The opinion of the court was delivered by: William K. Sessions III U.S. District Court Judge
Defendant's Motion to Dismiss the Indictment The Indictment charges David Mullins with failing to register or update his registration as a sex offender after travelling in interstate commerce between approximately January and April 2008. ECF No. 3. Mullins filed a motion to dismiss the indictment, ECF No. 21, raising a number of constitutional challenges to the law under which he is charged, The Sex Offender Registration and Notification Act ("SORNA" or the "Act"), 42 U.S.C. §§ 16901-62, 18 U.S.C. § 2250, all of which have been rejected by the Second Circuit.*fn1 Mullins also raises a statutory argument based on a provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, posing a question not yet settled by the Circuit: whether SORNA criminalized his conduct at the time charged. As the Court agrees with Mullins that SORNA did not validly apply to him between January and April 2008, it grants his motion to dismiss. However, the Court will stay implementation of this ruling thirty days so the government may determine whether to file an appeal and request an extension of the stay.
Mullins was convicted in Indiana in 1985 on two counts of the state offense of child molesting, receiving a twenty-five year sentence. In January 2008, Mullins moved to Vermont with his wife, where they lived with her sister. According to the government, Mullins did not register in this state as a sex offender until April 22, 2008, after his wife's sister discovered his criminal history and reported him to the authorities. In October 2011, Mullins was convicted in Massachusetts state court on three counts related to an attempted rape, earning him a five to seven year sentence. Several months prior to the Massachusetts convictions, the government brought the instant charge, basing Mullins's SORNA violation on his 2008 failure to register after travelling to Vermont.
SORNA was enacted on July 27, 2006 as Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-- 248, Title I, §§ 101-55, 120 Stat. 587, 589-611 (2006). It was the latest in a line of legislation aimed at addressing the national problem posed by recidivist sex offenders, particularly those who might cross state borders to evade local registration requirements. See Carr v. United States, 130 S. Ct. 2229, 2238-39 (2010). Congress's steady program has been to guide and enhance existing state-level enforcement. Id. at 2238. In 1994, it set national standards for state sex offender registries, and also conditioned award of certain federal funds on states adopting a criminal penalty for sex offenders' failure to register as required. Id. at 2238-39; see Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. No. 103--322, Tit. XVII, § 170101(a)-(c), (f), 108 Stat. 1796, 2038-42 (1994). That approach bore fruit. By 1996, every state had enacted its own mandatory registration provisions for convicted sex offenders, versions of what is generically known as "Megan's Law." See Smith v. Doe, 538 U.S. 84, 89-90 (2003).*fn2
Also in 1996, Congress made it a federal offense for any person required to register "who changes address to a State other than the State in which the person resided at the time of the immediately preceding registration," and "knowingly fails to" meet the registration requirement within ten days. Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. No. 104--236, § 2, 110 Stat. 3093, 3095-96 (1996); Carr, 130 S. Ct. at 2239. Beginning in 1998, first time violators of the federal crime faced up to one year in prison and repeat offenders could earn up to ten years in confinement. 42 U.S.C. § 14072(i) (1999). While the details are not material here, Congress continued to make improvements to its regime. See The Jacob Wetterling Improvements Act of 1997, Pub. L. No. 105-119, § 15, 111 Stat. 2440, 2461-67; Protection of Children from Sexual Predators Act of 1998, Pub. L. No. 105-314, § 607, 112 Stat. 2974, 2985-86 (1998); The Campus Sex Crimes Prevention Act, Pub. L. No. 106-386, Title VI, § 1601, 114 Stat. 1464, 1537-38 (2000); Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today (PROTECT) Act of 2003, Pub. L. No. 108-21, Title VI, §§ 604-06, 117 Stat. 650, 688 (2003). In passing SORNA in 2006, Congress was motivated by the offenders were still escaping state registration requirements via interstate travel. See United States v. Van Buren, 599 F.3d 170, 175 (2d Cir.), cert. denied, 131 S. Ct. 483 (2010). In particular, congressional supporters "placed considerable importance upon the registration of pre-Act offenders," emphasizing that more than 100,000 had gone "'missing.'" Reynolds v. United States, 132 S. Ct. 975, 982-83 (2012) (citing legislative history). It thus sought to establish a "comprehensive national registration system." Van Buren, 599 F.3d at 175. SORNA was "enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks." Carr, 130 S. Ct. at 2240. In doing so, Congress largely built within the existing framework, continuing its focus on strengthening state efforts to combat recidivist sex offenders. Id. at 2239. It tied to federal highway funds a heightened state criminal penalty for failure to follow registration requirements. Id.; see 42 U.S.C. § 16913(e). It mandated that federal and state sex offenders register with their controlling jurisdictions and timely update their information as it changes, 42 U.S.C. §§ 16911, 16913(a). See Reynolds, 132 S. Ct. at 978.
