US v. Park

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Michael Boudin, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [11-1194]

Case: 11-1194

Document: 00116444547

Page: 1

Date Filed: 10/16/2012

Entry ID: 5683124

United States Court of Appeals
For the First Circuit
No. 11-1194
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN PARKS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]

Before
Torruella, Boudin and Thompson,
Circuit Judges.
J. Hilary Billings, Assistant Federal Defender, Federal
Defender Office, for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief
for appellee.

October 16, 2012

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BOUDIN, Circuit Judge.

Date Filed: 10/16/2012

Entry ID: 5683124

Brian Parks was convicted under

the U.S. Criminal Code, 18 U.S.C. § 2250(a) (2006), for traveling
in interstate commerce and then knowingly failing to update his sex
offender registration at his destination as required by the Sex
Offender Registration and Notification Act ("SORNA"), Pub. L. No.
248, tit. I, 120 Stat. 587, 590-611 (2006) (codified primarily at
18 U.S.C. § 2250 and 42 U.S.C. §§ 16901-16962).

He now appeals to

challenge his conviction and his sentence.
Prior to his travel-and-failure-to register offense now
at

issue,

Parks

had

been

convicted

of

sexual

offenses

in

Massachusetts, one in January 1990, and another in June 1996.

He

was notified in writing on September 21, 2006, of his duty to
register under SORNA. He initially registered in Massachusetts but
then failed to register in Maine when, at some point in 2009, he
began to reside in Maine.

Parks was warned to register in Maine by

a policeman who encountered him there in August 2009, but he
ignored the warning.
On February 8, 2010, Maine police discovered that Parks
had been living at a motel in Maine since November 21, 2009, and
that there were warrants out for his arrest on a probationviolation charge in Massachusetts, apparently for having failed to
update his registration in that state in July 2009.
arrested and was returned to Massachusetts.

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He was

There he admitted to

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the Massachusetts probation violation and was sentenced by a
Massachusetts state court to two and a half years in prison.
In May 2010, Parks was indicted by a federal grand jury
in Maine on one count of traveling in interstate commerce and
knowingly failing to update a registration as required by SORNA, 18
U.S.C. § 2250(a).

After the district court denied Parks' several

challenges to SORNA, he pled guilty conditioned on his right to
appeal the legal objections urged in his failed motion to dismiss.
Thereafter he was sentenced by the district court to 35 months'
imprisonment
probation.

consecutive

to

his

state

sentence

for

violating

He now appeals to pursue his reserved contentions.
SORNA was enacted in July 2006 under Congress' Commerce

Clause power to create "a comprehensive national system for the
registration of [sex] offenders,"

42 U.S.C. § 16901; the statute

requires sex offenders to register, and to keep their registrations
current, in each jurisdiction where they reside, work, or attend
school.

Id. §§ 16913(a) & (c).

SORNA imposes criminal sanctions

on convicted sex offenders subject to its registration requirements
who travel in interstate commerce and knowingly fail to register or
update their registrations.
By

its

own

18 U.S.C. § 2250(a).

terms,

SORNA's

registration

requirements

applied automatically to individuals who committed a triggering
sexual offense after the statute's enactment in July 2006.

The

Attorney General was told to decide whether SORNA should be applied

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to those who committed their triggering sexual offense before
SORNA's enactment.

42 U.S.C. § 16913(d).

ruled that it should so apply.1

The Attorney General

But just when this approval became

effective was the subject of dispute and was answered only recently
by the Supreme Court in Reynolds v. United States, 132 S.Ct. 975
(2012), resolving a circuit split on the matter.
In

Reynolds

the

Supreme

Court

Id. at 981.

held

that

SORNA's

prohibition of travel and failure to register applied to pre-SORNA
sexual

offenders

like

Parks

only

where

the

travel

and

non-

registration occurred after the Attorney General's approval had
occurred, rather than from the date of SORNA'S enactment. 132 S.Ct.
at 984. The Supreme Court did not, however, determine whether this
approval should be deemed effective in February 2007, when an
Interim Rule was promulgated on an emergency basis to make SORNA
applicable to pre-SORNA sexual offenses, or on August 1, 2008, when
the so-called SMART guidelines issued by the Attorney General
became effective.

