USA v. Christopher Clement

Filing

FILED PER CURIAM OPINION (DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON and CARLOS T. BEA) (DFO dissenting) REVERSED AND REMANDED. The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Appellant s motion for oral argument is denied. This case is resubmitted as of August 11, 2011. Appellee s motion to stay this case pending a decision in Reynolds v. United States, 131 S. Ct. 1043 (2011) is denied. FILED AND ENTERED JUDGMENT. [7865204]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER MATTHEW CLEMENTS,
Defendant-Appellant.

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No. 09-10034
D.C. No.
4:08-cr-00303-DCBCRP-1
OPINION

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submission Deferred November 30, 2009
Resubmitted August 11, 2011*
San Francisco, California
Filed August 22, 2011
Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and
Carlos T. Bea, Circuit Judges.
Per Curiam Opinion;
Dissent by Judge O’Scannlain

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Appellant’s motion
for oral argument is denied. This case is resubmitted as of August 11,
2011. Appellee’s motion to stay this case pending a decision in Reynolds
v. United States, 131 S. Ct. 1043 (2011) is denied.

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UNITED STATES v. CLEMENTS

COUNSEL
Shelley Kay-Glenn Clemens, Esq., Assistant U.S. Attorney,
OFFICE OF THE U.S. ATTORNEY, Tucson, Arizona, for
the plaintiff-appellee.

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John D. Kaufmann, Esq., Tucson, Arizona, for the defendantappellant.

OPINION
PER CURIAM:
Christopher Matthew Clements appeals his conviction for
failing to register as a sex offender. 18 U.S.C. § 2250. On July
27, 2006, Congress enacted the Adam Walsh Child Protection
and Safety Act of 2006. Pub. L. No. 109-248, §§ 1-155, 120
Stat. 587, 590-611 (2006). Title I of the Adam Walsh Act
established the Sex Offender Registration and Notification
Act (“SORNA”). 42 U.S.C. §§ 16911, 16913. SORNA basically requires that sex offenders register their whereabouts
within three business days after their release from imprisonment, and keep their registrations current by updating their
registrations within three business days of moving to a new
residence, gaining new employment, or entering a new
school. Id. Failure to register pursuant to SORNA, or to keep
one’s registration current, is a continuing offense. See United
States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010).
The criminal penalties for failing to register pursuant to
SORNA in 18 U.S.C. § 2250(a) do “not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date.” United States v. Begay, 622 F.3d 1187, 1195 (9th
Cir. 2010) (citation omitted).
Clements was convicted of two counts of unlawful sexual
penetration with a foreign object, in violation of Oregon
Revised Statute § 163.411, in Oregon state court on June 3,
1998. SORNA was not enacted until July 27, 2006. On February 28, 2007, the Attorney General promulgated an interim
regulation that applied the registration requirements of
SORNA to defendants convicted of certain sexual offenses

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prior to the enactment of SORNA, thus making SORNA
retroactive. 72 Fed. Reg. 8894. The superseding indictment
charged that Clements failed to comply with the requirements
of SORNA on or about February 15, 2008, when he “knowingly failed to register and update a registration” as a sex
offender within three business days of relocating and traveling
in interstate commerce to Arizona on or about October 5,
2007. Clements challenges the legality of the Attorney General’s interim regulation for failure to comply with the Administrative Procedure Act (the “APA”).
[1] In United States v. Valverde, 628 F.3d 1159, 1168-69
(9th Cir. 2010), we held that for persons such as Clements,
who were convicted of sex offenses prior to SORNA’s enactment, SORNA’s registration requirements did not become
effective until August 1, 2008,1 because the Attorney General’s interim regulation did not comply with the APA.
[2] Accordingly, we reverse and remand this case for dismissal of the indictment. Upon his release from imprisonment, Clements will be subject to the provisions of SORNA
and will then need to register. In light of our disposition, we
need not reach Clements’s other challenges to his conviction.
REVERSED AND REMANDED.

1
August 1, 2008 is thirty days after the Attorney General published
guidelines that accorded with the APA’s requirements and announced
SORNA’s retroactive applicability. Valverde, at 1167; see 5 U.S.C. § 553;
Office of the Attorney General, The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38,030, 38,046-47 (July 2,
2008).

