12‐5002‐cr United States v. Lott
In the United States Court of Appeals For the Second Circuit ________
AUGUST TERM, 2013
ARGUED: OCTOBER 29, 2013 DECIDED: APRIL 24, 2014
No. 12‐5002‐cr
UNITED STATES OF AMERICA, Appellee,
v.
CORY LOTT, Defendant‐Appellant. ________
Before: WALKER, CABRANES, and PARKER, Circuit Judges. ________
Cory Lott (“Lott”) appeals from the 63‐month sentence
imposed in the United States District Court for the District of
Vermont (William K. Sessions, III, District Judge), following his
guilty plea for failure to register as a sex offender in violation of 18
U.S.C. § 2250(a). Lott contends that the district court should have
dismissed the indictment because at the time of Lott’s interstate
1 No. 12‐5022‐cr
travel, the Sex Offender Registration and Notification Act
(“SORNA”), Pub. L. No. 109‐248, 120 Stat. 587 (2006) (codified at 18
U.S.C. § 2250 and 42 U.S.C. § 16911 et seq.), was not applicable to pre‐
Act offenders such as Lott. Lott also contends that the district court
erroneously applied an eight‐level sentencing enhancement under
the United States Sentencing Guidelines (“U.S.S.G.”) section
2A3.5(b)(1)(C). We reject Lott’s arguments and AFFIRM the
judgment of the district court.
________
DAVID L. MCCOLGIN (Michael L. Desautels, on the brief), Federal Public Defender’s Office, District of Vermont, Burlington, VT, for Defendant‐Appellant.
MICHAEL DRESCHER, Assistant United States Attorney (Tristram J. Coffin, United States Attorney for the District of Vermont, William B. Darrow and Gregory L. Waples, Assistant United States Attorneys, on the brief), Burlington, VT, for Appellee.
JOHN M. WALKER, JR. Circuit Judge:
imposed in the United States District Court for the District of
Vermont (William K. Sessions, III, District Judge), following his
guilty plea to failure to register as a sex offender in violation of 18
U.S.C. § 2250(a). Lott contends that the district court should have
dismissed the indictment because at the time of Lott’s interstate
2 No. 12‐5022‐cr
(“SORNA”), Pub. L. No. 109‐248, 120 Stat. 587 (2006) (codified at 18
U.S.C. § 2250 and 42 U.S.C. § 16911 et seq.), was not applicable to pre‐
Act offenders such as Lott. Lott also contends that the district court
erroneously applied an eight‐level sentencing enhancement under
BACKGROUND
In November 2001, Lott was convicted in New York of
attempted sexual abuse and sentenced to one year probation. As a
result of his conviction he was required under state law to register as
a sex offender in New York, but he failed to do so. In 2006, Congress
passed SORNA, which requires sex offenders to register in each
jurisdiction in which they reside, work, or go to school; however,
SORNA does not specify whether this requirement pertains to
offenders whose offenses predate SORNA’s 2006 effective date.
Lott eventually moved to South Carolina, where in 2009 he
was convicted under state law for failure to register. In 2010, Lott
moved to Vermont and failed to register, as the government alleges
was required by SORNA. In November 2010, Lott sexually assaulted
a 13‐year‐old girl and fled the state. In February 2011, Vermont
obtained an arrest warrant for Lott on a charge of lewd and
lascivious conduct in connection with this assault. In September
3 No. 12‐5022‐cr
2011, a federal grand jury returned an indictment alleging that Lott
had traveled to Vermont in late 2010 without registering as a sex
offender, in violation of SORNA, 18 U.S.C. § 2250(a). Twelve days
later, Lott pled guilty in Vermont state court to two misdemeanor
prohibited acts counts based on the assault. He was sentenced to six
to twelve months’ imprisonment.
Lott then moved to dismiss the federal indictment, raising a
number of challenges to the validity of SORNA as applied. The
district court denied the motion to dismiss. On August 6, 2012, Lott
pled guilty pursuant to a written plea agreement that preserved his
right to appeal his challenges to the application of SORNA. At
sentencing, the district court calculated the sentencing guidelines
range to be 63 to 78 months, including an eight‐level enhancement
pursuant to U.S.S.G. § 2A3.5(b)(1)(C) for committing a sex offense
against a minor while he was in failure‐to‐register status. Defense
counsel objected to the sentencing enhancement. The district court
overruled defense counsel’s objections and imposed a sentence of 63
months’ imprisonment.
