 F.3d 1337, 1344-46 (11th Cir.), cert. denied, 540 U.S. 1124 (2005);

Gunderson v. Hvass, 339 F.3d 639, 643 (8th Cir. 2003), cert. denied, 540 U.S. 1124

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(2004); Paul P. v. Verniero, 170 F.3d at 404, 405 (3d Cir. 1999). See also United States

v. Madera, supra (“The Act [SORNA] does not violate substantive due process because it

does not infringe upon any fundamental right.”)

When a statute does not implicate fundamental rights, we must ask whether it is

“rationally related to legitimate government interests.” Glucksberg, 521 U.S. at 728, 117

S.Ct. at 2271. The rational basis standard is “‘highly deferential’ and we hold legislative

acts unconstitutional under a rational basis standard in only the most exceptional

circumstances.” Doe v. Moore, supra (quoting Williams v. Pryor, 240 F.3d 944, 948 (11th

Cir.2001)) SORNA meets the rational basis test because it is in the interest of

government to protect the public from sex offenders, and knowing where offenders live

enables the public to assess the risk and take protective measures as appropriate. Doe v.

Moore at 1345. Therefore, Defendant’s substantive due process claim is without merit.

7. SORNA and Federalism

Defendant continues his constitutional attack against SORNA by alleging that the

act “impermissibly encroaches upon state power,” in violation of the Tenth Amendment

to the United States Constitution. [Defendant’s Brief in Support of Motion to Dismiss, p.

19]. Defendant cites In re Rahrer, 140 U.S. 545, 554 (1891) for the proposition that the

federal government may not enact laws that impedes the states’ authority to regulate its

citizenry through powers traditionally belonging to the state. Defendant also cites Kansas

v. Mugler, 123 U.S. 623 (1897), to highlight the federalist principle that “police power” is

retained by the states to control their “internal affairs” and, in so doing, “protect the

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 See 42 U.S.C. § 16925 (states not in compliance “shall not receive 10 percent of

the funds that would otherwise be allocated for that fiscal year to the jurisdiction under

[the Edward Byrne Memorial Justice Assistance Grant Program, 42 U.S.C. § 3750 et

seq].”)

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health, morals and safety of their people. . . .” Id. at 659.

Defendant states that SORNA violates the Tenth Amendment because the federal

statute requires all states to create and maintain registries that must be “substantially

implemented” by July 27, 2009. 42 U.S.C. § 16925(a). However, Defendant’s use of the

word “requires” in his description of the statutory mandate is misleading because states

have the option of not implementing or creating SORNA compliant registries. Id. The

statutory language of § 16925(a) clearly and unambiguously articulates a choice to not

comply with SORNA, in which a noncompliant state merely loses a percentage of federal

funding for its failure to comply.4

Defendant also alleges that SORNA is an impermissible intrusion of federal

authority into state sovereignty because the implementation of SORNA would require

states to shoulder the burden of securing the additional economic and financial resources

necessary to create and maintain the registries. Defendant cites Printz v. United States,

521 U.S. 898 (1997), in support of his contention that SORNA is an unconstitutional

violation of federalism. In Printz, the Supreme Court held that a federal law requiring

state and local police officials to perform background checks on all potential handgun

purchasers was unconstitutional. Id. at 933. Specifically the Court held, “[t]he Federal

Government may neither issue directives requiring the States to address particular

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problems, nor command the States’ officers, or those of their political subdivisions, to

administer or enforce a federal regulatory program.” Id. at 935. Defendant argues, that

the state officials who would be charged with implementing and maintaining the registries

are “analogous” to the officials in Printz and cannot be constitutionally be commandeered

to operate a federal regulatory program. However, Defendant misses a key distinction

between the two regulatory programs: in Printz state officials were mandated to enforce

the program and their compliance was required; whereas, under SORNA compliance is

merely a condition to receiving a percentage of federal funding. 

The distinction overlooked by Defendant is critical in constitutional analysis

because the Supreme Court has consistently held that Congress may place conditions of

compliance upon the receipt or withholding of federal funds. South Dakota v. Dole, 483

U.S. 203, 206-07 (1987); New York v. United States, 505 U.S.144, 145 (1992). 

Congress’s power under the spending power is much broader than, and is not limited to,

the specific authorities enumerated to Congress in Article I. United States v. Butler, 297

U.S. 1, 65 (1936). In Dole, the Court articulated that Congress’s power to condition the

receipt of federal funds under the spending power shall be valid, so long as the

conditional spending/withholding is: (1) in the pursuit of “the general welfare;” (2) the

conditional nature of the spending/withholding is clear and unambiguous; (3) the

condition is rationally related to the purpose of the federal interest, program, or funding;

and (4) the conduct required to comply with the condition is not barred by the constitution

itself. South Dakota v. Dole, 483 U.S. 203, 207-08 (1987).

