12‐5002‐cr United States v. Lott

In the United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2013

ARGUED: OCTOBER 29, 2013 DECIDED: APRIL 24, 2014

No. 12‐5002‐cr

UNITED STATES OF AMERICA, Appellee,

v.

CORY LOTT, Defendant‐Appellant. ________

Before: WALKER, CABRANES, and PARKER, Circuit Judges. ________

Cory Lott (“Lott”) appeals from the 63‐month sentence

imposed in the United States District Court for the District of

Vermont (William K. Sessions, III, District Judge), following his

guilty plea for failure to register as a sex offender in violation of

(a). Lott contends that the district court should have

dismissed the indictment because at the time of Lott’s interstate

1 No. 12‐5022‐cr

travel, the Sex Offender Registration and Notification Act

(“SORNA”), Pub. L. No. 109‐248,

(2006) (codified at

and

et seq.), was not applicable to pre‐

Act offenders such as Lott. Lott also contends that the district court

erroneously applied an eight‐level sentencing enhancement under

the United States Sentencing Guidelines (“U.S.S.G.”) section

2A3.5(b)(1)(C). We reject Lott’s arguments and AFFIRM the

judgment of the district court.

________

DAVID L. MCCOLGIN (Michael L. Desautels, on the brief), Federal Public Defender’s Office, District of Vermont, Burlington, VT, for Defendant‐Appellant.

MICHAEL DRESCHER, Assistant United States Attorney (Tristram J. Coffin, United States Attorney for the District of Vermont, William B. Darrow and Gregory L. Waples, Assistant United States Attorneys, on the brief), Burlington, VT, for Appellee.

________

JOHN M. WALKER, JR. Circuit Judge:

Cory Lott (“Lott”) appeals from the 63‐month sentence

imposed in the United States District Court for the District of

Vermont (William K. Sessions, III, District Judge), following his

guilty plea to failure to register as a sex offender in violation of

(a). Lott contends that the district court should have

dismissed the indictment because at the time of Lott’s interstate

2 No. 12‐5022‐cr

travel, the Sex Offender Registration and Notification Act

(“SORNA”), Pub. L. No. 109‐248,

(2006) (codified at

and

et seq.), was not applicable to pre‐

Act offenders such as Lott. Lott also contends that the district court

erroneously applied an eight‐level sentencing enhancement under

the United States Sentencing Guidelines (“U.S.S.G.”) section

2A3.5(b)(1)(C). We reject Lott’s arguments and AFFIRM the

judgment of the district court.

BACKGROUND

In November 2001, Lott was convicted in New York of

attempted sexual abuse and sentenced to one year probation. As a

result of his conviction he was required under state law to register as

a sex offender in New York, but he failed to do so. In 2006, Congress

passed SORNA, which requires sex offenders to register in each

jurisdiction in which they reside, work, or go to school; however,

SORNA does not specify whether this requirement pertains to

offenders whose offenses predate SORNA’s 2006 effective date.

Lott eventually moved to South Carolina, where in 2009 he

was convicted under state law for failure to register. In 2010, Lott

moved to Vermont and failed to register, as the government alleges

was required by SORNA. In November 2010, Lott sexually assaulted

a 13‐year‐old girl and fled the state. In February 2011, Vermont

obtained an arrest warrant for Lott on a charge of lewd and

lascivious conduct in connection with this assault. In September

3 No. 12‐5022‐cr

2011, a federal grand jury returned an indictment alleging that Lott

had traveled to Vermont in late 2010 without registering as a sex

offender, in violation of SORNA,

(a). Twelve days

later, Lott pled guilty in Vermont state court to two misdemeanor

prohibited acts counts based on the assault. He was sentenced to six

to twelve months’ imprisonment.

