The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Patrick Romeo ("Romeo") has moved to dismiss his indictment for failing to register or update his registration as a sex offender in violation of 18 U.S.C. § 2250, as required by the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901, et seq. (Dkt. No. 14.) Following a careful review of Romeo's motion, brief in support thereof, the Government's response thereto, and the record on the matter, the Court denies Romeo's motion.
None of the issues in Romeo's motion to dismiss involve any factual disputes. Rather, the issues raised by Romeo are solely constitutional challenges to SORNA's applicability to him. Thus, the Court will only briefly discuss the facts in this case.
On January 26, 2001, Romeo pled guilty to one count of violating Section 288(c) of the California Penal Code (Lewd Act Upon a Child -- Age 14 or 15), a felony. (Dkt. No. 19, Part 1, at 4-10.) Romeo waived his right to reject probation and accepted a sentence of three (3) years probation from the court with terms and conditions that he spend one hundred-eight (180) days in county jail and pay a restitution fine of two hundred dollars ($200). (Id.) As required by California state law, Romeo registered in California as a sex offender on July 13, 2001. (Dkt. No. 19, Part 2, at 1.)*fn1 Thereafter, Romeo provided to the California Sex Offender Registry documentation verifying his address, on the following dates: December 18, 2002; December 19, 2003; December 15, 2004; December 20, 2005, December 19, 2006; and December 19, 2007. (Dkt. No. 19, Part 3, at 1-12.)
On September 29, 2008, Romeo was arrested in Fort Covington, New York, by the New York State Police, and charged with the following: (1) Sexual Abuse in the First Degree, a violation of New York State Penal Law Section 130.65; (2) Sexual Abuse in the Second Degree, a violation of New York State Penal Law Section 130.60, a class E felony; (3) Forcible Touching, a violation of New York State Penal Law Section 130.52, a class A Misdemeanor; and (4) Endangering the Welfare of a Child, in violation of New York State Penal Law Section 260.10, a class A Misdemeanor. (Dkt. No. 14, Part 2, at 2.) Upon his arrest for these charges, Romeo apparently told the arresting officer that he had been living in Fort Covington, since May of 2008, without updating or changing his registration. (Id.; Dkt. No. 18, at 4.) On November 13, 2008, Romeo was indicted in this case for failing to register under SORNA from May of 2008 to November of 2008. (Dkt. No. 8.)
Romeo's motion to dismiss the indictment is based on four grounds: (1) to punish Romeo for a violation of an Act that has not yet been implemented in either New York or California would violate the Ex Post Facto and Due Process Clauses of the Constitution; (2) Congress lacks the power, under the Commerce Clause, to force individuals convicted of purely local sex offenses to register as sex offenders; (3) SORNA impermissibly encroaches upon state power in violation of the Tenth Amendment; and (4) SORNA violates the doctrine (i.e., the "Non-Delegation Doctrine") that prohibits Congress from delegating its legislative authority to another branch of the government (i.e., the executive branch). (Dkt. No. 14, Part 2, at 2-3, 7-24.) The Government opposes Romeo's motion.
II. RELEVANT STATUTORY LANGUAGE
SORNA provides as follows, in pertinent part:
Registry requirements for sex offenders
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of his residence.
The sex offender shall initially register--
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not ...