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US v Utesch

3-2-2010 Tennessee:

US v Utesch
596 F.3d 302 (2010)

John F. Utesch ("Utesch") appeals the district court's denial of his motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 ("SORNA" or "the Act"), Pub.L. 109-248. Utesch pleaded guilty after reserving his right to challenge the Act and its application to him on constitutional and other grounds. The district court sentenced him to three months of incarceration and ten years of supervised release.

On appeal, Utesch argues that
  • (1) SORNA cannot apply to him without violating the Ex Post Facto and Due Process Clauses because the three states among which he moved have not implemented the Act;
  • (2) his conviction violates due process because the government failed to notify him of his obligation to register under the Act;
  • (3) SORNA's grant of authority to the Attorney General to make the Act retroactive violates the nondelegation doctrine;
  • (4) the Attorney General's regulation making SORNA retroactive violated the Administrative Procedure Act ("APA");
  • (5) SORNA's application under 18 U.S.C. § 2250(a)(2)(A) violates the Commerce Clause;
  • (6) SORNA's application under 18 U.S.C. § 2250(a)(2)(B) violates the Commerce Clause and Ex Post Facto Clause; and
  • (7) SORNA violates the Tenth Amendment by requiring states to implement its provisions.

Utesch also challenges the district court's imposition of certain special conditions of supervised release on the grounds that they are not reasonably related to the 18 U.S.C. § 3553(a) sentencing factors, they involve greater deprivation than necessary to achieve the purposes of sentencing, and they are inconsistent with policy statements of the U.S. Sentencing Commission.

As explained below, we REVERSE the district court's order based on the failure of the Attorney General's retroactivity regulation to conform to the requirements of the APA. Accordingly, we do not reach Utesch's constitutional challenges, and we need not address his conditions of release.

... ... ...


Because the first properly promulgated regulation making SORNA retroactive became effective eight-and-a-half months after the final date covered by Utesch's indictment, the district court should have dismissed the indictment.

Accordingly, we REVERSE the district court's denial of Utesch's motion to dismiss the indictment, and we VACATE his conviction and sentence.

We therefore do not reach Utesch's constitutional challenges to SORNA or his objections to the special conditions of release imposed by the district court.

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