Lott then moved to dismiss the federal indictment, raising a

number of challenges to the validity of SORNA as applied. The

district court denied the motion to dismiss. On August 6, 2012, Lott

pled guilty pursuant to a written plea agreement that preserved his

right to appeal his challenges to the application of SORNA. At

sentencing, the district court calculated the sentencing guidelines

range to be 63 to 78 months, including an eight‐level enhancement

pursuant to U.S.S.G. § 2A3.5(b)(1)(C) for committing a sex offense

against a minor while he was in failure‐to‐register status. Defense

counsel objected to the sentencing enhancement. The district court

overruled defense counsel’s objections and imposed a sentence of 63

months’ imprisonment.

Lott appeals the constitutionality of SORNA’s registration

requirement to conduct that preceded SORNA’s effective date and

also appeals the application of the eight‐level sentencing

enhancement.

4 No. 12‐5022‐cr

DISCUSSION

I. The Retroactivity of SORNA

A. SORNA

SORNA was enacted to “establish[] a comprehensive national

system for the registration of [sex] offenders.”

. The

Act “requires those convicted of certain sex crimes to provide state

governments with (and to update) information, such as names and

current addresses, for inclusion on state and federal sex offender

registries.” Reynolds v. United States,

(2012). “The

Act makes it a crime for a person who is ‘required to register’ under

the Act and who ‘travels in interstate or foreign commerce’ to

knowingly ‘fai[l] to register or update a registration.’”

(alteration

in original) (quoting

(a)).

The statute does not specify whether its registration

requirements apply retroactively to sex offenders who are convicted

prior to SORNA’s enactment. However, SORNA section 113(d)1

gives the Attorney General the “authority to specify the applicability

of the [registration] requirements . . . to sex offenders convicted

before the enactment” of SORNA. In 2012, the Supreme Court,

resolving a disagreement between circuit courts,2 and construing

(d). 1

2 Six Circuits had held that SORNA’s registration requirements did not apply to pre‐Act offenders unless and until the Attorney General so specified. United States v. Johnson,

, 922‐927 (5th Cir. 2011); United States v. Valverde,

, 1161‐62 (9th Cir. 2010); United States v. Cain,

, 414‐19 (6th Cir. 2009); United States v. Hatcher,

5 No. 12‐5022‐cr

section 113(d), held in Reynolds that SORNA’s “registration

requirements do not apply to pre‐Act offenders until the Attorney

General specifies that they do apply.”3

.

The Attorney General has issued three sets of regulations that

arguably adequately specify that SORNA’s registration

requirements apply to pre‐Act offenders: the “Interim Rule” in

February 2007,

(Feb. 28, 2007); the Sentencing,

Monitoring, Apprehending, Registering, and Tracking (“SMART”)

Guidelines in July 2008,

(July 2, 2008); and the

“Final Rule” in December 2010,

(Dec. 29, 2010).

The Final Rule postdates Lott’s travel to Vermont and is therefore

not applicable.

B. Validity of SMART Guidelines

Lott challenges the validity of both the Interim Rule and the

SMART Guidelines. Because we find that the SMART Guidelines

, 226‐229 (4th Cir. 2009); United States v. Dixon,

(7th Cir. 2008), rev’d on other grounds,

(2010); United States v. Madera,

, 857‐59 (11th Cir. 2008) (per curiam). Five Circuits, including our own, had held that the registration requirements applied from the date of the Act’s enactment, and prior to any such specification, at least with respect to pre‐Act offenders who had already registered under state law. United States v. Fuller,

(2d Cir. 2010); United States v. DiTomasso,

(1st Cir. 2010); United States v. Shenandoah,

(3d Cir. 2010); United States v. Hinckley,

(10th Cir. 2008); United States v. May,

, 918‐19 (8th Cir. 2008). 3 Reynolds did not address the question of whether the Attorney General had, in fact, taken any action “specif[ying]” SORNA’s retroactivity.

6 No. 12‐5022‐cr

validly extended SORNA’s applicability to pre‐Act offenders, we

need not decide whether the Interim Rule had the same effect.

