In 1999, Anthony Ross was convicted in 1999 of sexual assault, a misdemeanor offense. In 2009 he moved from D.C. to Ohio. In 2010 he was indicted for failing to register with local authorities pursuant to the Sex Offender Registration and Notification Act (“SORNA”), which criminalizes the offense of “travel[ing] in interstate or foreign commerce,” and “knowingly fail[ing]” to update [the] registration when required by the act to do so. 18 U.S.C. § 2250(a).
Ross unsuccessfully moved to dismiss the indictment and, after entry of a conditional guilty plea, appealed. He advanced two grounds, the first based on the fact that his conviction preceded SORNA’s enactment. Ross contended that SORNA did not apply to those whose alleged conduct preceded the new law’s enactment because the Attorney General had bypassed the “notice and comment” requirements of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., in defining what pre-enactment conduct ran afoul of SORNA’s registration requirements.
Ross’s second claim, which the Court of Appeals did not reach, was that SORNA’s vesting in the Attorney General the power to define (“specify”) whether a pre-SORNA conviction fell under the new law violated the constitutional rule against undue delegation of legislative authority. (Slip Op. at 2-3). The Court of Appeals took pains to note that the latter, non-delegation claim, has sparked much recent litigation, typically adverse to the defense – albeit with a dissent by a certain judge in United States v. Nichols, 784 F.3d 666, 667-77 (10th Cir. 2015) (Gorsuch, J., dissenting from denial of rehearing en banc). The panel majority (Williams and Pillard, JJ) found it unnecessary to tackle that thorny issue because resolving the first ground of Ross’s appeal was sufficient to prove error and cause the indictment to be dismissed.