Court Rejects Numerous Challenges to SORNA Conviction

US v. Gould: Gould was convicted of a sex offense in DC in 1985. After his release he moved several times in the states surrounding the District. He finally settled in Maryland in August 2006. He did not register as a sex offender, as required by state law. In July 2007, Gould was charged federally with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"). He moved to dismiss the indictment on various grounds, but the district court declined to do so. He entered a conditional plea and was sentenced to 24 months in prison.

On appeal, the Fourth Circuit affirmed Gould's conviction, rejected several of the arguments he had raised below.

First, Gould had argued that SORNA could not be applied to him because, at the time of his indictment, Maryland had not yet updated its sex offender registration procedure to conform with SORNA requirements. In other words, because he could not register in the way SORNA set forth, he could not be convicted for failing to do so. The court concluded otherwise, holding that the criminal provisions of SORNA are separate and apart from the spending/state mandate provisions of SORNA that requires action from the states. Maryland had a means for registration and Gould's failure to avail himself of it was sufficient. For similar reasons, Gould's ex post facto claim was also rejected.

Second, Gould argued that he could not comply with SORNA's registration requirement because it requires registration before completion of a sentence, which he completed in 2002, prior to SORNA's passage. The court noted that this argument "bootstraps on his first argument" due to Maryland's failure to come up to SORNA standards with its registration scheme. Regardless, because Maryland law required Gould to register when he came to the state, SORNA applied to him. The court also noted that Gould was aware of his general duty to register, as he had done so in other states before he moved to Maryland. He was not in the (very small) category of offenders who wasn't required to register with anybody until SORNA's passage.

Third, Gould argued that it could not be proven that he "knowingly" failed to comply with SORNA registration requirements because the Government never notified him of those requirements, as the law requires. However, the court held that the word "knowingly" modifies "fails to register" and thus relates to the Maryland state requirement that he register, not SORNA's specific requirements. Conviction under SORNA does not require knowing that a failure to register violates federal law.

Fourth, Gould argued that the interim regulations promulgated by the Attorney General clarifying that SORNA applied to defendants convicted before it was enacted violated the Administrative Procedures Act. The regulation was enacted without notice and without the required 30-day waiting notice. The court concluded that the AG had good cause to do so, given the "need for legal certainty about SORNA's 'retroactive' application . . ." Delay "could reasonably be found to put the public safety at greater risk."

Finally, Gould argued that SORNA exceeded the scope of Congressional power under the Commerce Clause. The court noted that one of the elements of a SORNA offense is that the defendant "must travel in interstate commerce" and that the Act applies even when the act of failing to register is purely intrastate. The court pointed out several other statutes that criminalize "local acts" undertaken after interstate travel. As explained by the court, "[t]here must be a conviction that gives rise to the registration requirement, subsequent interstate travel, and a failure to register." That conclusion is in line with other circuits have decided the issue.

Judge Michael dissented, arguing that the AG's reason for promulgating a rule without following the APA procedures was inadequate. Because Gould's conviction relied upon that regulation, it must be reversed.