A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Candace Cain, Esq., Assistant Federal Public Defender in Pittsburgh, has obtained the grant of a Petition for a Writ of Certiorari from the U.S. Supreme Court. The case is Reynolds v. United States, #10-6549. The Court will review a nonprecedential Opinion of the United States Court of Appeals for the Third Circuit filed on May 14, 2010, docket No. 08-4747.

A grand jury in the United States District Court for the Western District of Pennsylvania returned an indictment charging the appellant, Billy Joe Reynolds, with one count of violating 18 U.S.C. § 2250(a), in that he failed to register under the Sex Offender Registration and Notification Act after having been convicted in 2001 in Missouri of a felony sex offense. The appellant traveled in interstate commerce when he left Missouri for Pennsylvania in 2007 and did not register in Pennsylvania after arriving. Note that SORNA was enacted on July 27, 2006; the final SORNA guidelines were not enacted until August 1, 2008.

The Third Circuit Court of Appeals per Judge Smith determined that Mr. Reynolds’ claims concerning retroactivity, the Ex Post Facto Clause and due process were foreclosed by its decision in United States v. Shenandoah, 595 F.3d 151 (3d Cir. 2010). The Court also held that Mr. Reynolds lacked standing to raise certain isues. Also, the Court determined that Mr. Reynolds’ argument that he was actually innocent of violating SORNA was foreclosed by the appellate waiver in his plea agreement.

The Solicitor General contended that the Court should have denied this petition because the question whether the Attorney General’s Interim Rule, 28 CFR § 72.3, is valid “is narrow, transitory, and of diminishing importance.” However, Ms. Cain cited the United States Court of Appeals for the Sixth Circuit decision in United States v. Utesch, 596 F.3d 302, 310 (6th Cir. 2010) that the Attorney General’s Interim Rule was not properly promulgated, is invalid, and cannot support a prosecution. Therefore, it appears that the Court will have an opportunity to rule on the retroactivity issue of SORNA in this case.


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