1

Applicability
of
the
Sex
Offender
Registration
and
Notification Act, 72 Fed. Reg. 8894, 8896 (Feb. 28, 2007) (codified
at 28 C.F.R. § 72.3); The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38,030 (July 2, 2008).
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The circuits are in disagreement about this issue,2 and
our

circuit has not yet addressed it because, like four other

circuits, we had previously believed that SORNA applied to pre-Act
offenders from the moment of its enactment.

However, several of

our decisions resting on this premise were vacated after Reynolds:
United States v.DiTomasso, 621 F.3d 17 (1st Cir. 2010), vacated,
132 S.Ct. 1533 (2012); United States v. Stevens, 640 F.3d 48 (1st
Cir. 2011), vacated, 132 S.Ct. 1739 (2012); United States v.
Gagnon, 621 F.3d 30 (1st Cir. 2010), vacated, 132 S. Ct. 1533
(2012).
Conversely, the Supreme Court denied certiorari on a
similar case from this circuit in which the offender traveled after
the Interim Rule but before the SMART regulations.

United States

v. Thompson, 431 Fed. App'x 2 (1st Cir. 2011), cert. denied, 132 S.
Ct. 1739 (2012).

This might suggest that the Supreme Court agrees

with the circuits supporting the Interim Rule date but it has not
formally decided the issue and we have no occasion to resolve it
here, since Parks would be covered whether the Interim Rule date or
the 2008 SMART guidelines date controlled.

2

Compare United States v. Dean, 604 F.3d 1275, 1282 (11th
Cir), cert. denied, 131 S. Ct. 642 (2010) (finding that the Interim
Rule governs), and United States v. Gould, 568 F.3d 459, 470 (4th
Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010) (same), with
United States v. Utesch, 596 F.3d 302, 310 & 311 n.8 (6th Cir.
2010) (finding that the 2008 action governs), and United States v.
Valverde, 628 F.3d 1159, 1169 (9th Cir. 2010), cert. denied, 132 S.
Ct. 1534 (2012) (same).
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Thus, Parks pled guilty to an indictment alleging that he
traveled in interstate commerce and knowingly failed to update his
registration between November 21, 2009, and February 7, 2010, long
after the 2008 SMART guidelines were promulgated by the Attorney
General,

and

Parks

makes

no

argument

that

the

requirements took effect on an even later date.

registration

Parks suggests

that we remand the matter to the district court for further
consideration but does not explain what purpose would be served by
a remand.
Reynolds--a statutory interpretation decision--does not
address Parks' separate claim on appeal that applying SORNA to him
violates the Ex Post Facto Clause, U.S. Const. Art. I, § 9, cl. 3.
The most familiar argument in this vein--that Congress cannot
criminalize conduct after it occurs--does not operate here because
while Parks' sexual offenses occurred pre-SORNA, the travel and
failure to register for which he was punished occurred after SORNA.
Thompson, 431 Fed. App'x at 4.

Rather, Parks invokes the Ex Post

Facto Clause by arguing that SORNA's registration requirements
impermissibly

increase

his

punishment

for

his

earlier

sexual

offenses--an issue of law which we consider de novo.
The Ex Poste Facto argument turns on whether SORNA is
deemed a civil regulatory measure aiming at forestalling future
harm or is instead punitive either in its purpose or effect.
Smith v. Doe, 538 U.S. 84, 92 (2003).

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See

If the sole issue were

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professed legislative purpose, the answer would be obvious: the Act
clearly states that its purpose is to "protect the public from sex
offenders and offenders against children . . . [by] establish[ing]
a comprehensive national system for the registration of those
offenders."

42 U.S.C. § 16901.

The mechanics of the statute's

registration scheme are consistent with this preventive aim.
The Supreme Court has said that we "ordinarily defer to
the legislature's stated intent . . . [and] only the clearest proof
will suffice to override legislative intent and transform what has
been denominated a civil remedy into a criminal penalty."

