United States v. Burns ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4909
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEITH LEE BURNS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. James C. Turk, Senior
District Judge. (7:09-cr-00016-jct-1)
Argued: December 8, 2010 Decided: March 21, 2011
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and David A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Chief Judge Traxler and Senior Judge Faber joined
except as to Part III. Chief Judge Traxler wrote a separate
concurring opinion, in which Senior Judge Faber joined.
ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant. Adam Benjamin
Spencer, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal
Public Defender, Allegra M. C. Black, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant. Timothy J. Heaphy, United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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WYNN, Circuit Judge:
Defendant Keith Lee Burns was convicted of traveling
interstate and knowingly failing to update his sex offender
registration as required by the Sex Offender Registration and
Notification Act (“SORNA”). 18 U.S.C. § 2250(a) (2006)
(“failure-to-register statute”); 42 U.S.C. §§ 16913 (2006). On
appeal, Burns challenges his conviction on constitutional
delegation, ex post facto, and venue grounds. After careful
review, we reject each challenge and affirm Burns’s conviction.
I.
On January 9, 2004, Burns was convicted in a Virginia state
court of possession of obscene material. Following that
conviction, Burns registered as a sex offender in Virginia on
January 23, 2004.
Burns later became subject to SORNA’s registration
requirements, which were enacted on July 27, 2006. Sex Offender
Registration & Notification Act, Pub. L. No. 109-248, 120 Stat.
590 (2006). SORNA imposed on convicted sex offenders duties to
“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). Sex offenders convicted after SORNA’s enactment are
required to register “before completing a sentence of
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imprisonment with respect to the offense giving rise to the
registration requirement,” or within three business days of
sentencing if the offender did not receive a prison term. Id.§ 16913(b).
Regarding sex offenders convicted prior to SORNA’s
enactment, Congress delegated to the Attorney General the
authority to determine whether SORNA’s registration requirements
would apply to them. Id. § 16913(d) (“The Attorney General
shall have the authority to specify the applicability of the
requirements of this subchapter to sex offenders convicted
before the enactment of this chapter or its implementation in a
particular jurisdiction, and to prescribe rules for the
registration of any such sex offenders . . . .”). Pursuant to
that authority, the Attorney General published a rule on October
28, 2007 announcing that the “requirements of [SORNA] apply to
all sex offenders, including sex offenders convicted of the
offense for which registration is required prior to the
enactment of that Act.” 28 C.F.R. § 72.3 (2007).
In February 2008, Burns, who was convicted prior to SORNA’s
enactment, moved from Virginia to California, where he was
arrested on July 2, 2008. In April 2009, Burns was indicted in
the District Court for the Western District of Virginia for
failure to register. Burns pled guilty but reserved his right
to appeal the conviction.
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II.
On appeal, Burns first argues that his conviction is
invalid because Congress unconstitutionally delegated to the
Executive Branch the authority to apply SORNA retroactively to
pre-enactment sex offenders. Burns contends that the decision
to apply SORNA retroactively is a nondelegable legislative
function. We review this constitutional question de novo. S.C.
Med. Ass’n v. Thompson, 327 F.3d 346, 349-50 (4th Cir. 2003);
see also United States v. Hall, 551 F.3d 257, 266 (4th Cir.
2009) (“We review de novo a properly preserved constitutional
claim.”).
Congress may, and routinely does, delegate authority to the
Executive Branch to implement legislative policy. “So long as
Congress ‘shall lay down by legislative act an intelligible
principle to which the person or body authorized to [exercise
the delegated authority] is directed to conform, such
legislative action is not a forbidden delegation of legislative
power.’” Mistretta v. United States, 488 U.S. 361, 372 (1989)
(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.
394, 409 (1928)). Even a general legislative directive is a
constitutionally sufficient, intelligible principle “‘if
Congress clearly delineates the general policy, the public
agency which is to apply it, and the boundaries of this
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delegated authority.’” Id. at 372-73 (quoting Am. Power & Light
Co. v. SEC, 329 U.S. 90, 105 (1946)).
