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Sixth Circuit Addresses Retroactive Application of SORNA

In July 2006, Congress passed the Sex-Offender Registration and Notification Act ("SORNA"), which provides federal criminal penalties for sex offenders who move across state lines and fail to comply with sex offender registration requirements. The act indicated that the Attorney General would have the authority to specify how and to what extent the act would apply to sex offenders convicted before enactment of SORNA or before implementation of SORNA in a particular jurisdiction. Subsequently, the Attorney General has indeed ruled that the provisions of SORNA are to apply to all sex offenders, regardless of when the convictions occurred and regardless of when implemented in particular jurisdictions. Federal courts are still trying to sort out which offenders are subject to SORNA and which are not.

The Sixth Circuit has been active in the debate among federal circuits and has issued another important ruling in U.S. v. Trent 08-4482 (6th Cir. 8-5-2011). Trent was convicted of a sex offense in Indiana in May 2007. In December 2007, he was discovered in Ohio, arrested by federal authorities and charged under SORNA for failing to register there as a sex offender. He pled guilty, reserving the right to appeal the issue of whether SORNA applied to him, as it had not yet been implemented in Ohio.

After Trent's plea but before ruling on his case, the Sixth Circuit ruled in another case that SORNA did not apply to any offender convicted before enactment until the Attorney General issued its guidelines on retroactivity, the effective date of which the Sixth Circuit determined to be August 1, 2008. U.S. v. Utesch, 596 F.3d 302 (6th. Cir. 2010). In the Trent case, the Sixth Circuit ruled that it also does not apply to those in jurisdictions where SORNA was not implemented prior to the effective date of the Attorney General guidelines. Trent was not, in the view of the Sixth Circuit, subject to SORNA in November 2007, which is when he was alleged to have failed to comply with it. His conviction was reversed.

Trent may still have been in violation of Ohio sex offender registration requirements.

The Sixth Circuit notes in the Trent opinion that there is disagreement among the federal appeals circuits on this issue. Some have ruled that SORNA is retroactive independent of the Attorney General Guidelines. Others have agreed that retroactivity is dependent on the effective date of the guidelines, but have determined different effective dates of the guidelines.

For more information on the applicability of specific federal criminal statutes, contact Hindman & Associates.

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