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O’SCANNLAIN, Circuit Judge, dissenting:
This Court has previously held that the Sex Offender Registration and Notification Act (“SORNA”) does not apply to
sex offenders convicted pre-SORNA unless and until the
Attorney General (“AG”) promulgates an administrative rule
saying that it does. See United States v. Valverde, 628 F.3d
1159, 1168-69 (9th Cir. 2010). We also held that the AG’s
attempt to promulgate such a rule (the “Interim Rule”) was
void because there was not “good cause” to issue it without
first complying with the “notice and comment” requirements
of the Administrative Procedure Act (“APA”). See id. Instead,
we determined that SORNA did not become effective for preSORNA offenders until the AG promulgated a final regulation to that effect. See id.
We are bound by these rulings and I have concurred in the
Court’s disposition to that effect. But it now appears that the
Supreme Court has granted certiorari in a nearly identical case
out of the Third Circuit, see Reynolds v. United States, 131 S.
Ct. 1043 (2011), and the United States has asked us to stay the
instant appeal until the Supreme Court has rendered its decision. Because the Supreme Court will definitively decide this
question, I respectfully dissent from the majority’s decision to
deny the government’s motion. See Landis v. N. Am. Co., 299
U.S. 248, 254-55 (1936) (recognizing a court’s inherent
power to stay proceedings pending a decision by the Supreme
Court in another case).
I
I am particularly inclined to grant a stay because I believe
the Supreme Court’s decision in Reynolds may well impact
our decision in Valverde. In Reynolds, the Court will resolve
a deep circuit split as to whether SORNA applies, on its own
force, to defendants, like Clements, who were registered sex
offenders in one state before Congress enacted SORNA,
moved to another state after Congress enacted SORNA, failed

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to update their registration, and were indicted before the AG’s
final regulation on retroactivity took effect. If SORNA does
so apply, then the Interim Rule would be superfluous, and any
procedural error in its promulgation would be irrelevant to
this case.
II
The relevant portion of SORNA provides:
(a) In general
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender
resides, where the offender is an employee, and
where the offender is a student. For initial registration purposes only, a sex offender shall also register
in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration
The sex offender shall initially register—
(1) before completing a sentence of imprisonment
with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days
after each change of name, residence, employment,
or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this

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section and inform that jurisdiction of all changes in
the information required for that offender in the sex
offender registry. That jurisdiction shall immediately
provide that information to all other jurisdictions in
which the offender is required to register.
(d) Initial registration of sex offenders unable to
comply with subsection (b) of this section
The Attorney General shall have the authority to
specify the applicability of the requirements of this
subchapter to sex offenders convicted before the
enactment of this chapter or its implementation in a
particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders and for other
categories of sex offenders who are unable to comply with subsection (b) of this section.
42 U.S.C. § 16913.
The courts of appeals which have required AG action
before applying SORNA retroactively have focused on subsection (d). They correctly read that provision as giving the
AG authority to specify whether and to what extent SORNA
applies to any and all sex offenders who were convicted preSORNA.
A
But just because the AG has “the authority” to issue rules
regarding SORNA’s retroactive applicability does not mean
that he is required to exercise it. By phrasing the AG’s power
over retroactivity in permissive rather than mandatory terms,
SORNA contemplated a regime without AG guidance. Within
that regime, retroactive applicability could be determined only
by subsection (a)’s clear command that “[a] sex offender shall
register, and keep the registration current, in each jurisdiction
where the offender resides.” This clause makes no exceptions

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for sex offenders who have already been convicted. Instead,
SORNA specifically defines “sex offender” as “an individual
who was convicted of a sex offense.” Id. § 16911(1) (emphasis added); see also Carr v. United States, 130 S. Ct. 2229,
2236 (2010) (noting that the Supreme Court “ha[s] frequently
looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach”).
Structure confirms text. Subsection (a) states the two main
requirements SORNA imposes on sex offenders: they must
register and they must keep that registration current. Subsections (b) and (c) provide deadlines for meeting those obligations. It would be anomalous for subsection (d) then to negate
subsection (a) by creating an exception so large that it swallows its rule.
B
Finally, reading subsection (d) as exempting pre-SORNA
convicted sex offenders from SORNA’s registration requirements would undermine Congress’s stated purpose of “establish[ing] a comprehensive national system for the registration
of [sex] offenders.” 42 U.S.C. § 16901. As Judge Gorsuch put
it, a sex offender registry that excluded all then-existing sex
offenders would hardly be “comprehensive,” “unless Congress’s purpose was to create a comprehensive registration
regime for 22nd century sex offenders.” United States v.
Hinckley, 550 F.3d 926, 945 (10th Cir. 2008) (Gorsuch, J.,
concurring).
Accordingly, it appears that subsection (a) requires all sex
offenders to register and to keep their registration current, and
subsection (d) merely grants the AG the authority to make
exceptions for previously convicted sex offenders if he so
chooses. Thus, even if the Interim Rule were invalid for failure to comply with the APA’s notice and comment procedures, such fact does not help Clements because it served only

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to make indisputably clear what was already established by
the text.
III
Our decision in Valverde focused almost entirely on
whether the Interim Rule was valid, and did not explicitly
consider the argument that SORNA applies retroactively even
without administrative action. The Supreme Court will decide
the latter question in Reynolds. Because it may possibly do so
in a way that conflicts with our assumption in Valverde, I
would wait for the Supreme Court’s guidance. Therefore, I
respectfully dissent from our order denying the government’s
motion to stay consideration of this appeal.