Fourth Circuit Rules Maryland’s Non-Adoption of SORNA No Excuse for Non-Registration

by Derek Gilna

Unfortunately for Brian Lee Gould, a convicted sex offender, the 4th Circuit has upheld his new conviction for non-registration under the Sex Offender Registration and Notification Act, (SORNA) Pub. L. No. 109-248, Sections 101-155, 120 Stat. 587, 590-611, 2006) (codified at 42 U.S.C. Section 16901 et seq. and 18 U.S.C. Section 2250), agreeing with the prosecutors that he still had an obligation to register even though “Maryland had not yet implemented SORNA’s enhanced registration requirements.”

Gould’s original sex offense conviction was in the District of Columbia, and he moved to Maryland after SORNA had been enacted by Congress, but before Maryland had implemented SORNA. After his arrest for failure to register in Maryland, he argued that his conviction should be overturned because he did not “knowingly” fail to register nor was he specifically instructed to because Maryland had not enacted SORNA, that he was “unable” to initially register, that he was not specifically instructed to register by SORNA or the regulations promulgated by the Attorney General, his due process rights were violated, the Attorney General did not follow the Administrative Procedure Act (APA) by promulgating interim regulations at 28 C.F.R. Section 72 (2007) without notice or comment, and that SORNA violated the Commerce clause, by regulating something not related to commerce.

The court held, as have all jurisdictions who have considered the issue, that the duty to register under SORNA is not dependent upon the individual state where the convicted sex offender resides to have specifically implemented SORNA, noting that “the structure of SORNA’s requirements indicates a separateness of the sex offender’s individual duty to register and the State’s duty to enhance its registries and standards as mandated by the Act…We conclude that the requirement imposed on individuals to register is independent of the requirement imposed on the states…” It also ruled that SORNA did not violate the Constitution’s Ex Post Facto Clause, that the Attorney General’s Interim Rules were properly published and implemented under the “good cause” exception, and that the commerce clause objection must fail citing U.S .v. Lopez, 514 U.S. 549, 558-59 (1995), as an activity having “a substantial relation to interstate commerce.”

The dissent, however, did raise the interesting issue that the Attorney General’s promulgation of 28 C.F.R. Section 72.3 was in violation of the APA, by not being “adopted in substantial compliance with the requirements of the APA.” It also stated that the rule was invalid and not excused by the “good-cause” exception, and that this warranted reversal of Gould’s lower-court conviction. See: United States v. Gould, 568 F.3d 459 (4th Cir. 2009).

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