Fives Take Side on Circuit Split, Hold That SORNA's Registration Requirement Did Not Become Applicable to Those with Pre-SORNA Convictions Until AG Issed Interim Rule Making SORNA Retroactive

United States v. Hoang, No. 09-30484 (5th Cir. Feb. 23, 2011) (Jones, Jolly, Garza)

So what's this case about?

Appellant Nam Van Hoang (“Hoang”) appeals from his conviction for failure to register pursuant to the Sex Offender Registration and Notification Act (“SORNA”). Hoang was convicted of a sex offense and registered as a sex offender under state law prior to the enactment of SORNA, which requires a sex offender to register in each jurisdiction where he resides and to keep his registration current. Section 2250 of Title 18 prohibits sex offenders who are required to register under SORNA from traveling in interstate commerce and knowingly failing to register. Hoang’s interstate travel took place after SORNA’s enactment but before the Attorney General issued an Interim Rule declaring SORNA applicable to all sex offenders whose underlying sex-offense convictions predate SORNA’s enactment. There is a split of authority among the courts of appeals as to whether SORNA’s registration requirements became effective to already-registered, pre-SORNA sex offenders (1) on the date SORNA was enacted, or (2) when the Attorney General issued the Interim Rule declaring SORNA retroactive. We hold that Hoang did not become subject to SORNA’s registration requirements until the Attorney General issued the Interim Rule. We reverse the judgment of the district court and remand for entry of an order of dismissal.

This is so, the court held, because of the plain text of 42 U.S.C. § 16913(d), the provision of SORNA that gave the Attorney General the discretion to make the retroactive-application decision.  The court went on to say that, to the extent that § 16913(d) is ambiguous, the rule of lenity commands the narrower interpretation.
 
Incidientally, this makes the circuit split 5-2.