USA -v- Smith

6-13-2007 West Virginia:

USA -v- Smith
528 F.Supp.2d 615 (2007)


On November 16, 1995, Mr. Smith was convicted of three counts of second degree sexual assault in violation of section 61-8B-4 of the West Virginia Code. On July 31, 1996, he was sentenced to three concurrent terms of not less than ten nor more than twenty-five years imprisonment. At the time of his release on parole on August 8, 2005, he was given notice of his obligation to register as a sex offender under West Virginia law.

The defendant traveled to Florida in July 2006. On July 27, 2006 President Bush signed into law the Adam Walsh Child Protection and Safety Act, which contains the Sex Offender Registration and Notification Act ("SORNA"). Later, the defendant traveled to Illinois. Sometime prior to November 6, 2006, the defendant returned to Florida. He did not register as a sex offender in Illinois or Florida, in violation of West Virginia law. He was arrested in Florida as a fugitive on November 24, 2006. The underlying charges were violations of his state parole and the West Virginia offense of failing to register as a sex offender. On April 24, 2007, a federal grand jury sitting in Huntington, West Virginia, returned a one-count indictment charging the defendant with a violation of 18 U.S.C. § 2250 on November 24, 2006 by "knowingly fail [ing] to register and update his registration as required by the Sex Offender Registration and Notification Act." On May 24, 2007, the defendant filed a motion in this court to dismiss the indictment.

In his motion to dismiss, the defendant challenges the application and constitutionality of 18 U.S.C. § 2250. He argues that SORNA was not applicable to him at the time the indictment alleges he failed to register as a sex offender. Alternatively, he argues that the statute is unconstitutional in that it violates the nondelegation doctrine, the due process clause, and the commerce clause.

I FIND that the statute as enacted in July 2006 was not retroactive on its face. I further FIND that Congress assigned the question of retroactivity under the statute to the Attorney General. The Attorney General did not promulgate any regulations with respect to retroactivity until February 2007. The statute, the Attorney General’s interim rule, and the Guidelines all support my conclusion that defendant was not obligated to register under the statute as enacted in July 2006. Accordingly, I GRANT the defendant’s motion to dismiss. I find it unnecessary to address the constitutional questions raised by the defendant. Article: Congratulations to AFPD Ed Weiss who scored a dismissal of a failure to register prosecution brought under SORNA in the S.D. of W.Va!

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