Rehearing granted, March 4, 2010



                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-8513


MICHAEL EDWARD KENNEDY, #35377-098,

                  Petitioner - Appellant,

             v.

MICHAEL P. ALLERA, United States Probation Service; WILLIAM
S. HENRY, United States Probation Service; EDWARD F. REILLY,
Chairman, United States Parole Commission; JOHN JOSEPH
CURRAN, JR., Office of the Attorney General; KATHRYN
SEIFERT, Director, Eastern Shore Psychological Services,

                  Respondents - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Benson Everett Legg, Chief District
Judge. (1:05-cv-00129-BEL)


Submitted:    October 5, 2009                 Decided:   October 22, 2009


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Paresh S. Patel, Staff
Attorney,   Greenbelt,  Maryland,   for   Appellant.     Rod J.
Rosenstein, United States Attorney, Larry D. Adams, Assistant
United States Attorney, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Michael      Edward      Kennedy         appeals     the    district       court’s

denial of his 28 U.S.C. § 2241 (2006) petition and his motion

for a temporary restraining order.                        On appeal, Kennedy asserts

that the district court erred in finding that he was required to

register as a sex offender under the Sex Offender Registration

and Notification Act (“SORNA”), 42 U.S.C. § 16913(b) (2006);

that he was unable to “initially register” under SORNA; that

SORNA       violates      the   Commerce              Clause;     the     Attorney       General

violated      the    Administrative          Procedure           Act    (“APA”),     5    U.S.C.

§ 533(d) (2006), in retroactively applying SORNA without notice

and     a   comment       period;      and    that        the     United     States      Parole

Commission violated the Tenth Amendment in forcing Kennedy to

register in violation of Maryland law.                        We affirm.



               I. Kennedy’s registration under Maryland law

              Under SORNA, “a sex offender shall register, and keep

the     registration        current,         in        each     jurisdiction       where     the

offender resides, where the offender is an employee, and where

the offender is a student.”                       42 U.S.C. § 16913(a).                  Kennedy

first argues that, because Maryland law does not provide a means

for   him     to    register      as   a     sex       offender       because    his     offense

occurred      out    of   state     prior     to        1997,    he     cannot   comply     with

SORNA.       Allera responds that, regardless of Maryland law, SORNA

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requires      him    to    register.      We       review   questions    of   statutory

interpretation de novo.              United States v. Abuagla, 

,

278 (4th Cir. 2003).

              Kennedy’s arguments are premised on the notion that

Kennedy was not required to register as a sex offender under

Maryland law.         However, a review of Maryland law indicates that,

regardless of the requirements of Maryland’s registry at the

time    Kennedy      was     released    from      prison,    Kennedy    is   currently

required to register as a sex offender under Maryland law.                          The

Code of Maryland requires the registration of “sexually violent

offenders.”          Md. Code Ann., Crim. P. § 11-704(a)(3) (LexisNexis

2008).       A sexually violent offender is defined, for purposes of

the Maryland Code, as one who has been convicted of a sexually

violent       offense.         Md.    Code     Ann.,    Crim.    P.     § 11-701(j)(1)

(LexisNexis 2008).            Among other definitions, the Code defines a

sexually violent offense as a crime committed in another state

that,    if    had    been    committed       in    Maryland,   would    constitute   a

crime specifically enumerated in the sex offender registration

statute as one requiring registration.                      Md. Code Ann., Crim. P.

§ 11-701(k)(3).

              Kennedy was convicted of felony-murder and rape.                     See

United States v. Kennedy, 

, 971 (9th Cir. 1983).

One     of     the        specifically        enumerated        offenses      requiring

registration         is    first     degree    rape,    which    the    Maryland   Code

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defines as engaging in nonconsensual vaginal intercourse with

another    by        force,       and    suffocating,        strangling,         or   inflicting

serious physical injury while doing so.                            Md. Code Ann., Crim. L.

§ 3-303 (LexisNexis 2002); Md. Code Ann., Crim. P. § 11-701(k).

