4th Circuit upholds registry requirement

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A man who was convicted of rape and murder in 1980 was properly made to register as a sex offender under a 2006 federal law that Maryland has yet to implement, the 4th U.S. Circuit Court of Appeals has held.

Michael E. Kennedy’s parole officer acted properly in telling him to register under the Sex Offender Registration and Notification Act, despite the state’s inaction on implementation, a panel of the Richmond, Va.-based court decided Thursday.

Kennedy’s lawyer, Assistant Federal Public Defender Paresh S. Patel, said he will file a certiorari petition with the Supreme Court. He said the appeals court’s holding means that unless state law specifically prohibits someone from registering as a sex offender — which, to his knowledge, no law does — the person could be required to register.

“It’s an absurd proposition that unless the registry says that you cannot come and register here, that they have to come register,” Patel said. “Just as you cannot go and volunteer to serve a sentence, you can’t volunteer to serve on the state registry.”

Rod J. Rosenstein, U.S. Attorney for Maryland, said that while the decision affects a relatively small number of sex offenders, it is important nonetheless.

“It’s significant because the court has reaffirmed that defendants have an independent obligation to register under SORNA without regard to whether state law is fully compliant with SORNA,” Rosenstein said. “If the defendant can register under federal law he is required to register, which I think is the right result, and hopefully it will eliminate disputes because defendants who are ordered to register will recognize that they should just go ahead and register instead of litigating it.”

Kennedy, who was the subject of a 2008 Daily Record article on sex offender registration, was convicted of rape and murder by a federal jury in 1980. He was convicted of raping and strangling a Mexican woman who had tried to sneak across the California border while he was on duty as a federal Immigration and Naturalization officer.

He was released on parole in 2000. SORNA, enacted in 2006, made certain sex offender registration provisions retroactive, meaning people convicted of SORNA-applicable offenses before 2006 would still have to register. In 2007, Kennedy’s parole officer instructed him to register.

Kennedy protested that order, challenging SORNA’s constitutionality and arguing that SORNA did not apply to him because Maryland law did not require him to register.

The U.S. District Court in Maryland disagreed with Kennedy, and he appealed. Last October, in an unpublished opinion, the 4th Circuit affirmed on the grounds that Kennedy was, in fact, required to register under Maryland law.

On Kennedy’s petition for rehearing, the 4th Circuit issued a published opinion again affirming the district court, but this time on different grounds.

Thursday’s decision held that since SORNA imposes obligations directly on sex offenders, not on states, Kennedy’s probation officer acted properly in making him register.

“Kennedy overlooks the fact that the section of the National Guidelines on which he relies addresses the duty of jurisdictions to identify and register sex offenders who cannot be registered under the ordinary initial registration procedure,” Judge Paul V. Niemeyer wrote for the 4th Circuit panel. “That section does nothing to negate Kennedy’s independent duty as a sex offender to register under SORNA.”

Kennedy’s argument that he could not register because Maryland law did not require him to do so is faulty because the law did not prohibit him from registering, Niemeyer wrote.

“Kennedy currently is registered in Maryland, which should put to rest any concern that his registration would be rejected by the State of Maryland even though required by the U.S. Parole Commission and SORNA,” he wrote.

Patel said the Kennedy decision is inconsistent with the 4th Circuit’s decision last year in the case of a convicted sex offender named Brian L. Gould, which Patel also handled. In the Gould case, the appeals court rebuffed Gould’s challenge to SORNA but held that Gould would have been “unable to comply” with registration only if he was “required to register under SORNA but … was not previously required to register under state law.”

Kennedy, unlike Gould, was in that situation, Patel said.

“That’s where I think the court got it really wrong in Kennedy, because they went against their own decision in Gould and now say that being able to register just means a registry has to exist,” he said.

WHAT THE COURT HELD

Case: Kennedy v. Allera et al., U.S. 4th No. 08-8513. Published. Opinion by Niemeyer. Filed July 15, 2010.
Issues: Was the order for Kennedy to register as a sex offender unreasonable?
Holding: No; affirmed. Because the Sex Offender Registration and Notification Act lawfully imposes registration obligations directly on sex offenders, Kennedy’s probation officer acted within his discretion in requiring Kennedy to register.
Counsel: Asst. Federal P.D. Paresh S. Patel for appellant; Asst. U.S. Atty. Larry David Adams for appellee.
RecordFax #10-0715-60 (16 pages)