Smith,

538 U.S. at 92 (quoting Kansas v. Hendricks, 521 U.S. 346, 361
(1997) and Hudson v. United States, 522 U.S. 93, 100 (1997)
(internal quotation marks omitted)).

But, in principle, a statute

declared by Congress to be regulatory rather than punitive can
still be re-christened by a court under some circumstances.

Thus,

Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963), asks
whether a scheme
-imposes
an
restraint;

affirmative

disability

-has been regarded in our
traditions as a punishment;
-comes into
scienter;

play

only

on

history
a

finding

or
and
of

-promotes the traditional aims of punishment;
-applies to behavior that is already a crime;

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-has a rational connection to a nonpunitive
purpose; and
-is excessive with respect to this purpose.
SORNA is surely burdensome for those subject to it.

A

sex offender must register in each jurisdiction where he resides,
works, or goes to school, 42 U.S.C. § 16913(a), and he must
periodically

appear

in

person

to

verify

and

update

information,3 and also to be photographed. Id. § 16916.

certain

Given his

offenses, Parks will have to do this every three months for the
rest of his life,
may

be

reduced

id. §§ 16915(a), 16916(b), although the period
if

he

fulfills

certain

requirements.

Id.

§

16915(b).
SORNA also establishes an online federal sex offender
database (which is publically available) and instructs individual
jurisdictions to establish their own similar databases, which
include the offender's name, physical description, photograph,
criminal offense, criminal history, and any other information
required by the Attorney General.
16919, 16920.

42 U.S.C. §§ 16914, 16918,

The prospective disadvantages to Parks from such

publicity are obvious.

3

When he registers, an offender must be fingerprinted and
provide his name, any aliases, his social security number, the
address of each residence where he resides or will reside, the name
and address of any place where he is an employee or will be an
employee, the name and address of any place where he is a student
or will be a student, the license plate number and a description of
any vehicle he owns or operates, and any other information required
by the Attorney General. 42 U.S.C. § 16914.
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However, in Smith, the Supreme Court found that Alaska's
nearly identical registration requirement served to "make a valid
regulatory

program

effective

and

[did]

not

impose

punitive

restraints in violation of the Ex Post Facto Clause." 538 U.S. at
102. The main distinction is that SORNA requires that Parks appear
in person to register and update registration, 42 U.S.C. § 16916,
while--as Smith itself noted--the Alaska statute did not and the
Ninth Circuit, which had found the Alaska scheme unconstitutional,
"was under a misapprehension, albeit one created by the State
itself during the argument below, that the offender had to update
the registry in person."

538 U.S. at 101.

To appear in person to update a registration is doubtless
more inconvenient than doing so by telephone, mail or web entry;
but it

serves

the

remedial purpose

of

establishing

that the

individual is in the vicinity and not in some other jurisdiction
where he may not have registered, confirms identity by fingerprints
and records the individual's current appearance.

Further, the

inconvenience is surely minor compared to the disadvantages of the
underlying

scheme

in

its

consequences

for

renting

housing,

obtaining work and the like--consequences that were part of the
package that Smith itself upheld.
Admittedly, SORNA's registration requirement arises at
the time of criminal sentencing, and it is imposed in direct
response to conviction for a criminal act; but this was equally

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true in Smith, which said that "[t]he policy to alert convicted
offenders to the civil consequences of their criminal conduct does
not render the consequences themselves punitive."

Smith, 538 U.S.

at 95-96.

Registration is frequently part of civil regulation,

including

car

licensing,

social

security

applications,

and

registering for selective service.
Parks' only hope is the last of the Mendoza-Martinez
criteria, which permits him to argue that the impact of the scheme
"is excessive with respect to the [regulatory] purpose."

