12-27-2010 California:USA v Valverde
UPDATE: Valverde has been appealed to the US Sup ct and they have denied the appeal, therefore this is a good decision to rely on as to the effective date of SORNA
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. Article: Sex Offender Registration Act Not Fully Retroactive
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