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October 13, 2009

Split Sixth Circuit reverses SORNA failure-to-register conviction and affirms other sex offender sentence

This morning in US v. Cain, No. 07-4535 (6th Cir. Oct. 13, 2009) (available here), a divided panel of the Sixth Circuit reverse a sex offender's federal conviction for failing to register under SORNA.  Here is how the majority opinion starts:

This appeal requires us to determine when the registration requirements of the federal Sexual Offenders Registration and Notification Act (SORNA) became effective with respect to a defendant who had been convicted of a sexual offense before passage of SORNA.  The Government indicted defendant Cain under 18 U.S.C. § 2250 for traveling from Ohio to Georgia sometime between October 16, 2006, and March 28, 2007, and failing to update his sex offender registration as required by state and federal law.  The circuits are split on whether defendants with pre-SORNA convictions had to comply with SORNA before the Attorney General issued an implementing regulation.  Because SORNA explicitly required the Attorney General to specify the applicability of the Act to persons convicted prior to the effective date of SORNA, and because the Attorney General did not promulgate a regulation making that determination in compliance with the Administrative Procedure Act, Cain was not subject to SORNA’s requirements during the period indicated in the indictment. Reversal is therefore required.

The Sixth Circuit today also split (in complicated ways) in affirming in another case the significant sentence given to "a decorated U.S. Air Force veteran in his mid-50’s" who pleaded guilty to one count of traveling with intent to engage in illicit sexual conduct with a teenager.  The ruling in US v. Lay, No. 07-4062 (6th Cir. Oct. 13, 2009) (available here), is perhaps another (lengthy) must-read for anyone dealing with federal sex offense cases these days.

October 13, 2009 at 09:50 AM | Permalink


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What may be key and far reaching is footnote 6.

"6We take no position on whether a conviction based on failure to register after the close of the comment period would be invalid, as that issue is not before us."

It is possible if not probable the AG's regulation is null and void if implemented unlawfully.

Posted by: George | Oct 13, 2009 5:44:47 PM

read about effects and guilty pleas relative to retroactivity in St.Cyer v. INS

Posted by: moses | Dec 21, 2009 7:58:02 AM

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