Lott appeals the constitutionality of SORNA’s registration
requirement to conduct that preceded SORNA’s effective date and
also appeals the application of the eight‐level sentencing
enhancement.
4 No. 12‐5022‐cr
DISCUSSION
I. The Retroactivity of SORNA
A. SORNA
SORNA was enacted to “establish[] a comprehensive national
system for the registration of [sex] offenders.” 42 U.S.C. § 16901. The
Act “requires those convicted of certain sex crimes to provide state
governments with (and to update) information, such as names and
current addresses, for inclusion on state and federal sex offender
registries.” Reynolds v. United States, 132 S. Ct. 975, 978 (2012). “The
Act makes it a crime for a person who is ‘required to register’ under
the Act and who ‘travels in interstate or foreign commerce’ to
knowingly ‘fai[l] to register or update a registration.’” Id. (alteration
in original) (quoting 18 U.S.C. § 2250(a)).
The statute does not specify whether its registration
requirements apply retroactively to sex offenders who are convicted
prior to SORNA’s enactment. However, SORNA section 113(d)1
gives the Attorney General the “authority to specify the applicability
of the [registration] requirements . . . to sex offenders convicted
before the enactment” of SORNA. In 2012, the Supreme Court,
resolving a disagreement between circuit courts,2 and construing
42 U.S.C. § 16913(d). 1
2 Six Circuits had held that SORNA’s registration requirements did not apply to pre‐Act offenders unless and until the Attorney General so specified. United States v. Johnson, 632 F.3d 912, 922‐927 (5th Cir. 2011); United States v. Valverde, 628 F.3d 1159, 1161‐62 (9th Cir. 2010); United States v. Cain, 583 F.3d 408, 414‐19 (6th Cir. 2009); United States v. Hatcher,
5 No. 12‐5022‐cr
section 113(d), held in Reynolds that SORNA’s “registration
requirements do not apply to pre‐Act offenders until the Attorney
General specifies that they do apply.”3 132 S. Ct. at 978.
The Attorney General has issued three sets of regulations that
arguably adequately specify that SORNA’s registration
requirements apply to pre‐Act offenders: the “Interim Rule” in
February 2007, 72 Fed. Reg. 8,894 (Feb. 28, 2007); the Sentencing,
Monitoring, Apprehending, Registering, and Tracking (“SMART”)
Guidelines in July 2008, 73 Fed. Reg. 38,030 (July 2, 2008); and the
“Final Rule” in December 2010, 75 Fed. Reg. 81,849 (Dec. 29, 2010).
The Final Rule postdates Lott’s travel to Vermont and is therefore
not applicable.
B. Validity of SMART Guidelines
Lott challenges the validity of both the Interim Rule and the
SMART Guidelines. Because we find that the SMART Guidelines
560 F.3d 222, 226‐229 (4th Cir. 2009); United States v. Dixon, 551 F.3d 578, 582 (7th Cir. 2008), rev’d on other grounds, 560 U.S. 438 (2010); United States v. Madera, 528 F.3d 852, 857‐59 (11th Cir. 2008) (per curiam). Five Circuits, including our own, had held that the registration requirements applied from the date of the Act’s enactment, and prior to any such specification, at least with respect to pre‐Act offenders who had already registered under state law. United States v. Fuller, 627 F.3d 499, 506 (2d Cir. 2010); United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir. 2010); United States v. Shenandoah, 595 F.3d 151, 163 (3d Cir. 2010); United States v. Hinckley, 550 F.3d 926, 932 (10th Cir. 2008); United States v. May, 535 F.3d 912, 918‐19 (8th Cir. 2008). 3 Reynolds did not address the question of whether the Attorney General had, in fact, taken any action “specif[ying]” SORNA’s retroactivity.
6 No. 12‐5022‐cr
validly extended SORNA’s applicability to pre‐Act offenders, we
need not decide whether the Interim Rule had the same effect.
