On the Importance of George II - the Constitutionality of SORNA

King George Augustus II

Good news in the Ninth: all constitutional challenges to SORNA are fair game again in the Circuit, since the Court vacated the conviction of Mr. George and dismissed the case in United States v. George, ___F.3d ____, No. 08-30339, slip op. 2593 (9^th Cir. Mar. 7, 2012), 2012 WL 718297 (decision available here). 

The short opinion in George II doesn’t reflect its significance.

Mr. George’s original appeal resulted in the Ninth Circuit’s rejection of the following challenges: lack of state implementation at the time of his travel, Congressional authority under the Commerce Clause, and an Ex Post Facto Clause as applied to Mr. George. United States v. George , 625 F.3d 124 (9^th Cir. 2010). (available here). 

The 9^th Circuit Court of Appeals dismissed George II, relying only upon the narrow grounds articulated in United States v. Valverde, 628 F.3d 1159 (9^th Cir. 2010). The dismissal came in the wake of the Supreme Court’s consistent, but more limited decision in Reynolds v. United States, 132 S.Ct. 975 (2012) holding that SORNA requires a valid AG rules implementation for SORNA to apply to pre-act offenders. Mr. George had traveled prior to the August 1, 2008 SMART guidelines effective date. The Valverde and Reynolds decisions both opened the door to the subject matter jurisdiction challenge, which cannot be waived and may be raised at any time. United States v. Pheaster, 544 F.2d 353, 360-61 (9^th Cir. 1976). Whether or not a statute was in effect on a given date is an issue of subject matter jurisdiction, United States v. Caperell, 938 F.2d 975, 977 (9^th Cir. 1991). 

Most importantly, the George II dismissal vacates the entirety of the original George opinion. Now all constitutional challenges are again available within the 9^th Circuit. Opposition arguments to the Affordable Health Care Act, and the outcome of the litigation pending before the Supreme Court, could impact SORNA. If Congress can’t mandate insurance purchases, how can the Commerce Clause give Congress the authority to mandate a non-commercial registration requirement for someone who simply wishes to exercise his constitutional right to travel interstate? Justice Sotomayor’s opinion in Carr v. United States 130 S.Ct. 2229(2010) should also support constitutionality challenges beyond pre-effective date actions. While Carr avoided the ex post facto question through statutory construction, the language of the majority opinion is promising. 

There are pending appeals in the pipeline that raise the issues previously addressed in George. A Ninth Circuit opinion striking down SORNA on due process, commerce clause or ex post facto grounds would create a circuit split; the 6^th Circuit recently joined the growing number of Circuits to upheld SORNA under Commerce Clause and Ex Post Facto challenges in United States v. Coleman, (blogged about here).

While many Circuits have addressed SORNA, few states (only Nevada in the 9^th Circuit) have implemented SORNA. (For a list of jurisdictions who have implemented regulations, see here ). SORNA regulations disregard a risk classification system based upon an offender’s propensity to reoffend. Instead, SORNA relies only upon the Tier I II and III classification system that is based solely upon the nature of the prior offense that triggered registration requirements. This also creates a challenge to the sentencing structure set forth at U.S.S.G. § 2A3.5, which increases the base offense level based on the prior offense.

Congratulations to Rebecca Pennell with the Federal Defenders of Eastern Washington in Yakima for the George win; to Rachelle Barbour, Lexi Negin and David Porter with the Sacramento FD for the Valverde victory that paved the way; and to Paresh Patel and the Greeneville and Knoxville APDs for the work to prevail on the APA violation claim in United States v. Utesch, 596 F.3d 302 (6^th Cir. 2010). 

Image of King George the II from http://en.wikipedia.org/wiki/George_II_of_Great_Britain

Diane E. Hehir
Trial Attorney
Federal Defenders of Eastern Washington and Idaho

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