The End of the Road for the Madera Case

I've been following the Madera case for a while now and when I was out of town, the decision from the 11th Circuit was filed. Basically, the court found for Madera because the prosecution was before a declaration of retroactive application. As a result, the court did not decide the constitutional issues. Here is a portion of the opinion:

    In so finding, we reject the Government’s argument that the Attorney General was not given full discretion to determine whether SORNA would be retroactively applied to sex offenders convicted before its enactment. We cannot agree that 42 U.S.C. § 16913(d) “addresses only those offenders unable to comply with the timing requirements for initial registration under § 16913(b).” We recognize, as have some district courts, that “[t]here is a tension between the title of subsection (d) and its text.” United States v. Gould, 526 F. Supp. 2d 538, 543 (D. Md. 2007). Subsection (d)’s title indicates that it applies to the “Initial registration of sex offenders unable to comply with subsection (b) of this section....” We read the text, as did the Kapp court, among others, as being comprised of two clauses. The first gives the Attorney General authority to determine whether SORNA applies retroactively to all sex offenders, and the second gives the Attorney General authority to promulgate rules regarding initial registration.
    Thus, we find that Congress vested the Attorney General with sole discretion to determine SORNA’s retroactivity.

I think this opinion probably spells the end of the Madera case. Even though the government may appeal to the USSC, I can't imagine cert will be granted. Because the grounds decided are relatively narrow and there is no circuit split, this case has no real appeal for the Court. Even if the Court wants to decide some AWA related issues, it couldn't do so in Madera until a subsequent remand and new decision by the 11th Circuit. So, it will have to be another case besides Madera to determine the constitutionality of the AWA's registration provisions.  Maybe it will be Powers.

Sentencing Law & Policy is covering the opinion here.