United States v. Jerry Zuniga ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3156
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jerry Lee Zuniga, *
* [PUBLISHED]
Appellant. *
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Submitted: May 11, 2009
Filed: September 1, 2009
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Before RILEY, SMITH, and COLLOTON, Circuit Judges.
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PER CURIAM.
Jerry Lee Zuniga filed a motion to suppress and a motion to dismiss his
indictment charging him with failure to register as a sex offender after traveling in
interstate commerce, in violation of 18 U.S.C. § 2250(a). Following a hearing, the
magistrate judge1 recommended that Zuniga's motions be denied. The district court2
adopted the magistrate judge's Report and Recommendation in its entirety. Zuniga
1
The Honorable David L. Piester, United States Magistrate Judge for the
District of Nebraska.
2
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
then entered into a conditional plea agreement with the government in which he
reserved his right to appeal from the denial of his motion to dismiss. The district court
sentenced Zuniga to 15 months' imprisonment, followed by five years of supervised
release. Zuniga now brings this appeal challenging the constitutionality of the federal
Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.
§§ 16901–16991, and its corresponding criminal offense statute, 18 U.S.C. § 2250.
We affirm.
I. Background
In 1998, Zuniga pleaded guilty to unlawful sexual activity with a minor and
attempted forcible sex abuse, both third degree felonies under Utah law. In December
2005, Zuniga registered as a sex offender pursuant to Utah's sex offender registration
law. He was also advised of his continuing obligation to register annually and within
five days of every change of residence. Authorities from the Utah Sex Offender
Registration Program sent notice to Zuniga on July 11, 2006, reminding him that his
registration was due by July 31, 2006.
Zuniga stipulated that on or about February 6, 2007, he traveled by bus from
Utah to Nebraska. He resided in Nebraska until November 2007, when federal
authorities arrested him pursuant to a warrant. A federal grand jury indicted Zuniga
for violating SORNA by traveling in interstate commerce and knowingly failing to
register as a sex offender in Nebraska.
Zuniga moved to dismiss the indictment on various constitutional grounds. The
magistrate judge recommended that the district court deny his motion and the district
court adopted the magistrate judge's Report and Recommendation. Zuniga then
entered into a conditional plea agreement with the government in which he reserved
his right to appeal from the denial of his motion to dismiss. The district court
sentenced him to 15 months' imprisonment, followed by five years of supervised
release. Zuniga appeals, challenging the constitutionality of SORNA.
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II. Discussion
Zuniga first argues that SORNA did not apply to him at the time that he traveled
in interstate commerce. Second, he argues that SORNA violates the Ex Post Facto
Clause, the Commerce Clause, and the non-delegation doctrine. Each of these
arguments, including the applicability of SORNA, were disposed of by this court in
United States v. May, 535 F.3d 912 (8th Cir. 2008). We have previously held that
"[o]ne panel of this Court is not at liberty to disregard a precedent handed down by
another panel." Drake v. Scott, 812 F.2d 395, 400 (8th Cir. 1987). Only the court en
banc may overrule circuit precedent, subject to a limited exception in the case of an
intervening Supreme Court decision that is inconsistent with circuit precedent. Young
v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). Mindful of this precedent, Zuniga
candidly admits that he is advancing this appeal solely to preserve the issues for en
banc or Supreme Court review. We will address each of his issues to ensure that they
were previously disposed of in their entirety by this court in May.
Finally, Zuniga argues that SORNA impermissibly encroaches upon state power
in violation of the Tenth Amendment. As all of his arguments raise constitutional
issues or are federal issues requiring statutory interpretation, we will apply a de novo
standard of review. May, 535 F.3d at 915.
A. Applicability of SORNA
Zuniga argues that SORNA is inapplicable to him because his travel in
interstate commerce occurred before the Attorney General issued an interim ruling
designating the applicability of SORNA to offenders convicted before SORNA's date
of the enactment. But May has already expressly foreclosed this argument. Id. at
915–19.
SORNA provides, in pertinent part:
(a) In general.
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A sex offender shall 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. For initial registration
purposes only, a sex offender shall also register in the jurisdiction in
which convicted if such jurisdiction is different from the jurisdiction of
residence.
(b) Initial registration.
The sex offender shall initially register—
(1) before completing a sentence of imprisonment with respect to the
offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense,
if the sex offender is not sentenced to a term of imprisonment.
(c) Keeping the registration current. A sex offender shall, not later than
3 business days after each change of name, residence, employment, or
student status, appear in person in at least 1 jurisdiction involved
pursuant to subsection (a) and inform that jurisdiction of all changes in
the information required for that offender in the sex offender registry.
That jurisdiction shall immediately provide that information to all other
jurisdictions in which the offender is required to register.
(d) Initial registration of sex offenders unable to comply with
subsection (b).
