US v Doshak

12-29-2009 Ohio:

US v Doshak
No. 08-3141.

Charles A. Doshak appeals his conviction for failing to register pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250. He argues that SORNA's provisions do not apply to him. He also claims that SORNA violates the Ex Post Facto Clause, the Due Process Clause, and the Spending Clause, and is an impermissible delegation of authority to the Attorney General. Finally, he argues that the Attorney General's interim rule on retroactivity violates the Administrative Procedures Act and principles of federalism.

Because SORNA does not apply to Doshak, we VACATE and REMAND. Consequently, we need not address Doshak's other arguments.

I. Factual Background
In 1993, Doshak was convicted of one count of corruption of a minor, pursuant to Ohio Revised Code § 2907.04, a third-degree felony. Several years later, in 1997, Ohio's sexual classification and registration statute went into effect. Although Doshak was given notice of his duty to register under this law, he failed to do so. Consequently, he was convicted by an Ohio court in 2002 for failure to register.

On July 27, 2006, SORNA became effective. In October of that same year, Doshak finally signed a registration form indicating that his residence was in Akron, Ohio. The following month, he left the state to live with his girlfriend in Arizona. He did not inform Ohio officials of his move or register as a sex offender in Arizona.

On February 28, 2007, the United States Attorney General promulgated an emergency regulation that purportedly applied SORNA's registration requirements to persons convicted before July 27, 2006. See 28 C.F.R. § 72.3. The regulation sought to make SORNA's registration requirements immediately effective against persons who, like Doshak, were convicted of sex crimes prior to SORNA's effective date.

On March 20, 2007, Doshak was arrested in Arizona and subsequently indicted by a federal grand jury. Specifically, the indictment alleged that he violated 18 U.S.C. § 2250 by, "on or about October 26, 2006, through on or about March 20, 2007," traveling in interstate commerce and knowingly failing to register and update his registration. After the district court denied his motion to dismiss, he entered a conditional plea agreement, expressly reserving his right to appeal the order. He was sentenced to twenty-seven months' imprisonment and five years' supervised release.

... ... ...

Thus, the only issue before this court is whether Doshak was subject to SORNA's requirements during the period covered by his indictment. His indictment charged failure to register from October 26, 2006, through March 20, 2007. In Cain, we held that the Attorney General's regulation was not effective against Cain, because his indictment covered a period ending on March 28, 2007, "less than thirty days after promulgation of the regulation, and a month before the close of the comment period." Cain, 583 F.3d at 420. Similarly, Doshak's indictment covered a period ending March 20, 2007. Thus, Doshak was not subject to SORNA's criminal sanctions during the period alleged in the indictment. His conviction, therefore, must be vacated.1

VACATED and REMANDED.