As to the SMART Guidelines’ validity, Lott’s argument is

twofold. First, he argues that the SMART Guidelines are interpretive

rules rather than substantive rules because the Attorney General’s

authority to issue the guidelines flows from SORNA section 112(b)4

and because the Attorney General conceded this point. Substantive

rules independently have the force of law, but interpretative rules

can only clarify existing law. See United States v. Yuzary,

(2d Cir. 1995). If Lott is correct, then the SMART Guidelines

cannot validly specify that SORNA’s registration requirements

apply to pre‐Act offenders. Second, Lott claims that even if the

SMART Guidelines were issued pursuant to the Attorney General’s

substantive rulemaking authority, the Attorney General did not

comply with the notice‐and‐comment requirement of the

Administrative Procedure Act (“APA”),

. We disagree

with both of these arguments.

The SMART Guidelines were an act of substantive

rulemaking. The notice proposing the guidelines specifically stated:

“These proposed guidelines carry out a statutory directive to the

Attorney General, in section 112(b) of SORNA (

(b))

to issue guidelines to interpret and implement SORNA.”

(May 30, 2007). The reference to the Attorney General’s

4

(b).

7 No. 12‐5022‐cr

section 112(b) authority to “interpret and implement” SORNA does

not support Lott’s conclusion that the guidelines are interpretative.

Interpretive rules “do not create rights, but merely clarify an existing

statute or regulation.” N.Y. State Elec. & Gas Corp. v. Saranac Power

Partners, L.P.,

, 131 (2d Cir. 2001) (internal quotation

marks omitted). Substantive rules, however, “create new law,

right[s], or duties.” Id. Substantive rules “implement the statute.”

Chrysler Corp. v. Brown,

, 302‐03 (1979) (emphasis added).

See also Am. Broad. Cos., Inc. v. FCC,

, 32 (2d Cir. 1982)

(“The phrase ‘substantive rules adopted as authorized by law’

refers, of course, to rules issued by an agency to implement statutory

policy.”). By specifying that the Attorney General has the power to

“implement” SORNA, section 112(b) plainly gives the Attorney

General the authority to issue substantive rules.

Moreover, section 112(b)’s implementation power

incorporates section 113(d)’s authorization to the Attorney General

to “specify the applicability of the requirements of” SORNA to pre‐

Act offenders.

(d); see United States v. Whitlow,

(1st Cir. 2013) (“§ [112](b)’s interpret‐and‐implement

authority appears to subsume the narrower power to make

retroactivity determinations . . . .”); United States v. Stevenson,

, 563‐64 (6th Cir. 2012) (“[E]ven if the SMART Guidelines

were solely promulgated under § [112](b), the Attorney General still

had authority to address the retroactivity of SORNA in substantive

8 No. 12‐5022‐cr

rules pursuant to § [112](b), because § [112](b) incorporates by

reference § [113](d).”).

And finally, the proposed SMART Guidelines specifically

reference section 113(d) in their discussion of retroactivity. See 72

Fed. Reg. at 30,212 (stating that the regulation making SORNA’s

requirements apply to all sex offenders were issued “pursuant to the

authority under SORNA section 113(d)”). The APA requires only

that a proposed rule provide some notice of the legal authority for

that rule—it does not prescribe the form that notice must take.

(b)(2); see Stevenson,

(“The APA does not

require that the proposed rule cite the relevant legal authority in a

certain location, but rather requires just that notice must be given for

any proposed rule.”).

Lott also argues that the Attorney General conceded that the

SMART Guidelines are interpretive rules. Lott relies on the fact that

the Attorney General, after publishing the SMART Guidelines,

found it necessary to publish the Final Rules. He further relies on the

fact that at the time of publication of the SMART Guidelines, the

Attorney General took the position that SORNA applied to pre‐Act

offenders by force of the statute.

The publication of the Final Rule was not, however, a

concession by the Attorney General that the earlier rules were

invalid. As noted, in February 2007, the Attorney General issued the

Interim Rule purported to make SORNA effective immediately to all

9 No. 12‐5022‐cr

sex offenders, including those convicted of sex offenses prior to

SORNA’s enactment. In May 2007, the SMART Guidelines were

published in proposed format, and after a notice and comment

period, they were published in final format in July 2008. The SMART

Guidelines provide jurisdictions5 with guidance and advice

regarding the administration and implementation of SORNA.

