The opinion of the court was delivered by: Judge Cathy Bissoon
On January 25, 2012, Defendant Boyd Dale Stacey ("Defendant") was charged in a one-count indictment with failing to register as a convicted a sex offender between on or about November 4, 2011, and in or around January of 2012, in violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a). (Doc. 1 at 1). Defendant has submitted a motion to dismiss the indictment, in which he raises a variety of constitutional issues, and to which the government has responded. (Docs. 28 ad 30). Additionally, pursuant to the Order of this Court, both parties filed supplemental briefs discussing the impact on this case, if any, of the Court of Appeals for the Third Circuit's recent decision in United States v. Reynolds, 710 F.3d 498 (3d Cir. 2013) ("Reynolds II"). See (Docs. 31 and 32).
The indictment alleges that Defendant was convicted in 2000 in Hillsborough County, Florida, of computer pornography and lewd or lascivious conduct, in violation of Fla. Stat. §§ 847.0135(2) and 800.04(6)(a)(2) and (b). In response to the instant motion, the government submits evidence that, upon his release from confinement for the above convictions, Defendant was required to register as a sex offender pursuant to state law, was informed of this requirement and, indeed did so register. See (Docs. 30-5 -- 30-6). The 2002 notification on the record explicitly states that Defendant had an obligation to register if he moved to another jurisdiction. (Doc 30-6).
At some point Defendant moved to Pennsylvania, but allegedly failed to register in that state. In 2007 he was charged with failing to register, in violation of former 18 Pa. Cons. Stat. § 4915(a)(1), was convicted of the same in 2008, and was sentenced to three years of probation. (Doc. 30-10 at 2-3). The government submits further evidence indicating that Defendant complied with his registration requirements in Pennsylvania, completing annual registration forms from 2007 until late 2010. (Docs. 30-12, 30-14 -- 30-16). The signed registration form from December of 2009 submitted by the government includes a warning that, if Defendant moves to a different state, he is required to register with appropriate authorities in that state. See (Doc. 30-14 at 3).
The government provides additional evidence that Defendant did not complete registration in Pennsylvania at the end of 2011, as required by state law. Defendant admits that he had moved to Ohio. (Doc. 28 at 3). The government alleges that, after moving to Ohio, Defendant did not register as a sex offender in that state. Defendant was located in Ohio in early 2012, and charged with failing to comply with SORNA's registration requirement.
A legal analysis of Defendant's arguments is as follows.
Defendant first argues that SORNA is unconstitutional when applied to pre-enactment offenders, like himself.*fn1 Specifically, it is his contention that Congress, in allowing the Attorney General latitude to promulgate regulations applying SORNA's registration requirements to pre-Act offenders, pursuant to 42 U.S.C. § 16913, violated the non-delegation doctrine.
In Reynolds v. United States ("Reynolds"), --- U.S. ----, 132 S. Ct. 975 (2012), the Supreme Court was presented with a similar non-delegation attack against SORNA. While the Court explicitly recognized the existence of this argument in its opinion, it went on to hold that SORNA's "registration requirements do not apply to pre-Act offenders until the Attorney General so specifies." 132 S. Ct. at 980, 984. Implicit in this conclusion is that Congress's grant of this authority to the Attorney General did not violate the non-delegation doctrine. Simply put, as a matter of logic, the issue of the propriety of any regulations to be promulgated by the Attorney General would be moot if Congress lacked the authority to delegate this task to the Attorney General in the first place. Indeed, the Court of Appeals for the Eighth Circuit recently has held that, even in the wake of the Supreme Court's decision in Reynolds, SORNA's registration requirement is not violative of the non-delegation doctrine when applied to pre-Act offenders. United States v. Fernandez, 710 F.3d 847, 848-50 (8th Cir. 2013).
Moreover, the Attorney General has promulgated regulations specifying that pre-Act offenders are subject to SORNA's registration requirement. The government, in its response, cites to the Interim Rule as support for this contention. See (Doc. 30 at 9). While the Court of Appeals for the Third Circuit invalidated the Interim Rule as violative of the Administrative Procedure Act in Reynolds II, see 710 F.3d at 594, that Rule was replaced by the so-called Final Rule, at the latest, on January 28, 2011. 73 Fed. Reg. 38030; 75 Fed. Reg. 81849-01, 81850 (Dec. 29, 2010). Given that Defendant's alleged bad acts took place between on or about November 4, 2011, and January, 2012, see (Doc. 1 at 1), Reynolds II provides little support for Defendant's attacks on the propriety of the regulations applying SORNA to pre-Act offenders.*fn2
It also is noteworthy that, on remand, the Court of Appeals for the Third Circuit explicitly did not reach the non-delegation argument, and appears never to have addressed it on the merits. See Reynolds II, 710 F.3d at 506. However, as this Court has noted after the Supreme Court's decision in Reynolds, "[w]hile other circuit courts' decisions are not binding on this Court, we note that all of the circuit courts which have done so have concluded that the Act does not run afoul of the non-delegation doctrine." United States v. Honaker, No. 11-cr-216, 2012 WL 2952367, at *3 (W.D. Pa. July 19, 2012) (collecting cases). Defendant has provided no persuasive ...