As to the SMART Guidelines’ validity, Lott’s argument is
twofold. First, he argues that the SMART Guidelines are interpretive
rules rather than substantive rules because the Attorney General’s
authority to issue the guidelines flows from SORNA section 112(b)4
and because the Attorney General conceded this point. Substantive
rules independently have the force of law, but interpretative rules
can only clarify existing law. See United States v. Yuzary, 55 F.3d 47,
51 (2d Cir. 1995). If Lott is correct, then the SMART Guidelines
cannot validly specify that SORNA’s registration requirements
apply to pre‐Act offenders. Second, Lott claims that even if the
SMART Guidelines were issued pursuant to the Attorney General’s
substantive rulemaking authority, the Attorney General did not
comply with the notice‐and‐comment requirement of the
Administrative Procedure Act (“APA”), 5 U.S.C. § 553. We disagree
with both of these arguments.
The SMART Guidelines were an act of substantive
rulemaking. The notice proposing the guidelines specifically stated:
“These proposed guidelines carry out a statutory directive to the
Attorney General, in section 112(b) of SORNA (42 U.S.C. § 16912(b))
to issue guidelines to interpret and implement SORNA.” 72 Fed.
Reg. 30,210 (May 30, 2007). The reference to the Attorney General’s
4 42 U.S.C. § 16912(b).
7 No. 12‐5022‐cr
section 112(b) authority to “interpret and implement” SORNA does
not support Lott’s conclusion that the guidelines are interpretative.
Interpretive rules “do not create rights, but merely clarify an existing
statute or regulation.” N.Y. State Elec. & Gas Corp. v. Saranac Power
Partners, L.P., 267 F.3d. 128, 131 (2d Cir. 2001) (internal quotation
marks omitted). Substantive rules, however, “create new law,
right[s], or duties.” Id. Substantive rules “implement the statute.”
Chrysler Corp. v. Brown, 441 U.S. 281, 302‐03 (1979) (emphasis added).
See also Am. Broad. Cos., Inc. v. FCC, 682 F.2d 25, 32 (2d Cir. 1982)
(“The phrase ‘substantive rules adopted as authorized by law’
refers, of course, to rules issued by an agency to implement statutory
policy.”). By specifying that the Attorney General has the power to
“implement” SORNA, section 112(b) plainly gives the Attorney
General the authority to issue substantive rules.
Moreover, section 112(b)’s implementation power
incorporates section 113(d)’s authorization to the Attorney General
to “specify the applicability of the requirements of” SORNA to pre‐
Act offenders. 42 U.S.C. § 16913(d); see United States v. Whitlow, 714
F.3d 41, 46 (1st Cir. 2013) (“§ [112](b)’s interpret‐and‐implement
authority appears to subsume the narrower power to make
retroactivity determinations . . . .”); United States v. Stevenson, 676
F.3d 557, 563‐64 (6th Cir. 2012) (“[E]ven if the SMART Guidelines
were solely promulgated under § [112](b), the Attorney General still
had authority to address the retroactivity of SORNA in substantive
8 No. 12‐5022‐cr
rules pursuant to § [112](b), because § [112](b) incorporates by
reference § [113](d).”).
And finally, the proposed SMART Guidelines specifically
reference section 113(d) in their discussion of retroactivity. See 72
Fed. Reg. at 30,212 (stating that the regulation making SORNA’s
requirements apply to all sex offenders were issued “pursuant to the
authority under SORNA section 113(d)”). The APA requires only
that a proposed rule provide some notice of the legal authority for
that rule—it does not prescribe the form that notice must take. 5
U.S.C. § 553(b)(2); see Stevenson, 676 F.3d at 563 (“The APA does not
require that the proposed rule cite the relevant legal authority in a
certain location, but rather requires just that notice must be given for
any proposed rule.”).
Lott also argues that the Attorney General conceded that the
SMART Guidelines are interpretive rules. Lott relies on the fact that
the Attorney General, after publishing the SMART Guidelines,
found it necessary to publish the Final Rules. He further relies on the
fact that at the time of publication of the SMART Guidelines, the
Attorney General took the position that SORNA applied to pre‐Act
offenders by force of the statute.