372 U.S.

at 169. But Smith expressly rejected the argument that "wide
dissemination" of such information was excessive, finding a similar
public notification system "reasonable in light of the nonpunitive
objective." Smith, 538 U.S. at 103-05. Accordingly, we join every
circuit to consider the issue and reject the main claim made by
Parks.4
Parks next asserts that SORNA reaches beyond the limits
of Congress' power under the Commerce Clause. See United States v.
Lopez, 514 U.S. 549, 558-59 (1995). This court rejected such an

4

See United States v. Young, 585 F.3d 199, 204 (5th Cir.
2009); United States v. Hinckley, 550 F.3d 926, 936-37 (10th Cir.
2008), cert. denied, 556 U.S. 1240 (2009); United States v. May,
535 F.3d 912, 919 (8th Cir. 2008), cert. denied, 556 U.S. 1258
(2009); United States v. Lawrance, 548 F.3d 1329, 1333-34 (10th
Cir. 2008); see also United States v. Cotton, 760 F. Supp. 2d 116,
135-36 (D.D.C. 2011), appeal dismissed, 2012 U.S. App. LEXIS 8464
(D.C. Cir. Apr. 9, 2012); United States v. Talada, 631 F. Supp. 2d
797, 806-08 (S.D.W. Va. 2009) aff'd, 380 Fed. App'x 255 (4th Cir.
2010), cert. denied, 131 S. Ct. 821 (2010).
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argument in DiTomasso, concluding that SORNA was a legitimate
exercise of Congress's Commerce Power as it is not dependant on
indirect effects on commerce but "explicitly regulates the use of
the channels of, and persons in, interstate commerce." 621 F.3d at
26. Although after Reynolds the Supreme Court vacated and remanded
DiTomasso, it did so only because this court had deemed SORNA
effective on enactment as to pre-SORNA offenders.
DiTomasso's reasoning on the Commerce Clause question
remains the expressed position of this circuit even though the
judgment was

vacated

on

other

grounds,

see United

States

v.

Adewani, 467 F.3d 1340, 1342 (D.C. Cir. 2006); cf. United States v.
Franco-Santiago, 681 F.3d 1, 12 (1st Cir. 2012) (following United
States v. Thurston, 358 F.3d 51, 63 (1st Cir. 2004), vacated on
other grounds, 543 U.S. 1097 (2005)).

Our resolution is also

consistent with the judgment of every other circuit court to
consider the matter.5

Given the discussion in DiTomasso and the

cases cited in the margin, further elaboration is unnecessary.
Next, Parks argues that SORNA as applied to him violates
the Due Process Clause, because the two states among which he moved
had not implemented the Act at the time of his violation.

5

He says

See, e.g., United States v. Coleman, 675 F.3d 615, 619-21
(6th Cir.), cert. denied, 2012 U.S. LEXIS 7021 (2012); United
States v. Guzman, 591 F.3d 83, 89-91 (2d Cir.), cert. denied, 130
S. Ct. 3487 (2010); United States v. Shenandoah, 595 F.3d 151, 16061 (3d Cir.), cert. denied, 130 S. Ct. 3433 (2010); United States
v. Zuniga, 579 F.3d 845, 850 (8th Cir. 2009), cert. denied, 130 S.
Ct. 3384 (2010); Hinckley, 550 F.3d at 939-40.
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it would have been impossible for him to have registered in Maine
and that he was denied constitutionally adequate notice of his duty
to register.

But while SORNA requires the states to maintain sex

offender registries along certain lines, every state had a sex
offender

registration

law

in

place

when

SORNA

became

law.

DiTomasso, 621 F.3d at 27.
Parks in fact registered under the Massachusetts law and
could equally have registered under the Maine law when he moved
there, as he was warned to do by a Maine police officer.
neither notice nor the means to comply with SORNA.

He lacked

We rejected a

like argument in DiTomasso, see id., and Gagnon, see Gagnon, 621
U.S. at 33, and, once again, their authority in this circuit on
this issue was not impaired by Reynolds' disagreement with the
decisions on an entirely different issue.
Parks next claims that the Attorney General's statutory
authority to apply the registration requirements to those convicted
of

sexual

offenses

before

SORNA's

enactment

contravenes

constitutional limitations on the delegation of legislative power.
The

pertinent

precedents

require

that

when

Congress

confers

decision-making authority, it must "lay down by legislative act an
intelligible principle to which the person or body authorized to
[act] is directed to conform."

J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928).

