     Case: 09-50204   Document: 00512759912    Page: 1   Date Filed: 09/08/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                    Fifth Circuit

                                                                       FILED
                                                                  September 8, 2014
                                  09-50204
                                                                    Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

                                          Plaintiff - Appellee
v.

FRANCISCO TORRES,

                                          Defendant - Appellant




                Appeal from the United States District Court
                     for the Western District of Texas



Before DAVIS, DENNIS, and COSTA, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      This appeal involves a single issue regarding the federal Sex Offender
Registration and Notification Act of 2006 (“SORNA”). SORNA requires sex
offenders to register with state-run sex-offender registries and to keep their
registrations current. However, persons who were convicted of sex offenses
before SORNA’s enactment on July 27, 2006 (“pre-enactment sex offenders”)
are only required to comply with the statute’s registration requirements if and
when the Attorney General so specifies in a “valid” regulation. See Reynolds
v. United States, 132 S. Ct. 975, 979, 984 (2012) (construing 42 U.S.C.
§ 16913(a), (d)). The single question in this case is whether the Attorney
General’s “interim rule” of February 28, 2007, which required pre-enactment
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sex offenders to comply with SORNA, was such a “valid” promulgation. For
the reasons that follow, the answer, which is controlled in this circuit by United
States v. Johnson, 632 F.3d 912 (5th Cir. 2011), is yes, at least with respect to
the defendant here, Francisco Torres. We therefore affirm his conviction.
       In 1999, Torres was convicted under the Uniform Code of Military
Justice of violating Article 120, sodomy of a child under 12 years old, and
Article 134, indecency with a child under 16 years old. In the initial years
following his conviction, he registered as required under then-existing sex-
offender-registration laws. On July 27, 2006, SORNA was enacted into law.
From that date, July 27, 2006, until May 7, 2008, Torres failed to update his
registration to reflect several changes in employment as required under
SORNA.       On June 11, 2008, he was charged with failing to update his
registration under 18 U.S.C. § 2250(a), which provides in relevant part that,
“Whoever—[1] is required to register under [SORNA]; [2] is a sex offender as
defined for purposes of [SORNA] by reason of a conviction under Federal law
(including the Uniform Code of Military Justice); . . . and [3] knowingly fails to
register or update a registration as required by [SORNA]; shall be fined under
this title or imprisoned not more than 10 years, or both.” After the district
court rejected several legal challenges to the charges, Torres and the
government stipulated to his failure to update his registration between July
27, 2006 and May 7, 2008. Following a bench trial, Torres was found guilty.
       On appeal, Torres’ argument proceeds in two steps. 1                      First, Torres
contends that the period in which he did not update his registration to reflect
changes in employment—July 27, 2006 to May 7, 2008—occurred before the


       1  The government contends that this argument was not sufficiently presented to the
district court to preserve it for appeal and, therefore, the plain-error rule is invoked. See Fed.
R. Crim. P. 52(b). However, because Torres’ argument fails under any standard of review,
we need not determine whether the plain-error rule is applicable here.
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                                      No. 09-50204
effective date that SORNA began to apply to pre-enactment sex offenders such
as himself under the terms of the statute. In other words, he argues that,
during the time he committed his conduct of conviction, the statute did not yet
prohibit such conduct. Second, Torres contends that since his conduct occurred
before the effective date of the statute, his conviction violates the Ex Post Facto
Clause. See U.S. Const. art. I, § 9, cl. 3 (“No . . . ex post facto Law shall be
passed.”). 2 The first question then is when SORNA began applying to pre-
enactment sex offenders such as Torres and whether such date was indeed, as
Torres argues, after May 7, 2008, when his conduct (that is, his failure to
update his registration) concluded.
       In Reynolds v. United States, the Supreme Court held that two provisions
of SORNA—one that imposes the duty on sex offenders to register and keep
the registration current, 3 and another that authorizes the Attorney General to
specify the applicability of SORNA’s requirements to pre-enactment sex
offenders 4—should be read together so as to provide that pre-enactment sex
offenders are not required by SORNA to register and update their registrations
unless and until the Attorney General so specifies in a “valid rule.” 132 S. Ct.
at 979, 984. Thus, under Reynolds, the question of when SORNA began to
apply to pre-enactment sex offenders turns on whether and when the Attorney
General promulgated a “valid rule” specifying such application.