The Attorney General shall have the authority to specify the applicability
of the requirements of this title to sex offenders convicted before the
enactment of this Act [enacted July 27, 2006] or its implementation in a
particular jurisdiction, and to prescribe rules for the registration of any
such sex offenders and for other categories of sex offenders who are
unable to comply with subsection (b).
42 U.S.C. § 16913(a)–(d).
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On February 28, 2007, the Attorney General issued an interim rule, effective
February 28, 2007, which states:
The requirements of [SORNA] apply to all sex offenders, including sex
offenders convicted of the offense for which registration is required prior
to enactment of that Act.
28 C.F.R. § 72.3.
In May, the defendant traveled in interstate commerce after enactment of
SORNA but before the Attorney General made the statute retroactive. 535 F.3d at 915.
The defendant argued that SORNA did not apply to him because his interstate travel
occurred prior to the Attorney General's interim ruling. Id. We disagreed holding that
SORNA's registration requirements applied to the defendant at the time that SORNA
was enacted in 2006. Id. at 916. We concluded that the Attorney General's interim rule
did not apply to the defendant because he was required to keep his registration current
prior to the enactment of SORNA. Id. at 919. Therefore, the interim rule did not affect
the defendant. Id.
Zuniga, who traveled in interstate commerce after SORNA's enactment but
before the Attorney General issued its interim rule, is in the same position as was the
defendant in May. Therefore, like the defendant in May, Zuniga was already obligated
to register under SORNA, and the interim rule did not affect this obligation. Because
we may not overrule prior precedent, Drake, 812 F.2d at 400, we hold that SORNA
applied to Zuniga at the time he traveled in interstate commerce.
Zuniga's reliance on the Tenth Circuit decision in United States v. Husted, 545
F.3d 1240 (10th Cir. 2008), in support of his position is misplaced. In Husted, the
Tenth Circuit held SORNA to be inapplicable where the defendant traveled in
interstate commerce before the Attorney General issued its interim rule and before the
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enactment of SORNA. Id. at 1241. Because Zuniga traveled after the enactment of
SORNA, Husted is inapposite. The more analogous Tenth Circuit case is United
States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008). In Lawrance, the defendant
traveled in interstate commerce without registering after enactment of SORNA but
before the Attorney General's interim rule. Id. at 1336. The Tenth Circuit held that
SORNA applied to the defendant. Id. Therefore, we conclude that SORNA applies.
B. Ex Post Facto Clause
Zuniga argues that because SORNA increases the punishment for failure to
register, it violates the Ex Post Facto Clause. He also argues that because SORNA
punishes him for conduct that occurred before SORNA was applicable to him, it
violates the Ex Post Facto Clause. We previously rejected these arguments in May,
535 F.3d at 919–20.
The United States Constitution states that "[n]o Bill of Attainder or Ex Post
Facto law shall be passed." U.S. Const. art. I, § 9. In May, we first had to determine
whether "Congress intended SORNA to impose punishment for a pre-existing crime"
or whether Congress intended "'to enact a regulatory scheme that is civil and
nonpunitive.'" May, 535 F.3d at 919 (quoting Smith v. Doe, 538 U.S. 84, 92 (2003)).
We noted that Congress stated that its purpose in creating SORNA was "'to protect the
public from sex offenders and offenders against children, and in response to the
vicious attacks by violent predators.'" Id. at 920 (quoting 42 U.S.C. § 16901).
Therefore, Congress's intent was to "create a public safety measure." Id. at 920.
We must further examine the statute to determine "if the statutory scheme is so
punitive that it negates Congress's intention to deem the act civil." Id. "[O]nly the
clearest proof will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty." Id. (internal citations omitted).
"The only punishment that can arise under SORNA comes from a violation of § 2250,
which punishes convicted sex offenders who travel in interstate commerce after the
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enactment of SORNA and who fail to register as required by SORNA." Id. Of course,
Congress clearly intended SORNA to apply to defendants convicted before SORNA's
passage.3 Congress's intent was to create a "comprehensive national system" for
registering sex offenders. Id. (quoting 42 U.S.C. § 16901). In May, we held that the
statute does not punish an individual for previously being convicted of a sex offense,
but it instead merely "punishes an individual for traveling in interstate commerce and
failing to register." May, 535 F.3d at 920. Therefore, the statute does not violate the
Ex Post Facto Clause.4 See id. Moreover, as we have already determined, Zuniga is
subject to SORNA. See Part II.A.
C. Commerce Clause
Zuniga also argues that SORNA violates the Commerce Clause because it does
not establish a nexus to interstate commerce. According to Zuniga, a jurisdictional
element is not sufficient to provide the link between the statute and interstate
commerce. We previously addressed this issue in May. 535 F.3d at 921–22.