The publication of the Final Rule was not, however, a
concession by the Attorney General that the earlier rules were
invalid. As noted, in February 2007, the Attorney General issued the
Interim Rule purported to make SORNA effective immediately to all
9 No. 12‐5022‐cr
sex offenders, including those convicted of sex offenses prior to
SORNA’s enactment. In May 2007, the SMART Guidelines were
published in proposed format, and after a notice and comment
period, they were published in final format in July 2008. The SMART
Guidelines provide jurisdictions5 with guidance and advice
regarding the administration and implementation of SORNA. 73
Fed. Reg. 38,030. In August 2010, the Attorney General published
the Final Rule to “eliminate any possible uncertainty or dispute
concerning the scope of SORNA’s application,” without conceding
that the Interim Rule or the SMART Guidelines were invalid. 75 Fed.
Reg. at 81,850.
Nor does the Attorney General’s position that Congress itself
had decreed that SORNA applied to pre‐Act offenders constitute a
concession that the SMART Guidelines are interpretive. Such a
concession cannot be gleaned from the fact that the Attorney
General erroneously believed that the earlier statute accomplished
what the later SMART Guidelines did explicitly. The Attorney General was not alone in this belief. Until the Supreme Court’s decision in
Reynolds, five circuits, including ours, held that SORNA’s registration
requirements already applied to pre‐act offenders. See Reynolds, 132 S. Ct.
at 980.
5The term “jurisdiction” means any of the following: a state, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and Indian Tribes that elected to be registration jurisdictions. 42 U.S.C. § 16911.
10 No. 12‐5022‐cr
As to Lott’s second argument that the SMART Guidelines
failed to satisfy the notice‐and‐comment requirements of the APA,
we join several of our sister circuits that have found that they did.
See Whitlow, 714 F.3d at 45 (1st Cir. 2013); United States v. Mattix, 694
F.3d 1082, 1084 (9th Cir. 2012) (per curiam); United States v. Trent, 654
F.3d 574, 581 (6th Cir. 2011).6
Lott claims that because the Attorney General erroneously
believed that SORNA already applied retroactively, public
comments regarding retroactive application were not appropriately
considered, violating 5 U.S.C. § 553.7 But the record shows that the
public was given the opportunity to comment and that the Attorney
General gave consideration to these comments.
“Notice requirements are designed (1) to ensure that agency
regulations are tested via exposure to diverse public comment, (2) to
ensure fairness to affected parties, and (3) to give affected parties an
opportunity to develop evidence in the record to support their
objections to the rule and thereby enhance the quality of judicial
6 Other circuits have found that the Interim Rule validly extended SORNA’s applicability to pre‐Act offenders as the Attorney General had “good cause” to promulgate the Interim Rule without notice and comment as required by the APA. See United States v. Dean, 604 F.3d 1275, 1276 (11th Cir. 2010); United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009). 7 Section 553(c) states: “After notice required by this section, the agency
shall give interested persons an opportunity to participate in the rule making through submission [of comments] . . . . After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”
11 No. 12‐5022‐cr
review.” Int’l Union, United Mine Workers of Am. v. Mine Safety &
Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005). “[T]he
opportunity to comment is meaningless unless the agency responds
to significant points raised by the public.” Sherley v. Sebelius, 689 F.3d
776, 784 (D.C. Cir. 2012) (quoting Home Box Office, Inc. v. FCC, 567
F.2d 9, 35‐36 (D.C. Cir. 1977) (internal quotation marks omitted).
The SMART Guidelines were published in proposed form on
May 30, 2007. 72 Fed. Reg. 30,210. After a notice‐and‐comment
period that ended on August 1, 2007, they were published in final
form on July 2, 2008. 73 Fed. Reg. 38,030. Approximately 275
comments were received on the proposed guidelines, including
concerns about “provisions of the guidelines that require that
jurisdictions apply the SORNA requirements ‘retroactively’ to
certain categories of offenders whose sex offense convictions predate
the enactment of SORNA.” Id. at 38,030‐31. Of particular relevance
here, the commenters were concerned (1) that “Congress was simply
wrong in enacting SORNA[] . . . and that the Attorney General
should mitigate the resulting harm” and (2) that there would be
practical “difficulties in finding older convictions and determining
whether registration is required for them.” Id. at 38,031. The
Attorney General specifically addressed both of these concerns. In
response to the policy concerns, he concluded that “the public safety
concerns presented by sex offenders are much the same, regardless
of when they were convicted,” and he declined “to second‐guess the
12 No. 12‐5022‐cr
legislative policies” SORNA embodies. Id. at 38,036. In response to
the practical concerns, the proposed guidelines were modified to
clarify that jurisdictions could rely on their usual methods of
searching criminal histories. Id. at 38,043.