       2  To be clear, Torres does not make the sort of ex-post-facto argument that was
asserted and rejected in United States v. Young, 585 F.3d 199 (5th Cir. 2009). In Young, this
court rejected the argument that, in short, SORNA’s registration regime as applied to persons
who committed sex offenses before SORNA’s enactment operated to increase the punishment
for those sex offenses after they had already been committed. Torres does not make that
argument here. Rather, his argument is that, as a matter of statutory law, SORNA did not
apply to him at the time he committed his conduct of conviction. Therefore, he argues, his
conviction violates the Ex Post Facto Clause. Young did not address this argument. See
Young, 585 F.3d at 204 n.20.
       3   42 U.S.C. § 16913(a).
       4   Id. § 16913(d).
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       There are several possible instances when the Attorney General could
have validly specified that pre-enactment sex offenders are required to register
under SORNA, but only one of those instances was prior to the conclusion of
Torres’ conduct of conviction, that is, before May 7, 2008. On February 28,
2007, the Attorney General issued the “interim rule” that is at issue in this
appeal. With unambiguous language, the interim rule decreed that SORNA’s
registration requirements “apply to all sex offenders, including sex offenders
convicted of the offense for which registration is required prior to the
enactment of [SORNA].” See 72 Fed. Reg. 8894, 8897 (codified at 28 C.F.R.
§ 72.3). The question is whether that rule was a “valid” promulgation. 5
       The circuit courts are divided on whether the interim rule of February
28, 2007 is valid. Compare United States v. Reynolds, 710 F.3d 498, 524 (3d
Cir. 2013) (invalid), United States v. Cain, 583 F.3d 408, 419-20 (6th Cir. 2009)
(same), and United States v. Valverde, 628 F.3d 1159, 1166-69 (9th Cir. 2010)
(same), with United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009) (valid),
and United States v. Dean, 604 F.3d 1275, 1282 (11th Cir. 2010) (same). Here,
Torres offers only a single argument for the interim rule’s invalidity. That is,
he says that this court has already held in United States v. Johnson, 632 F.3d
912 (5th Cir. 2011), that the interim rule is invalid. This argument is incorrect
and, in fact, backward.
       In Johnson, this court addressed the claim that, in promulgating the
interim rule, the Attorney General wrongfully failed to adhere to two
requirements of the Administrative Procedure Act (“APA”). Id. at 921. “Under