Congress's authority to regulate commerce among the states includes the power
to regulate: (1) "the use of the channels of interstate commerce"; (2) "the
instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities"; and (3) "those
activities having a substantial relation to interstate commerce." United States v. Lopez,
514 U.S. 549, 558–59 (1995).
3
Section 16911(1) of 42 U.S.C. defines sex offender as "an individual who was
convicted of a sex offense."
4
As in May, Zuniga argues that the ten-year punishment imposed by SORNA
violates the Ex Post Facto Clause because it is greater than any federal punishment he
could have received. We addressed and disposed of this very issue in May. May
referenced the Lyncher Act, 42 U.S.C. § 14072(I), a federal statute that subjected
failure-to-register violations with a maximum ten years' imprisonment. May, 535 F.3d
at 920 n.4 (citing § 14072(I)). Therefore, Zuniga's argument necessarily fails.
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In May, we noted that SORNA requires the government to prove that the
defendant traveled in interstate commerce and thereafter failed to register under
SORNA. 535 F.3d at 921 (citing 18 U.S.C. § 2250(a)(2)(B)). We held that SORNA
"derives its authority from each prong of Lopez—and most specifically, the ability to
regulate 'persons or things in interstate commerce' and 'the use of the channels of
interstate commerce.'" Id. Therefore, SORNA provides a "sufficient nexus to interstate
commerce." Id. Zuniga's argument fails.
D. Non-Delegation Doctrine
Zuniga argues that SORNA violates the non-delegation doctrine because
Congress improperly delegated authority to legislate the scope of SORNA to the
Attorney General. But he recognizes that a litigant in his position lacks standing to
raise this challenge. May, 535 F.3d at 921.
Section 16913(b) of 42 U.S.C. requires sex offenders to initially register before
completing imprisonment. Congress enacted § 16913(d) to grant the Attorney General
the authority to enforce the statute against sex offenders convicted before enactment
of the Act or to "sex offenders unable to comply with subsection b." 42 U.S.C.
§ 16913(d). We held in May that "[b]ecause [the defendant] was not a person unable
to register before SORNA's enactment and § 16913(d)'s authorizing the Attorney
General to promulgate rules regarding its applicability does not even apply to him,
[the defendant] lacks standing to raise this challenge." 535 F.3d at 921. Section
16913(b) applied because of the age of the May defendant's conviction. Id. at 918–19.
Because Zuniga, like the defendant in May, was able to register pursuant to SORNA
but failed to do so, § 16913(d) does not apply to him. Therefore, Zuniga lacks
standing to bring a challenge to that section. See id. at 921.5
5
Zuniga also contends that, because the Attorney General bypassed the notice
and comment requirements of the APA, § 16913(d) is unenforceable. The APA
requires a federal agency to provide at least 30 days' notice of a proposed rule in the
Federal Register to give interested persons an opportunity to comment. 5 U.S.C. § 553
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E. Tenth Amendment
Finally, Zuniga argues that SORNA is unconstitutional because it compels local
law enforcement to accept registrations from federally-mandated sex offender
programs in violation of the Tenth Amendment, which provides that "[t]he powers not
delegated to the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." U.S. Const. amend X. We
need not address the merits of Zuniga's Tenth Amendment argument because he does
not have standing to raise this issue. United States v. Hacker, 565 F.3d 522, 525–26
(8th Cir. 2009).
In Hacker, the defendant also argued that SORNA violated the Tenth
Amendment by encroaching on state power. Id. at 525. Although the parties in Hacker
did not raise standing as an issue, we addressed it sua sponte. Id. at 525–26 & n.3. We
joined the majority of circuits and held that "a private party does not have standing to
assert that the federal government is encroaching on state sovereignty in violation of
the Tenth Amendment absent the involvement of a state or its instrumentalities." Id.
at 526 (citing Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009);
Brooklyn Legal Servs. Corp. B v. Legal Servs. Corp., 462 F.3d 219, 234–36 (2d Cir.
2006); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005); United States v.
Parker, 362 F.3d 1279, 1284 (10th Cir. 2004)).
Here, just as in Hacker, Zuniga is challenging SORNA in his individual
capacity, and he does not assert the "involvement of a state or its instrumentalities."
(d). This requirement may only be bypassed upon a showing of "good cause." United
States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir. 1977). The Attorney General
averred that the notice and comment period should be avoided because any delay in
implementing the statute would "impair immediate efforts to protect the public from
sex offenders." 72 Fed. Reg. 8894, 8896. Zuniga argues that this reasoning does not
amount to "good cause." But, as we held above, Zuniga lacks standing to bring a
challenge to § 16913(d). Therefore, we need not address this argument.
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Id. at 526. Nor has Zuniga argued that his interests are aligned with any state's interest.
See id. at 527 n.6 (leaving open the possibility of a Tenth Amendment challenge
where the private party asserts that his interests are aligned with a state's interest).
Because Zuniga is a private party, he lacks standing to raise a Tenth Amendment
challenge to SORNA.
III. Conclusion
The judgment of the district court is affirmed.
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