Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, Senior District Judge, Presiding D.C. No. 2:08-cr-00187- LKK-1
The opinion of the court was delivered by: Reinhardt, Circuit Judge:
Argued and Submitted September 23, 2010-San Francisco, California
Before: Mary M. Schroeder, Stephen Reinhardt and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Reinhardt
The Government appeals a decision of the district court dismissing the indictment of Mark Anthony Valverde ("Valverde") under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., on the ground that the registration and penalty provisions of the statute under which Valverde was charged, 42 U.S.C. § 16913;
18 U.S.C. § 2250(a)(2)(B), are invalid exercises of congressional power under the Commerce Clause. U.S. Const. art. I, § 8, cl. 3. We stayed this matter pending a decision on that issue in United States v. George, ___ F.3d ___, No. 08-30339, 2010 WL 4291497 (9th Cir. 2010). Valverde contends in addition that no valid statute or properly promulgated rule made SORNA's registration requirements applicable to him as of the time that he is charged with failing to register, specifically in January 2008.
We lift the stay issued pending the panel's decision in George and reject Valverde's Commerce Clause argument in light of that decision. We AFFIRM, however, the district court's dismissal of the indictment. We do so on the separate ground that the Attorney General's interim regulation of February 28, 2007 - applying SORNA's registration requirements retroactively to sex offenders, such as Valverde, who were convicted before the statute's enactment - did not comply with the notice and comment procedures of the Administrative Procedure Act ("APA"), and did not qualify for the "good cause" exemption under 5 U.S.C. § 553(d)(3). As a result, the retroactivity provision did not become effective until August 1, 2008 -30 days after its publication in the final SMART guidelines along with the Attorney General's response to related public comments.
In 2002, Valverde pled guilty in California Superior Court to eleven counts of sexual abuse of a minor under 16 and one count of child pornography. He was sentenced to twelve years in prison. Prior to his release, Valverde signed a form notifying him that under California law he was required to register as a sex offender within five days of his release from prison, and that if he moved to another state, he was required to register there within ten days. Valverde was released in California in January 2008 with an instruction to report to a parole officer the next day. He did not report, however, and was apprehended later that month at his grandmother's house in Missouri, having registered as a sex-offender in neither California nor Missouri. Valverde's offenses under California law are not at issue in this case.
In April 2008, defendant was indicted under SORNA, 42 U.S.C. § 16913, for having traveled, between January 6, 2008 and January 23, 2008, in interstate and foreign commerce and thereafter having knowingly failed to register as a sex offender as required by 18 U.S.C. § 2250. In February 2009, the district court dismissed the indictment, holding that neither 42 U.S.C. § 16913, which establishes the requirement that sex offenders register, nor 18 U.S.C. § 2250, which imposes criminal penalties for the failure to register, are valid exercises of congressional authority to regulate interstate commerce. The district court reasoned that these registration and penalty provisions of SORNA did not fall under any of the three categories of activity that Congress may regulate pursuant to its commerce power, as set forth by the Supreme Court in United States v. Lopez, 514 U.S. 555 (1995), and United States v. Morrison, 529 U.S. 598 (2000). The district court did not rule ...