United States v. Dean

604 F.3d 1275 (11th Cir. 2010)


D asserts that the Attorney General (P) did not have good cause to promulgate a rulemaking SORNA retroactive without notice and comment as required by the Administrative Procedure Act. D was required to register as a sex offender. D traveled to Alabama sometime between July 2007 and August 2007 and failed to register as a sex offender there. D was arrested in Alabama for failing to register. D moved to dismiss his indictment arguing that SORNA was invalid under the Administrative Procedure Act, non-delegation doctrine, and Commerce Clause, Ex Post Facto Clause, and Due Process Clause of the Constitution. The court denied D's motion to dismiss. D then pled guilty to the charge, was sentenced to time served, and filed this timely appeal. SORNA mandated that all states maintain a sex offender registry and set a deadline for states to implement SORNA before July 27, 2009. On February 28, 2007, P promulgated an interim rule pursuant to § 16913(d) making SORNA retroactive to all sex offenders convicted prior to SORNA's enactment. 28 C.F.R. § 72.3 (2007). P invoked the 'good cause' exceptions of the Administrative Procedure Act at 5 U.S.C. §§ 553(b)(3)(B) and (d)(3) and did not have a pre-promulgation notice and comment period. P stated there needed to be 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 appeal resulted.