United States v. Paul Shenandoah

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 09-1205
___________
UNITED STATES OF AMERICA
v.
PAUL SHENANDOAH,
Appellant
_____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 1-07-cr-00500-001)
District Judge: The Honorable Christopher C. Conner
___________
Submitted Under Third Circuit LAR 34.1(a)
October 2, 2009
BEFORE: McKEE, CHAGARES,
and NYGAARD, Circuit Judges.
(Filed : February 9, 2010)
___________
Frederick W. Ulrich, Esq.
Thomas A. Thornton, Esq.
Office of the Federal Public Defender
100 Chestnut Street, Suite 306
Harrisburg, PA 17101
Counsel for Appellant
Martin C. Carlson, Esq.
Theodore B. Smith, III, Esq.
Office of the United States Attorney
228 Walnut Street, PO Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108
Counsel for Appellee
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Paul Shenandoah was indicted in December of 2007 for
failing to register as a sex offender in violation of the Sex
Offender Registration and Notification Act (SORNA), 18
U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was
also charged with two counts of knowingly and willfully
providing false information to law enforcement officials
-2-
regarding his federal sex offender registration offenses, in
violation of 18 U.S.C. §§ 1001 and 1512(b)(3).
He pleaded not guilty and asked the District Court to
dismiss the indictment, arguing that SORNA violated the Non-
Delegation Doctrine, the Administrative Procedure Act, the Ex
Post Facto Clause, the Due Process Clause, the Commerce
Clause, the Tenth Amendment and his right to travel. The
District Court denied the motion. United States v. Shenandoah,
572 F.Supp.2d 566 (M.D. Pa. 2008). Shenandoah then pleaded
guilty to failing to register as a sex offender under SORNA, but
reserved his right to appeal the order refusing to dismiss the
indictment. See F ED.R.C RIM.P. 11(a)(2); United States v.
Zudick, 523 F.2d 848, 852 (3d Cir. 1975).
I.
The factual and procedural background of this appeal is
straightforward and undisputed. An abbreviated recitation will
suffice. Shenandoah, a New York resident, was convicted of
third degree rape in February of 1996.1 He executed a New
York state sexual offender registration form when he was
paroled in February of 2002. This form requires, among other
things, that he apprise New York of any changes in his home
address and place of employment. Some time in August of
1.
Under New York state law, third degree rape is,
essentially, a form of statutory rape which involves, inter alia,
sexual intercourse with another person less than seventeen years
of age. See New York Penal Law § 130.25 (McKinney 2001).
-3-
2007, Shenandoah’s employment as an iron worker required that
he travel to, and relocate in, York County, Pennsylvania. He
failed, however, either to register as a sex offender in
Pennsylvania, or to modify his New York registration to reflect
his change of residence and employment, leading to his
indictment.
II.
The Adam Walsh Child Protection and Safety Act of
2006, Pub.L. No. 109-248, 120 Stat. 587, was enacted to close
the loopholes in previous sex offender registration legislation
and to standardize registration across the states.2 See United
States v. Ensminger, 567 F.3d 587, 588 (9th Cir. 2009). The
Adam Walsh Act is divided into seven titles, the first of which
contains SORNA.
SORNA creates a national sex offender registry with the
goal of eliminating inconsistencies among state laws. Id.SORNA applies to a broadly-defined class of “sex offenders,”
2.
In 1994, Congress enacted the Jacob Wetterling
Crimes Against Children and Sexually Violent Offender
Registration Act, as amended, 42 U.S.C. § 14071, which
conditions federal law enforcement funding on states' adoption
of mandatory sex offender registration laws. Smith v. Doe, 538
U.S. 84, 89-90 (2003). By 1996, every state and the District of
Columbia had enacted some version of the Act, which is
commonly termed a “Megan's Law.” Id.-4-
which includes persons convicted of child pornography offenses
as well as almost all offenses involving illegal sexual conduct.
See 42 U.S.C. § 16911. SORNA sets forth requirements for
offenders who must initially register, and for those offenders
who are already registered, but must update their registration:
(a) In general
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
-5-
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) of this section 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) of this section
The Attorney General shall have the authority to
specify the applicability of the requirements of
this subchapter to sex offenders convicted before
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) of this section.
(e) State penalty for failure to comply
Each jurisdiction, other than a Federally
recognized Indian tribe, shall provide a criminal
penalty that includes a maximum term of
imprisonment that is greater than 1 year for the
failure of a sex offender to comply with the
requirements of this subchapter.
