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Sex Offender Registration Act Not Fully Retroactive

(CN) - The Sex Offender Registration and Notification Act cannot apply retroactively to offenders indicted before Aug. 1, 2008, the 9th Circuit ruled, finding that former U.S. Attorney General Alberto Gonzales disregarded procedure when he applied the law in 2007 to all sex offenders.

The federal appeals panel in San Francisco affirmed the dismissal of new charges against Mark Anthony Valverde, a sex offender who pleaded guilty in California Superior Court in 2002 to 11 counts of sexual abuse of a minor under 16 and one count of having child pornography.

Valverde left California after his 2008 release to stay at his grandmother's house in Missouri. Valverde did not register as a sex offender in California or Missouri, and he was indicted in California under the Sex Offender Registration and Notification Act (SORNA) for traveling across state lines and failing to register as a sex offender.

General Alberto Gonzales had issued an interim rule in 2007 applying the law to all sex offenders, including those convicted before its passage.

Senior U.S. District Judge Lawrence Karlton dismissed the indictment, finding that the registration provisions of the act did not fall under Congress' power to regulate interstate commerce.

While the three-judge appeals panel disagreed with Karlton's reasoning, it nonetheless affirmed the dismissal of Valverde's indictment.

Gonzales failed to comply with the Administrative Procedures Act (APA) by applying SORNA registration requirements retroactively, the appellate judges found.

Gonzales had cited the "good cause" exception to the APA, ignoring its requirements that his decision be published in advance and subjected to public comment. When Gonzales issued the rule, he noted in an accompanying statement that the notice and comment period was "contrary to the public interest," according to the ruling.

But the panel was unconvinced.

"We strongly disagree with the conclusion reached by the courts that hold that compliance with the APA's notice and comment procedures would have controverted the public interest in this case," Judge Stephen Reinhardt wrote. "We find no plausible support for that conclusion in the attorney general's statement accompanying the issuance of the interim rule that sought to apply SORNA retroactively to pre-enactment offenders."

Three months after issuing the interim rule, Gonzales issued new guidelines called Sentencing Monitoring, Apprehending, Registering, and Tracking (SMART), solicited comments and published the final guidelines in July 2008.

"The retroactivity provision did not become effective until August 1, 2008 - 30 days after its publication in the final SMART guidelines along with the attorney general's response to related public comments," Reinhardt wrote.

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