US v Stevenson

2-23-2012 Sixth Circuit:

US v Stevenson
(676 F.3d 557 (2012)

This is a BAD decision for some registrants, and will not affect most folks. This decision pertains to some Pre-SORNA cases ONLY. The essence of this is that, the effective date of retro-activity of SORNA was changed to a date older than it was prior to this decision. And as you can see below, at least these two cases will again face failure to register charges as a result.

The court said:
Carlos Flowers and Derick Stevenson were both convicted of state-law sex offenses requiring them to register before the enactment of the federal Sex Offender Registration and Notification Act ("SORNA"), 120 Stat. 590, 42 U.S.C. § 16901 et seq. (2006 ed. and Supp. III).

Both were indicted for traveling in interstate commerce in 2009 and knowingly failing to update their registrations. The district court dismissed each of their indictments, holding that SORNA had not yet been made retroactively applicable to defendants like Flowers and Stevenson.

The United States timely appealed, and their cases were consolidated. We reaffirm our analysis in United States v. Utesch, 596 F.3d 302 (6th Cir. 2010), which was decided after the district court issued its opinions, and hold that SORNA became retroactively effective on August 1, 2008. We therefore REVERSE.

.....

For all these reasons, the SMART guidelines can and do have the force and effect of law, and they establish that SORNA became retroactive as of August 1, 2008. The Attorney General was properly delegated authority by Congress to enact the substantive rule regarding retroactivity and the authority to implement SORNA.

The SMART guidelines clearly set forth the rule on retroactivity and the authority to issue such a rule and were properly promulgated pursuant to all of the other notice-and-comment requirements in the APA.8 They became final on August 1, 2008, thirty days after they were published. See Utesch, 596 F.3d at 310-11; Trent, 654 F.3d at 582-83.

Having found no compelling argument to the contrary, we hold today what we first concluded in Utesch: SORNA became retroactive to pre-enactment offenders on August 1, 2008. The district court therefore erred in dismissing the indictments of Flowers and Stevenson, who traveled after the SMART guidelines became final.

III. CONCLUSION For the foregoing reasons, we REVERSE the district court's dismissal of the indictments against Flowers and Stevenson.