Regarding SORNA, we readily conclude that Congress provided
an intelligible principle to guide the Attorney General in
exercising his delegated authority. Congress stated that
SORNA’s purpose is “to protect the public from sex offenders and
offenders against children” through “a comprehensive national
system for the registration of those offenders.” 42 U.S.C.
§ 16901. With the failure-to-register statute, Congress
criminalized a sex offender’s failure to comply with SORNA’s
registration requirements, defining and specifically setting out
the elements of that offense. 18 U.S.C. § 2250(a). As this
Court has previously stated, Congress delegated to the Attorney
General “the authority both to ‘specify the applicability’ of
SORNA with regard to pre-SORNA offenders and to prescribe
registration rules for all pre-SORNA offenders and for other sex
offenders who are unable to comply with the initial registration
requirements.” United States v. Hatcher, 560 F.3d 222, 227 (4th
Cir. 2009) (quoting 42 U.S.C. § 16913(d)).
That authority, however, was substantially bounded by the
policies and requirements set forth in SORNA, as well as the
elements spelled out in the failure-to-register statute. See,
e.g., United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010)
(concluding that the Attorney General’s delegated authority is
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“highly circumscribed” because SORNA “includes specific
provisions delineating what crimes require registration; where,
when, and how an offender must register; what information is
required of registrants; and the elements and penalties for the
federal crime of failure to register” (citations omitted));
United States v. Whaley, 577 F.3d 254, 264 (5th Cir. 2009)
(stating that SORNA’s statement of purpose in 42 U.S.C. § 16901is a guiding intelligible principle); United States v. Ambert,
561 F.3d 1202, 1213-14 (11th Cir. 2009) (describing SORNA’s
broad policy goals as guiding intelligible principles). In
other words, Congress did not give the Attorney General
unbridled discretion to impose different registration
requirements or to create a new criminal offense to be applied
to pre-enactment sex offenders. Guzman, 591 F.3d at 93;
Hatcher, 560 F.3d at 227. Instead, Congress delineated the
“general policy” and set forth discernible boundaries within
which the Attorney General could exercise delegated authority.
Mistretta, 488 U.S. at 372-73. Therefore, Congress provided an
intelligible principle, and we reject Burns’s delegation
argument.
III.
Next, Burns argues that his failure-to-register conviction
violates the Ex Post Facto Clause because his conviction for the
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underlying sex offense occurred long before SORNA and the
failure-to-register statute were enacted. We review this
question of law de novo. Plyler v. Moore, 129 F.3d 728, 734
(4th Cir. 1997).
Burns is correct that the “Ex Post Facto Clause prohibits
punishment of a defendant ‘for an act which was not punishable
at the time it was committed.’” United States v. Gould, 568
F.3d 459, 466 (4th Cir. 2009) (quoting Weaver v. Graham, 450
U.S. 24, 28 (1981)). However, Burns overlooks the fact that his
failure-to-register conviction stems from post-enactment
conduct. He was convicted for moving from Virginia to
California and failing to register in that state in July 2008,
well after SORNA and the failure-to-register statute were
enacted and the Attorney General announced that they applied to
pre-enactment sex offenders.
Indeed, we rejected the same ex post facto argument in
Gould, explaining as follows:
Gould was punished for failing to register during the
period after SORNA was enacted, beginning at least as
early as February 28, 2007, when the Attorney General
issued his Interim Regulations clarifying that SORNA
applied to pre-SORNA sex offenders. Because Gould was
punished for his conduct after enactment of the SORNA
provision criminalizing the conduct, his punishment
does not violate the Ex Post Facto Clause.
Id.; see also United States v. Shenandoah, 595 F.3d 151, 158-59
(3d Cir. 2010). We reject Burns’s argument that his failure-to-
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register conviction is an ex post facto punishment for the same
reasons. *
IV.
