United States v. Steven Stewart ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4420
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN RAY STEWART,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg. Norman K. Moon, Senior
District Judge. (6:10-cr-00015-nkm-1)
No. 11-4471
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STANLEY H. CARLSON, a/k/a Stanley Harold Carlson,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:10-cr-00027-gec-bwc-1)
Submitted: December 7, 2011 Decided: January 18, 2012
Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Allegra M.C. Black,
Andrea Lantz Harris, Assistant Federal Public Defenders,
Christine Madeleine Lee, Research and Writing Attorney, Roanoke,
Virginia, for Appellants. Timothy J. Heaphy, United States
Attorney, Anthony P. Giorno, First Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Steven Ray Stewart
appeals his conviction and thirty-month sentence following his
guilty plea to one count of traveling in interstate commerce and
failing to register or update a registration, as required by the
Sex Offender Registration and Notification Act (“SORNA” or “the
Act”), in violation of 18 U.S.C. § 2250(a) (2006), and Stanley
H. Carlson appeals his conviction and twenty-seven-month
sentence following his guilty plea to the same offense.
Appellants argue that the relevant provisions of the SORNA that
required them to register as sex offenders, see 42 U.S.C.A.
§ 16913 (West Supp. 2011), are unconstitutional. Stewart also
raises a separate venue challenge. We affirm.
Appellants argue that the district court erred in
denying their motions to dismiss the indictments against them.
They contend that, in enacting the SORNA, Congress violated the
non-delegation doctrine by impermissibly delegating legislative
functions to the Attorney General; namely, the discretion to
determine whether the SORNA’s registration requirements would
apply to sex offenders convicted prior to the Act’s enactment.
We review de novo the district court’s denial of a motion to
dismiss an indictment. United States v. Brandon, 298 F.3d 307,
310 (4th Cir. 2002). Additionally, properly preserved
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constitutional claims 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’ 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
constitutionally sufficient intelligible principle if Congress
“clearly delineates the general policy, the public agency [that]
is to apply it, and the boundaries of th[e] delegated
authority.” Mistretta v. United States, 488 U.S. 361, 372-73
(1989) (internal quotation marks omitted).
Appellants contend there is no intelligible principle
guiding the Attorney General in his discretion. We agree with
the other courts of appeal that have considered this issue in
concluding that this claim is without merit. See, e.g., United
States v. Guzman, 591 F.3d 83, 93 (2d Cir.) (concluding that the
Attorney General’s delegated authority is “highly circumscribed”
because the SORNA “includes specific provisions delineating what
crimes require registration; where, when, and how an offender
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must register; what information is required of registrants; and
the elements and penalties for the federal crime of failure to
register” (internal citations omitted)), cert. denied, 130
S. Ct. 3487 (2010); United States v. Whaley, 577 F.3d 254, 264
(5th Cir. 2009) (holding that the SORNA’s statement of purpose
in 42 U.S.C.A. § 16901 is a guiding intelligible principle);
Ambert, 561 F.3d at 1213-14 (describing the SORNA’s broad policy
goals as intelligible principles).
Further, we reject Appellants’ argument that our
decision in United States v. Hatcher, 560 F.3d 222 (4th Cir.
2009), compels a contrary conclusion. Contrary to Appellants’
argument, nothing in the Hatcher decision calls into question
the constitutionality of Congress’ delegation of authority to
the Attorney General under the SORNA. We therefore conclude
that Appellants’ non-delegation doctrine argument is without
merit.
Stewart also argues that the district court erred in
denying his motion to dismiss the indictment because the Western
District of Virginia was the improper venue for his prosecution.
We review the district court’s determination on venue de novo.
United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001).
Venue lies in the state and in the district where the
offense at issue was “committed.” U.S. Const. art. III, § 2,
cl. 3; Fed. R. Crim. P. 18. A determination of where an offense
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is “committed” is to be made with reference to the criminal act
proscribed by the statute. Johnston v. United States, 351 U.S.
215, 220 (1956). If the statute does not provide explicit
guidance, the location of the offense for venue purposes “must
be determined from the nature of the crime alleged and the
location of the act or acts constituting it.” United States v.
Anderson, 328 U.S. 699, 703 (1946).
Stewart’s violation of § 2250(a) necessarily involved
more than one district because he traveled interstate from
Virginia to Kentucky, where he failed to register. In such a
situation, venue is governed by 18 U.S.C. § 3237(a) (2006),
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.” Stewart’s offense began in Virginia because his
move from that state gave rise to his duty to register in
Kentucky, where his offense was completed when he failed to
register. 42 U.S.C.A. § 16913(c). Because Stewart’s offense
began when he moved from the Western District of Virginia,
thereafter failing to register in Kentucky, venue was proper in
the Western District of Virginia. See, e.g., United States v.
Howell, 552 F.3d 709, 717–18 (8th Cir. 2009) (holding that venue
for a failure-to-register prosecution was proper in the Northern
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District of Iowa, from which the defendant moved to Texas where
he failed to register). Accordingly, Stewart’s venue argument
is without merit.
We therefore affirm the judgments 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
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