Post-Chevron Persuasive Deference & Transient Residency under SORNA
Comprehensive Commentary on United States v. Jason Kokinda, 4th Cir., 28 July 2025

1. Introduction

United States v. Jason Kokinda is the Fourth Circuit’s first published decision to squarely address how federal courts should treat an agency’s interpretive guidelines after the Supreme Court’s landmark Loper Bright Enterprises v. Raimondo (2024) overruled Chevron. The panel (Judges Thacker, Agee, Rushing) confronted the issue in the context of the Sex Offender Registration and Notification Act (SORNA) and its implementing “SMART Guidelines,” while also considering constitutional and sentencing challenges.

The defendant, Jason Steven Kokinda, a previously convicted sex offender, traveled through several states while purposely avoiding registration. He was indicted under 18 U.S.C. § 2250(a) for failure to register and, after a jury conviction, received a 63-month sentence plus lifetime supervised release. On appeal (following a remand from the Supreme Court), Kokinda argued:

• the jury instruction wrongly broadened SORNA’s definition of where an offender “resides”;
• SORNA’s application violated the Tenth Amendment’s anti-commandeering doctrine;
• an eight-level sentencing enhancement for a new sex offense and child-porn possession was unsupported; and
• the lifetime term of supervised release was unreasonable.

The Fourth Circuit affirmed on all grounds and, in doing so, articulated a new doctrinal approach to agency guidance in the post-Chevron era and clarified that mobile/transient offenders who spend 30 aggregate days in a jurisdiction “habitually live” there and must register.

2. Summary of the Judgment

1. Jury Instruction. Although the SMART Guidelines can no longer claim Chevron deference, they remain persuasive. The district court properly adopted their 30-day/“habitually lives” gloss when charging the jury.
2. Tenth Amendment. Consistent with Kennedy v. Allera, SORNA neither conflicts with West Virginia law nor commandeers state officials; hence, no Tenth Amendment violation.
3. Sentencing. The court upheld the eight-level enhancement, finding by a preponderance of evidence that Kokinda (i) sexually abused a minor by grabbing her buttocks for gratification, and (ii) knowingly possessed child pornography.
4. Lifetime Supervised Release. Given Kokinda’s history and evasive behavior, a life term was procedurally and substantively reasonable under Gall.

3. Detailed Analysis

3.1 Precedents Cited & Their Influence

• Chevron U.S.A. v. NRDC (1984) – formerly mandated deference to reasonable agency interpretations of ambiguous statutes. Now overruled as to such deference.
• Loper Bright Enterprises v. Raimondo (2024) – abolished Chevron, directing courts to independently decide questions of law while still giving “persuasive” weight to agency expertise.
• Nichols v. United States (2016) – held that SORNA does not require notification after leaving a jurisdiction; distinguished here to reject Kokinda’s claim that transience exempts offenders.
• Kennedy v. Allera (4th Cir. 2010) & United States v. Under Seal (4th Cir. 2013) – upheld SORNA’s constitutionality and civil purpose; used to defeat the Tenth Amendment argument.
• Gall v. United States (2007) – framework for procedural/substantive reasonableness review of sentences.

3.2 Court’s Legal Reasoning

A. Post-Chevron Analytical Framework.
The court embraced Loper Bright’s instruction that courts must independently interpret statutes but may consult agency material for its “power to persuade.” Congress expressly authorised the Attorney General to “interpret and implement” SORNA (34 U.S.C. § 20912(b)), creating a delegated gap-filling space. The SMART Guidelines, issued after notice-and-comment, explained that a narrow “fixed abode” reading would undermine SORNA’s comprehensive purpose. Finding the explanation thorough and consistent, the panel treated the Guidelines as persuasive and adopted their 30-day standard.

B. Rejection of Rule-of-Lenity Claim.
Lenity applies only when “grievous ambiguity” remains after all interpretive tools. Because SORNA’s civil provisions are clarified by Congressional purpose and the Guidelines, and § 2250’s criminal elements are plain, the ambiguity threshold was not met.

C. Distinguishing Nichols.
Nichols dealt with an outward move to a foreign country; it does not sanction permanent itinerancy. Kokinda’s continuous presence in West Virginia for a month, with only brief out-of-state excursions, constituted a single change of residence triggering registration.

D. Tenth Amendment.
SORNA offers states a “choice” (risking a 10 % grant reduction) rather than commandeering. Moreover, West Virginia law allowed (indeed required) registration once Kokinda stayed 15 continuous days, so no conflict existed.

E. Sentencing Findings.
The district court credited testimonial and documentary evidence (e.g., the witness Bell, victim P.M.’s statement, forensic phone extraction) to find sexual contact for gratification and knowing possession of child pornography—each an independent “sex offense” under § 2A3.5(b)(1)(C). The panel deferred to these factual findings (absent clear error) and affirmed lifetime supervision as a protective measure.

3.3 Impact of the Decision

• Deference Landscape. The case offers an early roadmap for courts applying Loper Bright: agencies lose binding deference, yet well-reasoned agency guidance remains influential—especially where Congress explicitly delegated gap-filling authority.
• SORNA Compliance for Transients. Offenders who “live” 30 aggregate days in a state—even at campgrounds or shelters—must register; indefinite mobility is not a loophole.
• Rule of Lenity Boundaries. The opinion limits lenity arguments when civil regulatory schemes underpin a criminal offense.
• Sentencing Practices. Reinforces that uncharged conduct proved by preponderance can support § 2A3.5 enhancements, and lifetime supervised release is appropriate for repeat, evasive sex offenders.
• State-Federal Relations. Re-affirms SORNA’s constitutionality against anti-commandeering challenges—preserving federal uniformity in sex-offender tracking.

4. Complex Concepts Simplified

• SORNA. A federal law creating a nationwide system for registering sex offenders; failure to comply can be prosecuted federally.
• SMART Guidelines. DOJ rules explaining how SORNA should work; formerly given Chevron deference, now only persuasive.
• Chevron Deference. A doctrine (1984-2024) requiring courts to defer to reasonable agency interpretations of ambiguous statutes.
• Loper Bright. Supreme Court case that abolished Chevron; courts now decide statutory meaning themselves.
• Rule of Lenity. When a criminal law is hopelessly ambiguous after all interpretive methods, it is construed in the defendant’s favor.
• Anti-Commandering Doctrine. The federal government cannot compel states to enforce federal law; instead it may incentivize.
• Sentencing Guidelines § 2A3.5(b)(1)(C). Adds 8 offense levels if a defendant commits any new sex offense while unregistered.
• Preponderance of Evidence (sentencing). More likely than not; the standard courts use to find facts for guideline enhancements.

5. Conclusion

United States v. Kokinda marks an important transition point in administrative and criminal law. By treating the SMART Guidelines as persuasive rather than controlling, the Fourth Circuit faithfully applied Loper Bright while still honouring Congress’s intent to ensure a “comprehensive” sex-offender registry. The decision warns mobile offenders that sleeping in a tent for a month is enough to trigger registration duties, narrows opportunities for rule-of-lenity defenses, and confirms the continued vitality of SORNA against constitutional attack. For agencies, courts, and practitioners, Kokinda illustrates that rigorous, well-reasoned guidance will still wield significant influence—even in Chevron’s wake.