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Under the Spending Power Clause, Congress has the power to “provide for the

common Defense and general Welfare of the United States.” U.S. Const. Art. I § 8, cl. 1. 

The Supreme Court in Butler held that the phrase “general welfare” should be liberally

construed to allow Congress the latitude necessary to determine what is required to

promote the general welfare of the country. Butler, 297 U.S. at 64-65. Moreover, the

Supreme Court in Dole held that “courts should defer substantially to the judgment of

Congress.” Dole, 483 U.S. at 207.

Congress has conditioned a 10% reduction in federal grants under the Edward

Byrne Memorial Justice Assistance Grant Program to states that do not substantially

comply with SORNA. 42 U.S.C. § 16925. Congress determined that a national registry

of sex offenders would promote the general welfare of the country by protecting potential

victims of sexual crimes. Therefore, Congress clearly acted within its power to condition

federal funds on SORNA compliance in pursuing the general welfare of the United States. 

The Court must next determine whether Congress’s conditional withholding of

federal funds to non-SORNA compliant states is clear and unambiguous. Dole, 483 U.S.

at 207. The Supreme Court in Penhurst State Sch. and Hosp. v. Halderman, 451 U.S. 1

(1981) held that Congress must “speak with a clear voice, [to] enable the States to

exercise their choice knowingly, cognizant of the consequences of their participation [or

lack thereof].” Id. at 17. The statutory language of SORNA states that “a jurisdiction

that fails. . . to substantially implement this subchapter shall not receive 10 percent of the

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funds that would otherwise be allocated for that fiscal year to the jurisdiction. . . .” 42

U.S.C. § 16925. Congress unambiguously informed states in the statutory text that if

they were not SORNA-compliant, they would suffer the consequences of forfeiting a

percentage of federal funding. Therefore, Congress satisfied the requirement of making

the conditional nature of the withholding unambiguous, and states knew of their option to

comply with SORNA or forfeit federal funds. 

Pursuant to Dole, the next step to evaluate the constitutionality of Congress’s

exercise of conditional funding is to consider the relationship between the “federal

interest in particular national projects or programs” and the conditions placed on federal

funds. Dole, 483 U.S. at 207-08. The nexus required between the program and condition

is not a topic that has received neither extensive discussion nor clarification by the

Supreme Court. Id. at 207. Essentially, the conditions placed on federal funds must be

related to the purpose of the federal program. Id. at 207-08 (quoting Massachusetts v.

United States, 435 U.S. 444, 461 (1978)). The condition placed on the receipt of federal

funds under SORNA is substantial compliance with registration requirements. 

Specifically, the 10 percent reduction of funds to states for failure to comply with

SORNA is only applied to funds that are available under the Edward Byrne Memorial

Justice Assistance Grant Program (“Justice Assistance Grants”), 42 U.S.C. § 3750 et seq. 

The Justice Assistance Grants are designed “for use by the State or unit of local

government to provide additional personnel, equipment, supplies, contractual support,

training, technical assistance, and information systems for criminal justice.” 42 U.S.C. §

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3751. Given the purpose of encouraging SORNA compliance and Justice Assistance

Grants, the relationship between the condition and the withholding of federal funds

cannot be deemed unrelated. 

Lastly, for a congressional condition on the disbursement of federal funds to be

valid there must not be a “independent constitutional bar” that prevents the conduct

required by the condition. Dole, 483 U.S. 208. The Supreme Court in Dole explained that

an “independent constitutional bar” merely prevents Congress from conditioning funds on

behavior that the constitution prohibits the states from engaging in on their own. Id. 

Moreover, the requirement is not to be construed to mean that Congress can only

condition funds in areas and subjects enumerated in Article I. Id. The actions required

to create and maintain a SORNA compliant registry are not barred by the Constitution

and fall within the states’ police power granted by the Constitution. 

Therefore, SORNA does not violate the Tenth Amendment or the principles of

federalism. 

CONCLUSION

For all of the reasons set forth above in this Opinion and Order,

IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss his Indictment

[Dkt. # 12] is DENIED.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: May 18, 2009

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I hereby certify that a copy of the foregoing document was served upon counsel of record

on May 18, 2009, by electronic and/or ordinary mail.

s/Ruth Brissaud 

Case Manager

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