United States v. Joshua Sampsell ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4272
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JOSHUA JAMES SAMPSELL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Michael F. Urbanski,
District Judge. (5:12-cr-00037-MFU-1)
Submitted: September 24, 2013 Decided: October 1, 2013
Before NIEMEYER, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney,
Elizabeth G. Wright, Assistant United States Attorney,
Harrisonburg, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joshua James Sampsell appeals the criminal judgment
imposing a sentence of two years’ probation following Sampsell’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). Sampsell argues that
Congress violated the non-delegation doctrine and the Ex Post
Facto Clause in enacting SORNA. 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). We
also review properly preserved constitutional claims 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
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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) (internal quotation marks omitted). “The
government does not bear an onerous burden in demonstrating the
existence of an intelligible principle.” S.C. Med. Ass’n v.
Thompson, 327 F.3d 346, 350 (4th Cir. 2003).
On appeal, Sampsell asserts that Congress
impermissibly delegated the exclusively legislative authority to
determine SORNA’s retroactive applicability. Although this
court has not resolved this issue in published authority, we
have consistently rejected similar non-delegation challenges in
unpublished decisions. See United States v. Atkins, 498 F.
App’x 276, 278 (4th Cir. 2012) (No. 12-4208), petition for cert.
filed, __ U.S.L.W. __, (U.S. Feb. 28, 2013) (No. 12-9062);
United States v. Mitchell, 498 F. App’x 258, 260 (4th Cir. 2012)
(No. 12-4393), cert. denied, 133 S. Ct. 2854 (2013); United
States v. Clark, 483 F. App’x 802, 804 (4th Cir. 2012) (No.
11-5098), cert. denied, 133 S. Ct. 930 (2013); United States v.
Rogers, 468 F. App’x 359, 361-62 (4th Cir.) (No. 10-5099)
(argued but unpublished), cert. denied, 133 S. Ct. 157 (2012);
United States v. Stewart, 461 F. App’x 349, 351 (4th Cir.) (Nos.
11-4420/4471), cert. denied, 132 S. Ct. 2446 (2012); United
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States v. Burns, 418 F. App’x 209, 211-12 (4th Cir. 2011) (No.
09-4909) (argued but unpublished). Other circuits to consider
the issue have similarly concluded that Congress’s delegation to
the Attorney General of authority to determine SORNA’s
retroactivity did not violate the non-delegation doctrine. See,
e.g., United States v. Goodwin, 717 F.3d 511, 516-17 (7th Cir.
2013), petition for cert. filed, __ U.S.L.W. __, (U.S. Aug. 2,
2013) (No. 13-5762); United States v. Kuehl, 706 F.3d 917, 920
(8th Cir. 2013); United States v. Guzman, 591 F.3d 83, 93 (2d
Cir. 2010); United States v. Whaley, 577 F.3d 254, 264 (5th Cir.
2009); Ambert, 561 F.3d at 1213-14. Based on these persuasive
authorities, * we likewise reject Sampsell’s non-delegation
challenge.
*
While Sampsell intimates that the Attorney General was an
improper entity to determine SORNA’s retroactivity in part
because the Department of Justice is a “police agency” without a
scientific focus, we find this argument unpersuasive. See
United States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012)
(recognizing that retroactivity question required Attorney
General to determine whether SORNA’s general policy goals “would
be offset, in the case of pre-SORNA sexual offenders, by
problems of administration, notice and the like for this
discrete group of offenders—problems well suited to the Attorney
General’s on-the-ground assessment”). We also conclude that
Justice Scalia’s dissent in Reynolds v. United States, 132 S.
Ct. 975 (2012), in which he questioned whether SORNA may “sail[]
close to the wind” regarding proper legislative delegation, id.
at 986 (Scalia J., dissenting), does not overcome the weight of
persuasive authority rejecting non-delegation challenges to
SORNA.
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Sampsell also challenges SORNA under the Ex Post Facto
Clause. This issue is foreclosed by our decision in United
States v. Gould, 568 F.3d 459, 466 (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 Sampsell’s challenge 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 this court and argument would not aid the decisional
process.
AFFIRMED
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