U.S. v. George, No. 08-30339 (8-25-09). The 9th (Thompson joined by Canby and Callahan) rejects constitutional challenges to SORNA. The 9th held that a defendant convicted of a federal crime had to register, and could not argue that he did not have to register because his state had yet to implement SORNA. The 9th also held that the requirement was not an invalid exercise of congressional power because the requirement affected interstate commerce. Finally, the 9th rejected the ex post facto challenge because registration is a continuing offense, and the defendant failed to register after he moved to Washington and after the statute had been enacted.

Crickon v. Thomas, No. 08-35250 (8-25-09). For a "good time," call the BOP, and tell them that the 9th sent you. Here, the petitioner argued that he should be allowed in the special drug abuse prevention program and be eligible for early release. The BOP categorically denied the program's early release eligibility to prisoners with certain prior convictions. Here, the petitioner had a 1970 voluntary manslaughter although he was in prison for a meth drug offense that occurred in 2000. BOP argued that such exclusions, though, fell under the agency's wide discretion and comported with congressional intent to bar violent offenders from the benefit. The 9th (Rawlison joined by Paez and Jenkins) found that such rationalizations were post hoc, and that the BOP violated the APA in promulgating its rules that really had no basis (the distinction with violent/nonviolent pertains to the present offense). As the 9th summed up: "Although the BOP is afforded wide discretion in promulgating regulations governing the administration of 18 U.S.C. § 3621(e), it must comply with its obligation under the APA to articulate its rationale for exercising such discretion. The administrative record before us is devoid of any contemporaneous rationale for the BOP’s promulgation of a rule categorically excluding inmates with certain prior convictions from early release eligibility." The petition is granted.

Congratulations to AFPD Steve Sady, District of Oregon FPD Office (Portland). Another win for this paladin of prisoner due process.