Finally, Burns argues that the Western District of Virginia
was the improper venue for his prosecution because the offense
*
By citing to Smith v. Doe, 538 U.S. 84 (2003), in his
Opening and Reply Briefs, Burns arguably seeks to present the
issue of whether the registration requirements of SORNA
constitute an ex post facto punishment for his 2004 sex offense
conviction. However, that argument is not adequately presented
in his briefs by relevant analysis and citation. Additionally,
the Government has not briefed that issue before this Court.
Accordingly, an ex post facto challenge to SORNA’s registration
requirements is not properly before this Court. 11126 Balt.
Blvd., Inc. v. Prince George’s Cnty., Md., 58 F.3d 988, 993 n.7
(4th Cir. 1995) (en banc).
But even if it is presented, the “majority concurring”
opinion hardly answers it. The Eighth Circuit in United States
v. May, 535 F.3d 912 (8th Cir. 2008), after initially holding
that “SORNA’s registration requirement” is nonpunitive because
“Congress described SORNA as a public safety measure,” id. at
920 (citing 42 U.S.C. § 16901), purported to inquire whether
“the statutory scheme is so punitive [in effect] that it negates
Congress’s intention to deem the act civil.” Id. But the court
actually resolved the issue on the basis that 18 U.S.C. § 2250(the failure–to-register statute) “does not punish an individual
for previously being convicted of a sex crime.” Id. That is
the same issue resolved by this Court in this opinion, and by
another panel of this Court in Gould. Like the Eighth Circuit
in May, the “majority concurring” opinion does not scrutinize
SORNA’s registration requirements under the factors required by
Smith to determine whether SORNA’s registration requirements are
so punitive in effect as to override the Act’s statement of
regulatory intent. In short, neither May nor the “majority
concurring” opinion resolves an ex post facto challenge to
SORNA’s registration requirements.
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occurred in California, where SORNA required him to register.
The proper venue is a question of law, which we review de novo.
United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001).
Criminal defendants have a constitutional right to be tried
“by an impartial jury of the State and district wherein the
crime shall have been committed . . . .” U.S. Const. amend. VI;
see also Fed. R. Crim. P. 18 (“Unless a statute or these rules
permit otherwise, the government must prosecute an offense in a
district where the offense was committed.”). However, Burns’s
violation of 18 U.S.C. § 2250(a) necessarily involved more than
one district because he traveled interstate from Virginia to
California, where he failed to register. In this situation,
venue is governed by 18 U.S.C. § 3237(a), which states that “any
offense against the United States begun in one district and
completed in another, or committed in more than one district,
may be inquired of and prosecuted in any district in which such
offense was begun, continued, or completed.”
Burns’s offense began in Virginia because his move from
that state gave rise to his duty to register in California,
where Burns’s offense was completed when he failed to register.
42 U.S.C. § 16913(c). Because Burns’s offense began when he
moved from Virginia, thereafter failing to register in
California, venue was proper in the Western District of
Virginia. See, e.g., United States v. Howell, 552 F.3d 709,
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717-18 (8th Cir. 2009) (holding that venue for a failure-to-
register prosecution was proper in the Northern District of
Iowa, from which the defendant moved to Texas where he failed to
register). Accordingly, we reject this argument.
V.
Because none of Burns’s arguments has merit, we affirm his
conviction for failing to register under 18 U.S.C. § 2250(a).
AFFIRMED
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TRAXLER, Chief Judge, concurring:
I concur in Parts I, II, IV, and V of Judge Wynn’s opinion
and in the result reached in Part III. However, because my
understanding of the ex post facto argument Burns raises and my
analysis of Burns’s argument differ from that of my colleague, I
write separately regarding that issue.
I understand Burns’s argument to be that we
should find that because the FFR statute, applied to
persons like Mr. Burns whose conviction of a sex
offense long predated the FFR’s implementation,
creates new penalties not known or contemplated at the
time the appellant committed his offense, enforcement
of the FFR statute against him violates the ex post
facto clause of the United States Constitution.
Appellant’s brief at 14. For the reasons explained in United
States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008), I disagree
with Burns.
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