-6-
42 U.S.C. § 16913. SORNA provides for criminal penalties for
failing to comply with its registration requirements. Section
2250(a) states as follows:
Whoever-
(1) is required to register under the Sex Offender
Registration and Notification Act;
(2) (A) is a sex offender as defined for the
purposes of the Sex Offender Registration and
Notification Act by reason of a conviction under
Federal law (including the Uniform Code of
Military Justice), the law of the District of
Columbia, Indian tribal law, or the law of any
territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or
enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a
registration as required by the Sex Offender
Registration and Notification Act;
shall be fined under this title or imprisoned not more than
10 years, or both.
18 U.S.C. § 2250(a). The Attorney General is also directed to
“maintain a national database . . . for each offender.” 42 U.S.C.
§ 16919(a).
SORNA requires states to implement the statute or lose
“10 percent of the funds that would otherwise be allocated” to
the state under the Omnibus Crime Control and Safe Streets Act
-7-
of 1968 for a given year. 42 U.S.C. § 16925(a). States are
required to “maintain a jurisdiction-wide sex offender registry
conforming to the requirements of [SORNA],” 42 U.S.C. §
16912(a); “provide a criminal penalty” for a sex offender’s
failure to register, 42 U.S.C. § 16913(e); and “immediately . . .
provide the information into the registry” about an offender who
has registered or updated a registration to other entities,
including the Attorney General, local law enforcement agencies
and certain social service and volunteer organizations that work
with children. 42 U.S.C. § 16921(b).
Responding to the directive contained in § 16913(d), the
Attorney General initially announced an interim rule that
became effective on February 28, 2007. See 72 F ED. R EG. 8894
(Feb. 28, 2007). Pursuant to this rule, the Attorney General
declared that SORNA's requirements applied “to all sex
offenders, including sex offenders convicted of the offense for
which registration is required prior to the enactment of
[SORNA].” 28 C.F.R. § 72.3 (2007). The Attorney General then
followed up with more detailed proposed guidelines that were
subject to notice and comment. See 72 F ED. R EG. 30210 (May
30, 2007). The Attorney General's final regulations on the
interpretation and implementation of SORNA became effective
on July 2, 2008, one week after Shenandoah filed his Motion to
Dismiss. See 73 F ED. R EG. 38030 (July 2, 2008).
III.
Shenandoah raises numerous challenges to SORNA. He
asserts that SORNA did not apply to him since neither New
York nor Pennsylvania have implemented the law. Further, he
argues that his prosecution under SORNA violates due process
because it was impossible for him to comply with the statute’s
dictates and because he did not receive any notice of his duty to
register. Shenandoah also asserts that SORNA violates the
-8-
Commerce Clause, the Tenth Amendment and his constitutional
right to travel. Finally, he maintains that SORNA violates the
Nondelegation Doctrine and the Administrative Procedure Act.
There have been hundreds of similar challenges to the statute
filed in federal courts around the nation, each raising
constitutional challenges to SORNA. To date, the Courts of
Appeal for the Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and
Eleventh Circuits have all rejected various constitutional
challenges to SORNA. See United States v. George, 579 F.3d
962 (9th Cir. 2009); United States v. Whaley, 577 F.3d 254 (5th
Cir. 2009); United States v. Gould, 568 F.3d 459 (4th Cir.
2009); United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009);
United States v. Dixon, 551 F.3d 578 (7th Cir. 2008); United
States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008); United
States v. May, 535 F.3d 912 (8th Cir. 2008).
Traditionally, when reviewing a motion to dismiss an
indictment, our standard of review is mixed, employing plenary
or de novo review over a district court’s legal conclusions, and
reviewing any challenges to a district court’s factual findings for
clear error.” United States v. Nolan-Cooper, 155 F.3d 221, 229
(3d Cir. 1998); see also United States v. Barbosa, 271 F.3d 438,
469 (3d Cir. 2001). However, Shenandoah does not challenge
the District Court’s factual determinations. We are, therefore,
reviewing de novo the District Court’s legal conclusions.3 We
will affirm.
A. Applicability of SORNA
As a threshold argument, Shendandoah contends that
SORNA does not apply to him because neither Pennsylvania
3.
The District Court had jurisdiction under 18
U.S.C. § 3231. Our jurisdiction is found in 28 U.S.C. § 1291.
