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United States of America v. George Lesure

July 19, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
GEORGE LESURE, DEFENDANT.



The opinion of the court was delivered by: Murphy, District Judge:

MEMORANDUM AND ORDER

Before the Court is Defendant George Lesure's motion to dismiss the superceding indictment (Doc. 37). Upon full consideration of the parties' papers, the Court finds oral argument on the motion unnecessary. The Court finds that the Seventh Circuit Court of Appeals's opinion in United States v. Dixon, 551 F.3d 578 (7th Cir. 2008), though abrogated in part by the Supreme Court's decision in Carr v. United States, 130 S.Ct. 2229 (2010), remains good law relative to Defendant's arguments here. Under the rationale of Dixon, and other cases to have considered arguments against the constitutionality of the Sex Offender Registration and Notification Act ("SORNA"), Defendant's motion is DENIED.

BACKGROUND

According to the Government (and uncontested by Defendant in his motion), Mr. Lesure was convicted of aggravated criminal sexual assault in St. Clair County, Illinois on July 26, 1991 and registered as a sex offender in Illinois from 2000 to 2007 (Doc. 40). The Government alleges that in 2007, Mr. Lesure moved to Missouri and failed to register in Missouri or update his Illinois registry, in violation of SORNA. Mr. Lesure was indicted on December 14, 2011, and a superceding indictment was filed April 3, 2012 after the Supreme Court decided Reynolds v. United States, 132 S.Ct. 975 (2012). The superceding indictment charges Mr. Lesure with failure to register under SORNA from August 1, 2008 to September 22, 2008, in violation of 18 U.S.C. § 2250(a) (Doc. 25).

DISCUSSION

As the Supreme Court recently summarized, SORNA "requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries. The Act makes it a crime for a person who is required to register under the Act and who travels in interstate of foreign commerce knowingly to fail to register or update a registration." Reynolds, 132 S.Ct. at 978, citing 42 U.S.C. § 16901 et seq; 18 U.S.C. § 2250(a). SORNA became law on July 27, 2006, and on February 28, 2007, "the Attorney General promulgated an Interim Rule specifying that the requirements of the Act apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." Id. (internal quotations omitted). In Reynolds, the Court found that SORNA's registration requirements do not apply to pre-Act offenders who failed to register in the period between July 27, 2006 and February 28, 2007--the Court did not rule on the validity of the Interim Rule itself. Id. at 979-80.

The Supreme Court also considered SORNA in 2010 in Carr v. United States, holding that the Act does not extend to travel that occurred before enactment. 130 S.Ct. at 2242. The Carr opinion reversed the Seventh Circuit's decision in United States v. Dixon inasmuch as Dixon found that Defendant Thomas Carr's interstate travel--which occurred in late 2004/early 2005--did violate SORNA as he had failed to register in July of 2007, 5 months after the Interim Rule. Dixon, 551 F.3d at 586-87; Carr, 130 S.Ct. at 2233. Here, Mr. Lesure's travel occurred after the Interim Rule was promulgated, so the basis of Carr's abrogation of Dixon does not apply.*fn1

Judge Posner's opinion in Dixon is otherwise instructive as to Mr. Lesure's arguments here: (1) the Attorney General's Interim Rule violates the Administrative Procedures Act ("APA"); (2) Congress's delegation of SORNA's retroactivity to the Attorney General violates Article I, sections 1 and 8 of the Constitution; (3) SORNA violates his procedural and substantive due process rights;

(4) SORNA violates his right to travel; (5) SORNA violates the Tenth Amendment; (6) SORNA violates the Ex Post Facto Clause; and (6) SORNA violates the Commerce Clause.

1. The Administrative Procedures Act and the Interim Rule

Mr. Lesure argues that the Interim Rule was invalid because the Attorney General failed to comply with the APA's notice and comment procedure, and there was no 'good cause' to bypass that procedure. This argument was made by the defendant in United States v. Dixon--the argument characterized by the Seventh Circuit as "frivolous" and without merit. United States v. Dixon, No. 3:07-CR-72(01), 2007 WL 4553720 (N.D.Ind. Dec. 18, 2007); United States v. Dixon, 551 F.3d at 583. As the Seventh Circuit has found an identical argument lacking, the Court deems that the Seventh Circuit has spoken on this issue--Mr. Lesure's argument fails. See also Carr, 130 S.Ct. at 2235-36 (Noting that amongst a circuit conflict, the Seventh Circuit accepts the validity of the interim rule). Mr. Lesure argues that Dixon was not dispositive on this issue and is not controlling as it was reversed by Carr. The Court agrees with the rationale of other district courts in the Seventh Circuit, that "[i]n the absence of a controlling Supreme Court ruling, a federal district court is required to give great weight to the pronouncements of its Court of Appeals, even though those pronouncements appear by way of dictum..we cannot assume that our Court of Appeals writes merely for intellectual exercise." Max M. v. Thompson, 585 F.Supp. 317, 324 (N.D.Ill. 1984), see also United States v. Fuchs, No. 12-CR-46-JPS, 2012 WL 2160526 (E.D. Wis. June 13, 2012) (finding that even if the Seventh Circuit's dismissal of an APA-interim rule argument in Dixon was dicta, the court was nevertheless "constrained by Dixon to accept the interim rule as valid. In turn, the February 28, 2007 date controls as the effective retroactivity date in this case."). Additionally, as noted above, Carr did not abrogate Dixon's rebuff of this APA-interim rule argument.

Further, even if the Seventh Circuit had been silent on this issue, Mr. Lesure has not shown that the Attorney General lacked good cause to apply the 5 U.S.C. § 553(b)(3)(B) rule making exception. The Attorney General's citation to the public interest was explicit and well-reasoned.

72 Fed.Reg.8894, 8896-97 (2007) ("Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders....The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented"). There was good cause for ...


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