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United States v. Dean - 604 F.3d 1275 (11th Cir. 2010)

Rule:

On February 28, 2007, the Attorney General of the United States promulgated an interim rule pursuant to 42 U.S.C.S. § 16913(d), making the Sex Offender Registration and Notification Act ("SORNA") retroactive to all sex offenders convicted prior to SORNA's enactment. 28 C.F.R. § 72.3 (2007). In promulgating the rule, the Attorney General invoked the "good cause" exceptions of the Administrative Procedure Act, 5 U.S.C.S. § 553(b)(3)(B), (d)(3); the Attorney General did not have a pre-promulgation notice and comment period.

Facts:

Congress enacted the Sex Offender Registration and Notification Act ("SORNA"), which became effective on July 27, 2006. 42 U.S.C.S. § 16901 (2006). SORNA mandated that all states maintain a sex offender registry. On Feb. 28, 2007, the Attorney General of the United States promulgated an interim rule pursuant to § 16913(d) making SORNA retroactive to all sex offenders convicted prior to SORNA's enactment. In promulgating the rule, the Attorney General invoked the "good cause" exceptions of the Administrative Procedure Act ("APA"), 5 U.S.C.S. §§ 553(b)(3)(B) and (d)(3) and did not have a pre-promulgation notice and comment period. On Jan. 18, 1994, defendant Christopher C. Dean was convicted of criminal sexual conduct in the third degree in Minnesota. As a result of the conviction, Dean was required to register as a sex offender. Dean relocated to Montana in 2003 and registered as a sex offender there. Dean then subsequently relocated to Georgia and registered in 2005 as a sex offender and provided notice to Montana. Dean traveled to Alabama sometime between July 2007 and August 2007 and failed to register as a sex offender there. Dean was arrested in Alabama for failing to register. On March 14, 2008, Dean was charged in federal district court with one count of having traveled in interstate commerce and knowingly failing to register as a sex offender as required by SORNA, in violation of 18 U.S.C.S. § 2250(a). Dean filed a motion to dismiss the indictment, arguing that SORNA was invalid under the Administrative Procedure Act, non-delegation doctrine, Commerce Clause, Ex Post Facto Clause, and Due Process Clause of the Constitution. The district court denied Dean's motion to dismiss. Dean then pleaded guilty to the charge, and was sentenced to time served. On appeal, Dean argued that the Attorney General did not have a good cause to promulgate a rule making SORNA retroactive without notice and comment as required by the APA.

Issue:

Was the rule making SORNA retroactive to all sex offenders convicted prior to SORNA’s enactment valid, notwithstanding the fact that it did not comply with the notice and comment requirement of the APA?

Answer:

Yes.

Conclusion:

The appellate court affirmed the district court's judgment. The court ruled that the Attorney General was granted sole discretion to determine retroactivity. While the Attorney General's post-promulgation comments did not rectify the lack of pre-promulgation notice and comment, the public safety argument for bypassing notice and comment reduced the risk of additional assaults and abuse by allowing federal authorities to apprehend and prosecute sex offenders. SORNA's retroactive application also removed a barrier to timely apprehension. Thus, the Attorney General had good cause to bypass the APA's notice and comment requirement.

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