SCOTUS Resovles One Split on Regarding SORNA and Dodges Another
Per Carr v. U.S., --- S.Ct. ----, 2010 WL 2160783 (2010):
In view of the division among the Circuits as to the meaning of § 2250's “travel” requirement,FN1 we granted certiorari, 557 U.S. ----, 130 S.Ct. 47, 174 L.Ed.2d 631 (2009), to decide the statute's applicability to pre-SORNA travel and, if necessary, to consider the statute's compliance with the Ex Post Facto Clause.FN2
FN1. While the Seventh and Tenth Circuits have confronted the question directly, other Circuits have also touched on it. Aligning itself with the Seventh Circuit, the Eleventh Circuit has analogized 18 U.S.C. § 2250(a) to the felon-in-possession statute, § 922(g), and applied it to a sex offender who traveled before SORNA became applicable to him. United States v. Dumont, 555 F.3d 1288, 1291-1292 (2009) (per curiam). In contrast, the Eighth Circuit has stated in dictum that § 2250(a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA.” United States v. May, 535 F.3d 912, 920 (2008) (emphasis added).
FN2. There is a separate conflict among the Courts of Appeals as to when SORNA's registration requirements became applicable to persons convicted of sex offenses prior to the statute's enactment. Several Circuits, including the Seventh, have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 28 CFR § 72.3, 72 Fed.Reg. 8897, on February 28, 2007. See, e.g., United States v. Hatcher, 560 F.3d 222, 226-229 (C.A.4 2009); United States v. Cain, 583 F.3d 408, 414-419 (C.A.6 2009); United States v. Dixon, 551 F.3d 578, 582 (C.A.7 2008) (case below); United States v. Madera, 528 F.3d 852, 857-859 (C.A.11 2008) (per curiam). Other Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act's registration requirements upon the statute's enactment in July 2006. See, e.g., May, 535 F.3d, at 915-919; United States v. Hinckley, 550 F.3d 926, 929-935 (C.A.10 2008). Because Carr traveled from Alabama to Indiana before both the enactment of SORNA and the Attorney General's regulation, we have no occasion to consider whether a pre-SORNA sex offender whose travel and failure to register occurred between July 2006 and February 2007 is subject to liability under § 2250, and we express no view on that question. We similarly express no view as to whether § 72.3 was properly promulgated-a question that has also divided the Circuits. Compare Cain, 583 F.3d, at 419-424 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the notice-and-comment and publication requirements of the Administrative Procedure Act (APA)), with United States v. Dean, 604 F.3d 1275, ---- - ----, 2010 WL 1687618 *3-*8 (C.A.11 2010) (finding no APA violation); United States v. Gould, 568 F.3d 459, 469-470 (C.A.4 2009) (same).