. In August 2010, the Attorney General published

the Final Rule to “eliminate any possible uncertainty or dispute

concerning the scope of SORNA’s application,” without conceding

that the Interim Rule or the SMART Guidelines were invalid. 75 Fed.

Reg. at 81,850.

Nor does the Attorney General’s position that Congress itself

had decreed that SORNA applied to pre‐Act offenders constitute a

concession that the SMART Guidelines are interpretive. Such a

concession cannot be gleaned from the fact that the Attorney

General erroneously believed that the earlier statute accomplished

what the later SMART Guidelines did explicitly. The Attorney General was not alone in this belief. Until the Supreme Court’s decision in

Reynolds, five circuits, including ours, held that SORNA’s registration

requirements already applied to pre‐act offenders. See Reynolds,

.

5The term “jurisdiction” means any of the following: a state, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the Northern Mariana Islands, the United States Virgin Islands, and Indian Tribes that elected to be registration jurisdictions.

.

10 No. 12‐5022‐cr

As to Lott’s second argument that the SMART Guidelines

failed to satisfy the notice‐and‐comment requirements of the APA,

we join several of our sister circuits that have found that they did.

See Whitlow,

(1st Cir. 2013); United States v. Mattix,

(9th Cir. 2012) (per curiam); United States v. Trent,

(6th Cir. 2011).6

Lott claims that because the Attorney General erroneously

believed that SORNA already applied retroactively, public

comments regarding retroactive application were not appropriately

considered, violating

But the record shows that the

public was given the opportunity to comment and that the Attorney

General gave consideration to these comments.

“Notice requirements are designed (1) to ensure that agency

regulations are tested via exposure to diverse public comment, (2) to

ensure fairness to affected parties, and (3) to give affected parties an

opportunity to develop evidence in the record to support their

objections to the rule and thereby enhance the quality of judicial

6 Other circuits have found that the Interim Rule validly extended SORNA’s applicability to pre‐Act offenders as the Attorney General had “good cause” to promulgate the Interim Rule without notice and comment as required by the APA. See United States v. Dean,

(11th Cir. 2010); United States v. Gould,

(4th Cir. 2009). 7 Section 553(c) states: “After notice required by this section, the agency

shall give interested persons an opportunity to participate in the rule making through submission [of comments] . . . . After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.”

11 No. 12‐5022‐cr

review.” Int’l Union, United Mine Workers of Am. v. Mine Safety &

Health Admin.,

(D.C. Cir. 2005). “[T]he

opportunity to comment is meaningless unless the agency responds

to significant points raised by the public.” Sherley v. Sebelius,

(D.C. Cir. 2012) (quoting Home Box Office, Inc. v. FCC,

, 35‐36 (D.C. Cir. 1977) (internal quotation marks omitted).

The SMART Guidelines were published in proposed form on

May 30, 2007.

. After a notice‐and‐comment

period that ended on August 1, 2007, they were published in final

form on July 2, 2008.

. Approximately 275

comments were received on the proposed guidelines, including

concerns about “provisions of the guidelines that require that

jurisdictions apply the SORNA requirements ‘retroactively’ to

certain categories of offenders whose sex offense convictions predate

the enactment of SORNA.”

,030‐31. Of particular relevance

here, the commenters were concerned (1) that “Congress was simply

wrong in enacting SORNA[] . . . and that the Attorney General

should mitigate the resulting harm” and (2) that there would be

practical “difficulties in finding older convictions and determining

whether registration is required for them.”

. The

Attorney General specifically addressed both of these concerns. In

response to the policy concerns, he concluded that “the public safety

concerns presented by sex offenders are much the same, regardless

of when they were convicted,” and he declined “to second‐guess the

12 No. 12‐5022‐cr

legislative policies” SORNA embodies.

. In response to

the practical concerns, the proposed guidelines were modified to

clarify that jurisdictions could rely on their usual methods of

searching criminal histories.

.

