In U.S. v. Stevenson, two sex offenders convicted under state law were indicted under the federal Sex Offender Registration and Notification Act (SORNA) when they left Michigan without updating their registrations. They argued it couldn’t be applied retroactively to them because they were convicted of their crimes prior to SORNA’s enactment in 2006. The U.S. District Court (E.D. Michigan) agreed, finding that an Attorney General Interim Rule that made the SORNA requirements retroactive was invalid under U.S. v Cain.
The 6th U.S. Circuit Court of Appeals reversed, finding that the timing between the two cases distinguished them.
In Cain, the problem was that the Attorney General didn’t adhere to procedures for making new rules requiring retroactive application of SORNA under the Administrative Procedure Act in May 2007. The APA required a notice and comment period – a period during which Cain committed his alleged SORNA violation. In another decision, U.S. v. Utesch, the 6th said that the proposed rules couldn’t be applied in any event.
But, the Attorney General restarted the process using the proper procedure, finalizing the new guidelines on August 1, 2008. The court, using the same reasoning as in Utesch, determined that is the date SORNA became retroactively applicable.
Having found no compelling argument to the contrary, we hold today what we first concluded in Utesch: SORNA became retroactive to pre-enactment offenders on August 1, 2008. The district court therefore erred in dismissing the indictments of Flowers and Stevenson, who traveled after the SMART guidelines became final.