       5 The next instance in which the Attorney General could have validly required pre-
enactment sex offenders to register under SORNA would have been July 2, 2008, when the
Attorney General issued “final guidelines.” See 73 Fed. Reg. 38,030, 38,046. Because the
final guidelines were not issued until after Torres’ conduct of conviction, they are not at issue
here.
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                                 No. 09-50204
the APA, agencies issuing rules must publish notice of proposed rulemaking in
the Federal Register and ‘shall give interested persons an opportunity to
participate in the rule making’ by allowing submission of comments.” Id. at
927 (citing 5 U.S.C. § 553(b), (c)).    “In addition, the APA requires that
publication of a substantive rule ‘shall be made not less than 30 days before its
effective date.’”   Id. (citing 5 U.S.C. § 553(d)).   However, “both of these
requirements may be bypassed if ‘good cause’ exists.” Id. (citing 5 U.S.C. §
553(b)). The issue in Johnson was whether the Attorney General had “good
cause” to forgo the APA’s requirements. Johnson held that he did not. Id. at
930. However, Johnson did not end its analysis upon finding that the Attorney
General had violated the APA, because “[t]he APA demands that courts
reviewing agency decisions under the Act ‘[take] due account . . . of the rule of
prejudicial error.’” Id. at 930 (citing 5 U.S.C. § 706). “In administrative law,
as in federal civil and criminal litigation, there is a harmless error rule.” Id.
(quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644,
659-60 (2007)). Johnson ultimately concluded “that the Attorney General’s
APA violations were harmless error.” Id. at 933.
      In holding that the APA violations were harmless, Johnson rejected the
argument that the interim rule was invalid by dint of the APA violations
(insofar as the rule applied to the defendant in that case, that is). Indeed, in
so holding, Johnson cited the concurrence to the Eleventh Circuit’s decision in
United States v. Dean, 604 F.3d 1275 (11th Cir. 2010), which concluded that
the court should “uphold the Attorney General’s interim rule.” Id. at 1289
(Wilson, J., concurring) (emphasis added). If Johnson did not intend to hold
that the interim rule was valid and had the force of law, it is not apparent what
else the court could have meant in the harmless error discussion. If Johnson
had struck down the interim rule (as Torres believes to have been the case), it
would mean that the court in Johnson went on to affirm a criminal conviction
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                                 No. 09-50204
despite recognizing that the defendant’s conduct of conviction did not fall
within the ambit of the statute. See Johnson, 632 F.3d at 922 (construing
SORNA to apply to pre-enactment sex offenders only if there has been a
regulation with the force of law from the Attorney General providing such).
Torres offers no explanation for how Johnson could have affirmed a conviction
based on conduct that was not illegal, nor is any explanation apparent. In
short, Torres misreads Johnson. Johnson did not invalidate the Attorney
General’s interim rule, but rather upheld it as applied to the defendant there,
finding that the APA violations did not prejudice him.
      The reasons that Johnson found the Attorney General’s APA violations
to be harmless to the defendant there apply with equal force to Torres. First,
with respect to the requirement that regulations be published at least 30 days
before their effective date, Johnson found the Attorney General’s violation of
that provision to be harmless because the conduct of the defendant in that case
occurred more than 30 days after the interim rule’s February 28, 2007,
publication—i.e., after March 30, 2007. Id. at 930. That is the case here too.
Torres’ conduct of conviction continued until May 7, 2008, long after March 30,
2007. Second, with respect to the requirement that interested persons be
provided advanced notice of proposed rulemaking and afforded the opportunity
to comment, Johnson found the violation of such to be harmless, reasoning
essentially that, even though the rule was promulgated in the absence of a
public comment period, the Attorney General considered and rejected
arguments that were made against the rule and would have likely reached the
same result regardless. Id. at 931-33. There is no reason to think that this
aspect of Johnson does not control here. As in Johnson, here too, “[t]here is no
suggestion that, if given the opportunity to comment, [Torres] would have
presented an argument the Attorney General did not consider in issuing the
interim rule.” Id. at 932.
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                                       No. 09-50204
      It could be argued that Johnson was wrongly decided, 6 but we must
follow it until the Supreme Court, this court sitting en banc, or Congress says
otherwise. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th
Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel
of our court may not overturn another panel’s decision absent an intervening
change in the law, such as by a statutory amendment, or the Supreme Court,
or our en banc court.”). Johnson upheld the interim rule insofar as it affected
the defendant there, and, under Johnson, we must do the same here.
      Torres argues that we should adopt that part of Johnson declaring APA
violations but disregard that part of Johnson finding that the violations were
harmless. We can do so, he says, because Johnson involved an “APA claim”
while this case, given the citation to the Ex Post Facto Clause, involves a
“constitutional claim.” This argument is without merit. The question in both
Johnson and under the claim that Torres attempts to assert here is whether
SORNA reached the defendant’s conduct of conviction at the time of that
conduct, which in turn depends on whether the interim rule has the force of
law or, on the contrary, is invalid.            In both Johnson and here, only one
argument for the interim rule’s invalidity is offered—that the Attorney
General ran afoul of the APA’s requirements. Thus, the question in both cases
is the same: whether the Attorney General’s APA violations rendered the
interim rule an invalid promulgation without the force of law.
      Because, under this circuit’s precedent, the interim rule is valid insofar
as it affects Torres, and that rule required Torres, as a pre-enactment sex
offender, to update his sex-offender registration under SORNA, it follows that
Torres’ failure to do such violated SORNA. Torres’ argument under the Ex



      6   See United States v. Reynolds, 710 F.3d 498, 521-23 (3d Cir. 2013).

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                                       No. 09-50204
Post Facto Clause that his conduct of conviction occurred before the effective
date that SORNA became applicable to him is without merit. Johnson compels
us to conclude that SORNA became effective as to Torres on February 28, 2007,
the date that the Attorney General issued his interim rule specifying SORNA’s
applicability to pre-enactment sex offenders, and Torres’ failure to update his
registration continued until after that date. 7
       AFFIRMED.




       7 Torres also asserts claims that he concedes are foreclosed under this court’s decisions
in United States v. Whaley, 577 F.3d 254 (5th Cir. 2009), and United States v. Heth, 596 F.3d
255 (5th Cir. 2010). We agree that these claims are foreclosed and thus address them no
further.
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