-9-
nor New York have implemented the Act. Because Shenandoah
was already a registered sex offender when SORNA was
enacted, SORNA required only that he keep his registration
current on and after July 27, 2006. The allegations in the
indictment, to which Shenandoah provisionally pleaded guilty,
clearly pertain to his failure to keep his registration current and,
as such, are covered by 42 U.S.C. § 16913(a) & (c). See, e. g.,
United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008).
Under these subsections of the statute, Shenandoah was required
to keep his registration current in each jurisdiction in which he
resided and, not later than three business days after each change
of residence, to appear in person in at least one jurisdiction and
inform that jurisdiction of all changes in the information
required in the sex offender registry. See 42 U.S.C. § 16913(a)
& (c). SORNA defines a “sex offender registry” as “a registry
of sex offenders, and a notification program maintained by a
jurisdiction.” 42 U.S.C. § 16911(9). A registry that is operated
by a state — like those operated by New York and Pennsylvania
— and maintained after the effective date of SORNA satisfies
this definition. Inasmuch as New York and Pennsylvania had
sex offender registries in place after SORNA’s enactment,
SORNA demanded that Shenandoah update his registration by
registering in Pennsylvania and informing New York of his
change of address and employment. Nothing in this record
demonstrates that this was impossible for Shenandoah to do.
Furthermore, the directive found in 42 U.S.C. § 16913(a)
applies to sex offenders — not to states. When combined with
SORNA’s enforcement provision, 18 U.S.C. § 2250(a), an
independent and federally enforceable duty is placed on sex
offenders to register. New York and Pennsylvania may never
implement SORNA, choosing, for whatever reason, to forego a
portion of their federal funding. This failure to implement a
federal law, however, does not give sex offenders a reason to
disregard their federal obligation to update their state
-10-
registrations. When a sex offender travels in interstate
commerce and disobeys the federal command to keep his or her
registration current, as required by SORNA, he or she is subject
to prosecution. 18 U.S.C. § 2250(a); see also May, 535 F.3d at
921.
Shenandoah’s reliance on the Attorney General’s
SORNA Guidelines, 72 F ED.R EG. 30210 (May 30, 2007), is
misplaced. In May 2007, the Attorney General issued proposed
Sex Offender Sentencing, Monitoring, Apprehending,
Registering, and Tracking (“SMART”) Guidelines ostensibly to
provide assistance to those states implementing SORNA. 72
F ED.R EG. at 30210. Shenandoah maintains that one of these
SMART guidelines plainly instructs that convicted sex offenders
have a duty to register only after a jurisdiction implements
SORNA:
With respect to sex offenders with pre-SORNA
[enactment] or pre-SORNA implementation
convictions who remain in the prisoner,
supervision, or registered sex offender
populations at the time of implementation . . .
jurisdictions should endeavor to register them in
conformity with SORNA as quickly as possible.
72 Fed.Reg. 30210, 30228 (May 30, 2007). Shenandoah argues
that this language shows that SORNA was not intended to be
enforced until after the states had implemented the law's
requirements. We disagree. The plain language of SORNA
requires an offender to update their state registration,
independent of any construction of the statute by the Attorney
General. Shenandoah’s obligation to register was triggered by
the enactment of the statute; it is not contingent upon a green
light from the Attorney General. Moreover, in 72 F ED. R EG.
30210, also issued in May 2007, the Attorney General explicitly
-11-
stated that the applicability of SORNA is not limited to sex
offenders who committed the predicate sex crime after a
jurisdiction's implementation of a conforming registration
program; rather, SORNA’s requirements are applicable to all
sex offenders. The regulation states that “registered sex
offender populations” should be registered under SORNA’s
requirements. This suggests that, even before full
implementation of SORNA, the obligation to register with the
state applies. Instead of indicating that no obligation to register
applies until SORNA is implemented, the regulation conveys
that sex offenders should be registered at all times. Shenandoah
was a “sex offender” under SORNA and as of July 27, 2006, he
was required to — and capable of — registering and keeping his
registration current in the jurisdiction in which he resided. New
York and Pennsylvania both had registration processes
Shenandoah could have employed in order to comply with §
16913(a) prior to either state's implementation of SORNA.
Nothing in SORNA or its guidelines indicates that a
jurisdiction’s failure to comply with SORNA relieves offenders
of the obligation to register in that jurisdiction. We reject,
therefore, Shenandoah’s arguments that he was unable to
register under SORNA or that SORNA did not apply to him
because neither New York nor Pennsylvania had implemented
the law.
