## Facts

- In 1994, Christopher C. Dean was convicted in Minnesota of a sexual offense that required him to register as a sex offender.
- Dean later moved to Montana and registered there, then moved to Georgia and registered there in 2005, providing notice to Montana.
- Congress enacted the Sex Offender Registration and Notification Act (SORNA) in July 2006.
- SORNA authorized the Attorney General to specify SORNA’s applicability to individuals convicted of sex offenses before SORNA’s enactment and to issue rules addressing registration for those individuals. 42 U.S.C. § 16913(d).
- On February 28, 2007, the Attorney General issued an interim rule declaring SORNA applicable to all pre-Act offenders. The rule was issued without advance notice-and-comment rulemaking, relying on the Administrative Procedure Act’s (APA) “good cause” exceptions. 5 U.S.C. § 553(b)(3)(B), (d).
- Between July and August 2007, Dean traveled to Alabama and failed to register as a sex offender there.
- In March 2008, the United States charged Dean with traveling in interstate commerce and knowingly failing to register as required by SORNA, in violation of 18 U.S.C. § 2250(a).
- Dean moved to dismiss the indictment, arguing (among other grounds) that the interim rule was invalid because the Attorney General lacked “good cause” to bypass notice-and-comment procedures.
- The district court denied the motion to dismiss; Dean pleaded guilty and was sentenced (including supervised release), then filed a timely appeal challenging the denial of his motion.

## Issues

1. Whether the Attorney General had “good cause” under 5 U.S.C. § 553(b)(3)(B) to issue the February 28, 2007 interim rule making SORNA applicable to pre-Act offenders without prior notice-and-comment procedures.
2. Whether, given the timing of Dean’s interstate travel and failure to register, the interim rule validly made SORNA applicable to Dean such that his conviction under 18 U.S.C. § 2250(a) could stand.
3. Whether SORNA and the Attorney General’s retroactivity rule were invalid on related statutory or constitutional grounds raised by Dean (including nondelegation, Commerce Clause, Ex Post Facto Clause, and due process).

## Decision

- The Eleventh Circuit affirmed the district court’s denial of Dean’s motion to dismiss and affirmed Dean’s conviction and sentence.
- The court held that the Attorney General permissibly invoked the APA’s good-cause exception to issue the interim rule without advance notice and comment, based on public-safety concerns and the risk that delay would leave pre-Act offenders outside SORNA’s reach during the rulemaking period.
- Because the interim rule validly made SORNA applicable to pre-Act offenders and Dean’s travel and failure to register occurred after the interim rule took effect, Dean could be prosecuted under 18 U.S.C. § 2250(a).
- The court rejected Dean’s additional challenges to SORNA’s validity and its application to him.

## Legal Principles

- Under the APA, an agency may dispense with advance notice-and-comment procedures when it has “good cause” to find that those procedures are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. § 553(b)(3)(B).
- Public-safety concerns and the risk of harm during the period required for notice-and-comment rulemaking can support a “good cause” finding for an interim rule, particularly where delay may leave a regulatory gap affecting public protection.
- Congress may delegate to an executive official authority to determine a statute’s applicability to a defined class (here, pre-Act offenders) when the statute provides sufficient guidance (an intelligible principle) for the exercise of that authority.
- A conviction under 18 U.S.C. § 2250(a) is tied to post-enactment conduct—interstate travel and a knowing failure to register as required—so applying § 2250(a) after SORNA (and a valid retroactivity rule) took effect does not retroactively punish the original sex offense for Ex Post Facto purposes.
- The interstate-travel element in § 2250(a) supplies a jurisdictional connection to interstate commerce sufficient to support Congress’s authority to criminalize the conduct described in the statute.

## Conclusion

United States v. Dean, 604 F.3d 1275 (11th Cir. 2010), upheld the Attorney General’s use of the APA good-cause exception to issue an interim rule applying SORNA to offenders convicted before SORNA’s enactment, and the Eleventh Circuit affirmed Dean’s conviction under 18 U.S.C. § 2250(a) because his interstate travel and failure to register occurred after the interim rule became effective.


United States v. Dean, 604 F.3d 1275 (2010)