United States v. Levi Smith , 504 F. App'x 519 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 10-3579
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Levi Alan Smith
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: July 11, 2012
Filed: December 21, 2012
[Unpublished]
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Before COLLOTON, CLEVENGER,1 and BENTON, Circuit Judges.
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PER CURIAM.
This case is on remand from the Supreme Court. On September 16, 2011, this
court affirmed Levi Alan Smith’s conviction under 18 U.S.C. § 2250 for failing to
1
The Honorable Raymond C. Clevenger, III, United States Circuit Judge for
the Federal Circuit, sitting by designation.
register as a sex offender, as required by the Sex Offender Registration and
Notification Act (“SORNA”). United States v. Levi Smith, 655 F.3d 839 (8th Cir.
2011), vacated, 132 S. Ct. 2712 (2012). This court also vacated one special condition
of supervised release and remanded for resentencing. Id. at 846.
On February 8, 2012, Smith petitioned for a writ of certiorari. The Supreme
Court granted the petition, vacated this court’s judgment, and remanded the case for
further consideration in light of Reynolds v. United States, 132 S. Ct. 975 (2012).
Reynolds held that the SORNA's registration requirements “do not apply to pre-Act
offenders until the Attorney General so specifies.” Id. at 984. Reynolds abrogated
United States v. May, 535 F.3d 912 (8th Cir. 2008), which held that the Act's
registration requirements apply from the date of its enactment and prior to any
regulations issued by the Attorney General, at least with respect to pre-Act offenders
who had already registered under state law. United States v. Curry, 477 F. App’x
414, 415 (8th Cir. 2012) (per curiam).
Smith was convicted of a sexual assault in 1998, before SORNA went into
effect. He was what Reynolds termed a “pre-Act offender,” and the registration
requirements applied to him only as the Attorney General specified by regulation.
One of Smith’s challenges to his conviction involves the validity of the Attorney
General’s regulations. In February 2007, under 42 U.S.C. §§ 16912(b) and 16913,
the Attorney General promulgated an Interim Rule specifying that “[t]he 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.” 72 Fed.
Reg. 8897 (codified at 28 C.F.R. § 72.3). The Attorney General subsequently
promulgated further rules, regulations, and specifications. See 73 Fed. Reg. 38030
(2008); 75 Fed. Reg. 81849 (2010); 76 Fed. Reg. 1630 (2011).
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This court’s previous opinion in this case rejected Smith’s argument that
SORNA violates the non-delegation doctrine, finding that Smith had standing only
to challenge the statute on other grounds. Smith, 655 F.3d at 848, citing Bond v.
United States, 131 S. Ct. 2355, 2366-67 (2011). Under Reynolds, Smith is entitled
to have his non-delegation challenge addressed on the merits. See, e.g., United States
v. Fernandez, 671 F.3d 697, 698 (8th Cir. 2012) (per curiam). Reynolds does not
affect Smith’s Commerce Clause, Due Process, and Tenth Amendment claims. See
Id. at 698-99. As to those claims, our previous opinion is reinstated. We also
reinstate our previous opinion affirming special conditions 3, 5, 7, 9, and 10, but
vacating special condition 6, for the reasons stated in that opinion. Smith, 655 F.3d
at 843-48.
* * * * * * *
As in recent cases, see, e.g., United States v. Springston, 480 F. App’x 860 (8th
Cir. 2012), the judgment of the district court is vacated and the case is remanded for
other proceedings not inconsistent with this opinion.
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