II. Constitutional Claims
Turning briefly to Lott’s broader arguments regarding
SORNA’s constitutionality, we have considered them and found
them to be without merit. In United States v. Guzman, 591 F.3d 83 (2d
Cir. 2010), we rejected claims that SORNA violates the non‐
delegation doctrine, the Tenth Amendment, and the Ex Post Facto
Clause. There is no superseding authority that causes us to revisit
that holding. SORNA does not violate the Commerce Clause either.
In Guzman, we found that SORNA was “a proper congressional
exercise of the commerce power.” Id. at 90. Since then, the Supreme
Court has spoken further on the limitations of Congress’s power to
regulate commerce. See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct.
2566, 2586‐90 (2012). We recently held, however, that the
constitutionality of SORNA, as applied to an interstate traveler such
as Lott, “remains unaffected by any limitations on Congress’s
Commerce Clause power that may be found in NFIB.” United States
v. Robbins, 729 F.3d 131, 132 (2d Cir. 2013), cert. denied, 134 S.Ct. 968
(2014).
13 No. 12‐5022‐cr
III. The Applicability of the Sentencing Enhancement
Because we have determined that Lott was in failure‐to‐
register status, we turn to Lott’s argument that the district court
committed procedural error by imposing an eight‐level
enhancement, pursuant to U.S.S.G. § 2A3.5(b)(1)(C), for commission
of a “sex offense” while in failure‐to‐register status. “We review a
district court’s imposition of sentence under an abuse‐of‐discretion
standard. The abuse‐of‐discretion standard incorporates de novo
review of questions of law (including interpretation of the
Guidelines) and clear‐error review of questions of fact.” United States
v. Salim, 549 F.3d 67, 72 (2d Cir. 2008) (citations omitted) (internal
quotation marks omitted).
The basis for the imposition of the enhancement was that Lott
was charged with “lewd and lascivious conduct”—a “sex offense”
under SORNA—for his uncontested attempt to force sexual contact
with a 13‐year‐old girl. He ultimately pled guilty to “prohibited
acts,” which is not categorically a sex offense.
Section 2A3.5(b)(1)(C) states: “If, while in a failure to register
status, the defendant committed . . . a sex offense against a minor,
increase by 8 levels.” In the application note for this section, “‘Sex
offense’ has the meaning given that term in 42 U.S.C. § 16911(5).”
Section 16911(5) defines “sex offense” to include “a criminal offense
that has an element involving a sexual act or sexual contact with
14 No. 12‐5022‐cr
another” and “a criminal offense that is a specified offense against a
minor.” 42 U.S.C. § 16911(5)(A)(i)‐(ii).
Lott argues that the enhancement is inapplicable to mere
commission of a sex offense absent a conviction for that offense. And
because Lott pled to the misdemeanor act of prohibited acts, which
he argues is not categorically a sex offense, the enhancement was
wrongly applied. We disagree. Neither 42 U.S.C. § 16911(5) nor
U.S.S.G. § 2A3.5(b)(1)(C) require a sex offense conviction in order to
apply an eight‐level increase pursuant to section 2A3.5; conduct
amounting to a “sex offense” is enough.8 “Neither the Guidelines
nor SORNA make any reference to a conviction. To the contrary, the
Guidelines specify that the enhancement is triggered by the
commission of an act.”9
8 Because the language of the guideline is clear that a conviction is not necessary for the enhancement, there is no need for us to perform the categorical/modified categorical approach to determine if Lott’s prohibited acts conviction qualifies as a “sex offense.” See generally United States v. Beardsley, 691 F.3d 252, 259 (2d Cir. 2012) (describing these approaches). 9 To support his argument that conviction is required, Lott also points
to U.S.S.G. § 1B1.1, cmt. 1(H), which states that “‘[o]ffense’ means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct).” But nothing in § 1B1.3, which describes “relevant conduct,” requires conviction.
15 No. 12‐5022‐cr
Lott’s uncontested forcible sexual contact with a 13‐year‐old
girl is a sex offense under section 16911(5). Therefore the district
court did not commit error by imposing the enhancement.10
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the
district court.
10 Because the conduct constituting a sex offense was uncontested in this instance, we need not consider what lower level of proof might suffice for application of the enhancement, absent a conviction.