United States v. Sean Terrell , 632 F. App'x 881 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-1038
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Sean Terrell
lllllllllllllllllllll Defendant - Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: November 16, 2015
Filed: December 21, 2015
[Unpublished]
____________
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
____________
PER CURIAM.
In January 2014, Fayetteville, Arkansas police arrested Sean Terrell after he
attempted to purchase alcohol with a counterfeit $20 bill. Police determined that
Terrell had an outstanding warrant in Iowa for failing to register as a sex offender.
They also determined that Terrell had not registered as a sex offender in Arkansas,
even though he had resided in the state for several months. Terrell was indicted for
failing to register pursuant to the Sex Offender Registration and Notification Act
(“SORNA”), 42 U.S.C. § 16913. See 18 U.S.C. § 2250. The district court1 denied
his motion to dismiss the indictment. Terrell conditionally pleaded guilty, preserving
his right to challenge the denial of his motion to dismiss. He now appeals.
“We review a challenge to the constitutionality of a federal statute de novo.”
United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008). We likewise review de
novo the denial of a motion to dismiss an indictment. United States v. Yielding, 657
F.3d 688, 702 (8th Cir. 2011).
SORNA requires “those convicted of certain sex crimes to provide state
governments with (and to update) information, such as names and current addresses,
for inclusion on state and federal sex offender registries.” Reynolds v. United States,
565 U.S. ---, 132 S. Ct. 975, 978 (2012); see 42 U.S.C. §§ 16913-16914. The
criminal offense provision provides for a penalty of up to ten years’ imprisonment for
a person who is required to register if that person “travels in interstate or foreign
commerce” and “knowingly fails to register or update a registration.” 18 U.S.C.
§ 2250(a).
In this appeal, Terrell raises two constitutional challenges to SORNA. First,
he argues that Congress violated the nondelegation doctrine by granting the Attorney
General authority to specify whether SORNA’s registration requirements apply
retroactively. Terrell contends that this delegation does not pass constitutional muster
because SORNA did not include an intelligible principle to guide the Attorney
General’s exercise of discretion. This argument is foreclosed by our decision in
United States v. Kuehl, 706 F.3d 917 (8th Cir. 2013). In Kuehl, we found an
intelligible principle in SORNA’s policy statement. Id. at 920. This statement
1
The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
-2-
explains that one of the Act’s purposes is to “establish[] a comprehensive national
system for the registration” of sex offenders “[i]n order to protect the public from sex
offenders and offenders against children . . . .” 42 U.S.C. § 16901. We held that this
“clearly delineat[ed] policy” sufficiently guided the Attorney General in deciding the
narrow retroactivity question. Kuehl, 706 F.3d at 920 (alteration in original) (quoting
Am. Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946)).
Accordingly, we denied the constitutional challenge. Id. In light of our decision in
Kuehl, we reject Terrell’s nondelegation argument. See United States v. Wright, 22
F.3d 787, 788 (8th Cir. 1994) (“[A] panel of this Court is bound by a prior Eighth
Circuit decision unless that case is overruled by the Court sitting en banc.”).
Second, Terrell argues that SORNA’s criminal offense and registration
provisions violate the commerce clause. Our precedent likewise forecloses this
argument. In United States v. May, our court explained that SORNA’s criminal
offense provision is proper because Congress has authority to prevent or punish the
use of interstate commerce “as an agency to promote immorality, dishonesty or the
spread of any evil or harm to the people of other states from the state of origin.” 535
F.3d 912, 921-22 (8th Cir. 2008) (quoting Brooks v. United States, 267 U.S. 432, 436
(1925)), abrogated in part on other grounds by Reynolds, 132 S. Ct. 975. This power
extends “even though the threat may come only from intrastate activities.” Id. at 921
(quoting United States v. Lopez, 514 U.S. 549, 558 (1995)). Section 2250 punishes
only those who travel in interstate or foreign commerce and thereafter knowingly fail
to register. Because § 2250(a) has a sufficient nexus to the regulation of interstate
commerce, we rejected the commerce clause challenge to SORNA’s criminal offense
provision. See id. at 922.
Our court also rejected a commerce clause challenge to § 16913, SORNA’s
registration requirement, in United States v. Howell, 552 F.3d 709, 715 (8th Cir.
2009). In Howell, we explained that § 16913 is constitutionally authorized “under the
broad authority granted to Congress through both the commerce clause and the
-3-
enabling necessary and proper clause.” Id. at 715. Congress enacted SORNA to
further the legitimate end of tracking the interstate movement of sex offenders. Id.
at 717. And SORNA’s registration requirements are a reasonable means to achieve
this goal. Id. We thus found no constitutional problem with the Act’s incidental
regulation of some wholly intrastate activity. Id.; see Gonzales v. Raich, 545 U.S. 1,
35 (2005) (Scalia, J., concurring) (“Where necessary to make a regulation of interstate
commerce effective, Congress may regulate even those intrastate activities that do not
themselves substantially affect interstate commerce.”). Accordingly, we upheld
SORNA’s registration provision.
In his appeal, Terrell suggests that our court should revisit our commerce
clause analysis in light of the Supreme Court’s reasoning in National Federation of
Independent Business v. Sebelius, 575 U.S. ---, 132 S. Ct. 2566, 2587-91 (2012).
However, our court already has determined that nothing in Sebelius undermines our
conclusions in Howell and May. United States v. Anderson, 771 F.3d 1064, 1070-71
(8th Cir. 2014), cert. denied, 575 U.S. ---, 135 S. Ct. 1575 (2015). Accordingly, we
reject Terrell’s commerce clause arguments.
For the foregoing reasons, we affirm the district court’s denial of the motion
to dismiss the indictment.
______________________________
-4-