It also augmented the federal crime for failure to register, setting the penalty at up to ten years in prison for any offender, and added a crime of violence enhancement of between five and thirty years. 18 U.S.C. § 2250(a), (c). The law, as it concerns Mullins, applies to one "required to register" under SORNA who travels in interstate commerce, but fails to register or update his registration as SORNA requires. Id. § 2250(a). Congress did not decide, as the Supreme Court made clear in its decision last term in Reynolds v. United States, whether that criminal sanction should apply equally to sex offenders with registration obligations springing from sex offenses committed prior to SORNA's passage. 132 S. Ct. at 984; see 42 U.S.C. § 16913(d). Instead, it gave the Attorney General "the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction," 42 U.S.C. § 16913(d). See Reynolds, 132 S. Ct. at 984. It also empowered the Attorney General "to prescribe rules for the registration of any such sex offenders." 42 U.S.C. § 16913(d).
In February 2007, Attorney General Gonzales issued an interim rule that purported to apply SORNA to pre-Act sex offenders. Applicability of the Sex Offender Registration and Notification Act (the "Interim Rule"), 72 Fed. Reg. 8894-01 (Feb. 28, 2007) (codified at 28 C.F.R. §§ 72.1-72.3 (2007)). In imposing that rule, the Attorney General claimed a waiver from the APA's publication and delayed implementation requirements, under its "good cause" exceptions. Id. at 8896; see 5 U.S.C. § 553(b)(B), (d)(3). The Interim Rule was intended "to eliminate any possible uncertainty about the applicability of the Act's requirements-and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required-to sex offenders whose predicate convictions predate the enactment of SORNA." 72 Fed. Reg. at 8896. It also relied on the "practical dangers" of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators who have not been registered and tracked as provided by SORNA.
Id. at 8896-97. To provide advance publication of the rule, engage in notice and comment rulemaking before it became effective, or to delay implementation of the regulation thirty days, as required by the APA, would "accordingly be contrary to the public interest." Id. at 8897. The Attorney General did, however, permit "post-promulgation public comments." Id. at 8896.
Binding as of August 1, 2008, Attorney General Mukasey reaffirmed SORNA's retroactive application and issued a more comprehensive set of interpretive guidelines after full opportunity for notice and comment. The Nat'l Guidelines for Sex Offender Registration and Notification (the "SMART Guidelines"), 73 Fed. Reg. 38030-01 (July 2, 2008). This Court has already followed every circuit to reach the question in holding that the Attorney General exercised his authority to declare the law applied to pre-Act offenders, at the latest, when the SMART Guidelines took effect. Lott, 2012 WL 2048218, at *5; United States v. Mee, No. 5:11-cr-101, 2012 WL 1638436, at *6 (D. Vt. May 9, 2012).*fn3
In this case, the indictment charges Mullins with violating SORNA at least three months prior to the SMART Guidelines taking effect. SORNA could only have applied to him if the Interim Rule, issued about a year before the charged period, was a valid exercise of the Attorney General's authority.
I.Whether the Interim Rule may be upheld under the APA's Good Cause Exceptions
In examining the validity of the Interim Rule, "the Court is limited to reviewing the Attorney General's proffered justification for good cause." United States v. Cotton, 760 F. Supp. 2d 116, 130 (D.D.C. 2011); see Natural Res. Def. Council v. Abraham, 355 F.3d 179, 205 n.13 (2d Cir. 2004) ("'It is well-established that an agency's action must be upheld, if at all, on the basis articulated by the agency itself.'") (quoting Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 50 (1983)). The Interim Rule may be may be set aside only if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A); see Zhang v. Slattery, 55 F.3d 732, 744 (2d Cir. 1995), abrogated on other grounds by statute, 8 U.S.C. § 1101(a)(2).*fn4
A. The Good Cause Exceptions
The APA typically requires that "[g]eneral notice of proposed rule
making shall be published in the Federal Register." 5 U.S.C. § 553(b)
(the "Publication Requirement"). Afterward, "the agency shall give
interested persons an opportunity to participate in the rule making
through submission of written data, views, or arguments with or without opportunity for
oral presentation." Id. § 553(c). After publishing the final version
of the rule, the agency must allow at least thirty days to elapse
before it takes effect. Id. § 553(d) (the "Delay Requirement"). The
Publication and Delay Requirements each may be waived for good cause.
See id. § 553(b)(B), (d)(3).*fn5
However, both exceptions "should be 'narrowly construed and
only reluctantly countenanced.'" Zhang, 55 F.3d at 744 (quoting
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