Though Kennedy was convicted of the federal equivalent of first

degree    rape        prior       to     the    enactment          of    laws    requiring        the

registration          of    sexually        violent        offenders       in    Maryland,        the

Maryland        statute       has       been     made       retroactive         “to   include       a

registrant       convicted          of    an    offense       committed         before     July    1,

1997,     and        who    is     under       the       custody    or    supervision        of     a

supervising authority on October 1, 2001.”                              Md. Code Ann., Crim.

P. § 11-702.1(a) (LexisNexis 2008).                           Kennedy was convicted of

rape prior to July 1, 1997, and was under parole supervision on

October 1, 2001.                 Accordingly, because Kennedy is required to

register     as       a     sex    offender          under    Maryland       law,     his    first

argument is without merit.

            Similarly, Kennedy’s argument that he was unable to

“initially register” under SORNA is without merit, as he was

required        to     do    so     under       Maryland       law.        Under      42    U.S.C.

§ 16913(b),

     The sex offender shall initially register --

     (1) before completing a sentence of imprisonment with
     respect to the offense giving rise to the registration
     requirement; or




                                                     4
        (2) not later than 3 business days after being
        sentenced for that offense, if the sex offender is not
        sentenced to a term of imprisonment.

Part (d) of § 16913 gave the Attorney General the authority to

specify     the         applicability         of     the     initial         registration

requirement        to      sex    offenders          convicted          before       SORNA’s

implication.        The Attorney General later issued a regulation

retroactively       applying       SORNA’s         registration         requirements      to

individuals,       like     Kennedy,      who        were        unable    to    initially

register, as they were convicted before SORNA’s enactment.                               See

28 C.F.R. § 72.3.          Though Kennedy asserts that this retroactive

application       still    does    not   afford      him     a    method    by   which    to

“initially register,” this argument is without merit, as he is

presently required to register by Maryland law.                              As we found

recently in United States v. Gould, 

, 466-67 (4th

Cir. 2009), “a sex offender is able to register under SORNA if

he   is    able     to     register      by       means     of     an     existing    state

registration facility, even if he was released before SORNA was

enacted.”     Therefore, this argument is without merit.



                                 II. Commerce Clause

            Kennedy next asserts that, if this court finds that

“SORNA creates an independent federal mandate on individuals to

register that is not dependent on state implementation of the

Act,”     then    SORNA     unconstitutionally              violates       the   Commerce

                                              5
Clause, as it “regulates purely intrastate activity that does

not substantially affect interstate commerce.”                However, we need

not    reach    the   issue   of   SORNA’s      Commerce   Clause    implications

because Maryland law requires Kennedy to register.



                      III. Administrative Procedure Act

               Kennedy next asserts that, if this court determines

that SORNA requires Kennedy to register, the Attorney General

violated the APA, by failing to provide notice and a comment

period.    Pursuant to 5 U.S.C. § 553(b), (d), proposed rules are

required to be published in the Federal Register for at least

thirty days prior to their effective dates, in order to give the

public time to comment.            Agencies can dispense with this notice

“when the agency for good cause finds . . . that notice and

public    procedure     thereon      are   impracticable,     unnecessary,         or

contrary to the public interest.”                  5 U.S.C. § 553(b).            When

promulgating the retroactive application of SORNA, the Attorney

General invoked this provision.                72 Fed. Reg. 8896.          Again, as

Kennedy    has    qualified    his    argument     by   stating     that    it   only

applies if this court determines SORNA requires him to register

as a sex offender independently of Maryland, we do not reach

this issue, as Kennedy was required to register under Maryland

law.



                                           6
                            IV. Tenth Amendment

            Finally, Kennedy asserts that the United States Parole

Commission lacked authority under the Tenth Amendment to force

Kennedy to register in Maryland when such registration violated

Maryland law.       However, because Maryland law required Kennedy to

register   as   a   sex   offender,   this   argument   is   wholly   without

merit.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument as the facts and legal

contentions are adequately expressed in the materials before the

court and argument would not aid the decisional process.

                                                                      AFFIRMED




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