II. Constitutional Claims

Turning briefly to Lott’s broader arguments regarding

SORNA’s constitutionality, we have considered them and found

them to be without merit. In United States v. Guzman,

(2d

Cir. 2010), we rejected claims that SORNA violates the non‐

delegation doctrine, the Tenth Amendment, and the Ex Post Facto

Clause. There is no superseding authority that causes us to revisit

that holding. SORNA does not violate the Commerce Clause either.

In Guzman, we found that SORNA was “a proper congressional

exercise of the commerce power.”

. Since then, the Supreme

Court has spoken further on the limitations of Congress’s power to

regulate commerce. See Nat’l Fed’n of Indep. Bus. v. Sebelius,

, 2586‐90 (2012). We recently held, however, that the

constitutionality of SORNA, as applied to an interstate traveler such

as Lott, “remains unaffected by any limitations on Congress’s

Commerce Clause power that may be found in NFIB.” United States

v. Robbins,

(2d Cir. 2013), cert. denied,

(2014).

13 No. 12‐5022‐cr

III. The Applicability of the Sentencing Enhancement

Because we have determined that Lott was in failure‐to‐

register status, we turn to Lott’s argument that the district court

committed procedural error by imposing an eight‐level

enhancement, pursuant to U.S.S.G. § 2A3.5(b)(1)(C), for commission

of a “sex offense” while in failure‐to‐register status. “We review a

district court’s imposition of sentence under an abuse‐of‐discretion

standard. The abuse‐of‐discretion standard incorporates de novo

review of questions of law (including interpretation of the

Guidelines) and clear‐error review of questions of fact.” United States

v. Salim,

(2d Cir. 2008) (citations omitted) (internal

quotation marks omitted).

The basis for the imposition of the enhancement was that Lott

was charged with “lewd and lascivious conduct”—a “sex offense”

under SORNA—for his uncontested attempt to force sexual contact

with a 13‐year‐old girl. He ultimately pled guilty to “prohibited

acts,” which is not categorically a sex offense.

Section 2A3.5(b)(1)(C) states: “If, while in a failure to register

status, the defendant committed . . . a sex offense against a minor,

increase by 8 levels.” In the application note for this section, “‘Sex

offense’ has the meaning given that term in

(5).”

Section 16911(5) defines “sex offense” to include “a criminal offense

that has an element involving a sexual act or sexual contact with

14 No. 12‐5022‐cr

another” and “a criminal offense that is a specified offense against a

minor.”

(5)(A)(i)‐(ii).

Lott argues that the enhancement is inapplicable to mere

commission of a sex offense absent a conviction for that offense. And

because Lott pled to the misdemeanor act of prohibited acts, which

he argues is not categorically a sex offense, the enhancement was

wrongly applied. We disagree. Neither

(5) nor

U.S.S.G. § 2A3.5(b)(1)(C) require a sex offense conviction in order to

apply an eight‐level increase pursuant to section 2A3.5; conduct

amounting to a “sex offense” is enough.8 “Neither the Guidelines

nor SORNA make any reference to a conviction. To the contrary, the

Guidelines specify that the enhancement is triggered by the

commission of an act.”9

8 Because the language of the guideline is clear that a conviction is not necessary for the enhancement, there is no need for us to perform the categorical/modified categorical approach to determine if Lott’s prohibited acts conviction qualifies as a “sex offense.” See generally United States v. Beardsley,

(2d Cir. 2012) (describing these approaches). 9 To support his argument that conviction is required, Lott also points

to U.S.S.G. § 1B1.1, cmt. 1(H), which states that “‘[o]ffense’ means the offense of conviction and all relevant conduct under § 1B1.3 (Relevant Conduct).” But nothing in § 1B1.3, which describes “relevant conduct,” requires conviction.

15 No. 12‐5022‐cr

Lott’s uncontested forcible sexual contact with a 13‐year‐old

girl is a sex offense under section 16911(5). Therefore the district

court did not commit error by imposing the enhancement.10

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the

district court.

10 Because the conduct constituting a sex offense was uncontested in this instance, we need not consider what lower level of proof might suffice for application of the enhancement, absent a conviction.

16