United States v. Raymond Mitchell , 498 F. App'x 258 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4393
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RAYMOND MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cr-00144-RAJ-TEM-1)
Submitted: November 19, 2012 Decided: November 30, 2012
Before WILKINSON, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, V. Kathleen Dougherty,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raymond Mitchell appeals the criminal judgment
imposing a thirty-month sentence following Mitchell’s
conditional guilty plea to travelling in interstate commerce and
failing to register or update a registration as required by the
Sex Offender Registration and Notification Act (“SORNA”), in
violation of 18 U.S.C. § 2250(a) (2006). Mitchell argues that
Congress violated the non-delegation doctrine, the Ex Post Facto
Clause, and the Commerce Clause in enacting SORNA. For the
reasons that follow, we reject these arguments and affirm.
We review de novo a district court’s denial of a
motion to dismiss an indictment based purely on legal grounds.
United States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).
Properly preserved constitutional claims also are reviewed de
novo. United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009).
“The non-delegation doctrine is based on the principle
of preserving the separation of powers between the coordinate
branches of government.” United States v. Ambert, 561 F.3d
1202, 1212 (11th Cir. 2009). Congress’s delegation of authority
to another branch of government does not offend the
non-delegation doctrine as long as Congress has delineated an
“intelligible principle” guiding the exercise of that authority.
J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409
(1928). Even a general legislative directive is a
2
constitutionally sufficient “intelligible principle” so long as
Congress “clearly delineates the general policy, the public
agency which is to apply it, and the boundaries of this
delegated authority.” Mistretta v. United States, 488 U.S. 361,
372-73 (1989).
Mitchell contends that there is no intelligible
principle guiding the Attorney General’s exercise of his
discretion to determine SORNA’s retroactive application.
Although this court has not resolved this issue in published
authority, we have consistently rejected this argument in
unpublished decisions. See United States v. Clark, 2012 WL
2109246 (4th Cir. June 12, 2012) (No. 11-5098), petition for
cert. filed, __ U.S.L.W. __ (U.S. Aug. 30, 2012) (No. 12-6067);
United States v. Rogers, 468 F. App’x 359, 361-62 (4th Cir.
2012) (No. 10-5099) (argued but unpublished), cert. denied, __
S. Ct. __ (U.S. Oct. 1, 2012) (No. 11-10450); United States v.
Stewart, 461 F. App’x 349, 351-52 (4th Cir.) (Nos. 11-4420/4471)
(per curiam), cert. denied, 132 S. Ct. 2446 (2012); United
States v. Burns, 418 F. App’x 209, 213 (4th Cir. 2011) (No.
09-4909) (argued but unpublished). Additionally, other circuits
to consider the issue have concluded that this claim lacks
merit. See, e.g., United States v. Guzman, 591 F.3d 83, 93 (2d
Cir.), cert. denied, 130 S. Ct. 3487 (2010); United States v.
Whaley, 577 F.3d 254, 264 (5th Cir. 2009); Ambert, 561 F.3d at
3
1213-14. Based on these persuasive authorities, we likewise
reject Mitchell’s non-delegation challenge.
Mitchell further challenges SORNA under the Ex Post
Facto Clause and the Commerce Clause. However, as Mitchell
concedes, these issues are foreclosed by this court’s decision
in United States v. Gould, 568 F.3d 459 (4th Cir. 2009).
Because “a panel of this court cannot overrule, explicitly or
implicitly, the precedent set by a prior panel of this court,”
United States v. Rivers, 595 F.3d 558, 564 n.3 (4th Cir. 2010)
(internal quotation marks and alteration omitted), we conclude
that Mitchell’s challenges must fail.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
4