United States v. Johnson

Undra Demetrius Johnson (defendant) was convicted of a sex offense in 1995. The Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), was enacted in July 2006. In February 2007, the United States attorney general (AG) issued an interim regulation that went into immediate effect to apply SORNA retroactively, without complying with the notice-and-comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. § 551 et seq. In the preamble to the interim rule, the AG explained that the APA’s good-cause exception excused compliance with rulemaking procedures, primarily because retroactive application was consistent with Congress’s goal of SORNA protecting the public from sex offenders. The AG accepted post-promulgation comments through April 30, 2007, but did not respond to those comments. Days later, the AG commenced rulemaking for implementing all aspects of SORNA, including retroactive application of the registration requirement. After the AG received and responded to comments on SORNA’s retroactivity, the final regulations went into effect in July 2008. After moving to Mississippi in 2008, Johnson failed to register with the state’s sex-offender registry as required by SORNA. Johnson was convicted in federal district court for violating SORNA. Johnson appealed his conviction to the United States Court of Appeals for the Fifth Circuit, challenging the AG’s promulgation of rules applying SORNA retroactively.