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SORNA

provided

Page: 13

such

Date Filed: 10/16/2012

principle

by

Entry ID: 5683124

specifying

the

regulatory policy that the registration system represents and by
effectively delegating to the Attorney General the judgment whether
this policy would be offset, in the case of pre-SORNA sexual
offenders, by

problems of administration, notice and the like for

this discrete group of offenders--problems well suited to the
Attorney General's on-the-ground assessment.
that

have

addressed

the

issue

have

All other circuits

rejected

the

delegation

objection, which modern case law tends regularly to disfavor.6
Parks' final challenge is not to SORNA but to his own
sentence.

His concern here is not with his 35 month sentence but

with the decision of the district court to make it consecutive to,
rather than concurrent with, his 30 month sentence imposed by the
Massachusetts

state

court

for

violating

his

state

probation

requirement by failing to update his Massachusetts sex offender
registration.
Parks' first objection is that the district court was
mistaken in assuming that he was obliged to make the sentence
concurrent.

The district judge, when asked to make the federal

sentence concurrent, refused, saying: "What I'm going to do in this
case, I take into account the lengthy sentence he is already

6

See, e.g., United States v. Felts, 674 F.3d 599, 606
Cir. 2012); United States v. Rogers, 468 Fed. App'x 359, 362
Cir. 2012); Guzman, 591 at 93; United States v. Ambert, 561
1202, 1213 (11th Cir. 2009); United States v. Whaley, 577 F.3d
263-64 (5th Cir. 2009).
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(6th
(4th
F.3d
254,

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serving, and I believe that I'm precluded from making the sentences
concurrent under the existing circumstances, though I wouldn't do
it if I were permitted to do so."

The Sentencing Guidelines do

provide for a consecutive sentence, U.S.S.G. § 5G1.3, cmt. n.3(C),
but the district court is now free under United States v. Booker,
543 U.S. 220 (2005), to disregard them.
Parks did not challenge the district court's premise at
sentencing or invoke the Booker exception; but anyway the district
judge's failure to acknowledge the exception did not prejudice
Parks, see Fed. R. Crim. P. 52(a); United States v. Olana, 507 U.S.
725, 734-35 (1993), since the district court made clear that he
would impose the consecutive sentence even if he were free to make
the sentence concurrent.

Where such an assurance is given by the

district judge and we have no reason to think otherwise, this is
enough.

See United States v. Benedetti, 433 F.3d 111, 119 (1st

Cir. 2005).
Parks

argues

that

the

district

judge

(doubting

his

ability to impose a concurrent sentence) could not fully have
considered the ordinary sentencing factors.

18 U.S.C. § 3584(b)

(incorporating by cross reference the list of factors prescribed by
section 3553(a)); United States v. Rogers, 521 F.3d 5, 10-11 (1st
Cir. 2008).
sentence

he

But the district court shortened the consecutive
might

otherwise

have

imposed

on

account

of

the

Massachusetts sentence, and his ultimate choice of a shortened but

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consecutive sentence came after a thoughtful description of Parks,
his crime and the very sentencing factors specified in the statute.
Parks

also

says

that

the

sentence

is

substantively

unreasonable, because both the probation offense of failing to
update his registration in Massachusetts and the federal offense of
crossing into Maine but not registering in Maine arose from the
same course of conduct. But consecutive sentences are not uncommon
in such situations, and the default position under the guidelines
for Parks was a fully consecutive sentence.
cmt. n.3(C).

Anyway,

See U.S.S.G. § 5G1.3,

the district court's specific choice to add

35 months for the federal offense was amply explained.
Parks had an extensive criminal record of 29 prior
convictions, including several crimes of a violent and sexual
nature.

He was on probation at the time the offense occurred and

his stay in Maine was not a brief visit but an extended one.

And

he disregarded an express warning to register in Maine.

The

district court did not abuse his discretion and the sentence, being
within

the

guideline

"parsimony principle."

range,

did

not

violate

the

so-called

United States v. Turbides-Leonardo, 468

F.3d 34, 41 (1st Cir. 2006), cert. denied, 551 U.S. 1170 (2007).
Affirmed.

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