B. Ex Post Facto Clause
The Ex Post Facto Clause of the Constitution forbids any
law that “changes the punishment, and inflicts a greater
punishment” for pre-existing conduct. Hameen v. State of
Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Calder v.
Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)). Shenandoah
argues that subjecting him to punishment for failing to register
under SORNA — a law not yet enacted when he was discharged
from prison in New York — would violate the Ex Post Facto
-12-
Clause of the Constitution. We need not dwell long on this
issue. Specifically, SORNA’s criminal provision is violated
when an offender who was (1) required to register in some
jurisdiction; (2) knowingly failed to register or update a prior
registration; and (3) traveled in interstate commerce. 18 U.S.C.
§ 2250(a). SORNA is not being applied retroactively. Instead,
SORNA’s focus is prospective. It creates a new punishment for
a new offense, this new offense being traveling in interstate
commerce and failing to register as a sex offender under
SORNA after July 27, 2006. See United States v. Zuniga, 579
F.3d 845, 849 (8th Cir. 2009).
Shenandoah was required by law to update his
registration as a sex offender. He failed to do so when he
traveled from New York to Pennsylvania. His travel took place
in August of 2007, after the enactment of the statute. Neither
SORNA nor Shenandoah’s conduct implicate the Ex Post Facto
clause because neither contemplate retroactive events. Congress
created a new law. Shenandoah committed a new crime.
Furthermore, the Ex Post Facto Clause would protect
Shenandoah only if all the acts required for criminal punishment
occurred before 18 U.S.C. § 2250 took effect. If any act took
place later, the clause does not apply. United States v. Dixon,
551 F.3d 578, 584-85 (7 th Cir. 2008). As just noted, Shenandoah
was and is obliged to keep a current registration as a sex
offender under SORNA and he had a reasonable opportunity to
do so after enactment of the statute. Indeed, when he left prison,
Shenandoah was properly registered under New York law, as
required by SORNA. More than five years later (and more than
a year after the enactment of SORNA), Shenandoah traveled
interstate and then failed to update his registration. The Ex Post
-13-
Facto Clause has no application to his situation.4
C. Notice Arguments
Shenandoah next claims that he had no duty to register
under SORNA because the Government failed to notify him of
these new requirements. He argues that without this
notification, he could not “knowingly fail to register.” See 18
U.S.C. § 2250(a)(3). A provision of SORNA, 42 U.S.C. §
16917(a), requires that offenders being discharged from prison,
be advised of their duty to register. Of course, because
Shenandoah was released from prison before SORNA was
enacted, it follows that he could not have been informed of the
federal registration requirement upon release from custody as
described in § 16917(a).
Shenandoah argues therefore, that because 18 U.S.C. §
2250(a) requires a knowing violation as an element of the
offense, the Government did not allege a prima facie violation
of § 2250(a). We disagree.
4.
Shenandoah also raises a Due Process Clause
argument, which we find baseless. He argues that it violates due
process to criminalize his failure to do something that is
impossible. He maintains it was “impossible” for him to satisfy
SORNA’s requirements because neither Pennsylvania nor New
York had implemented the Act. However, we have previously
determined that it was not impossible for Shenandoah to comply
with SORNA’s requirements. As the District Court correctly
determined here, “A state’s failure to update its registration
system to conform with SORNA does not alter a sex offender’s
independent duty to register all information that is required by
then-existing state law. United States v. Shenandoah, 572
F.Supp.2d 566, 578 (M.D. Pa. 2008).
-14-
Overlooked in this argument is the fact that SORNA’s
criminal provision is not a specific intent law. See United States
v. Gould, 568 F.3d 459, 468 (4 th Cir. 2009). As set out in 18
U.S.C. § 2250(a), “knowingly” modifies “fails to register.” As
the Court of Appeals for the Fourth Circuit held, “[t]here is no
language requiring specific intent or a willful failure to register
such that he must know his failure to register violated federal
law.” Id., citing Bryan v. United States, 524 U.S. 184, 192-93
(1998) (noting that “the term ‘knowingly’ does not necessarily
have any reference to a culpable state of mind or to knowledge
of the law” and that “the term ‘knowingly’ merely requires proof
of knowledge of the facts that constitute the offense”). Receipt
of notice by a sex offender under 42 U.S.C. § 16917 is not an
element of the federal offense with which Shenandoah was
charged.
It is axiomatic that ignorance of the law does not provide
a defense, for it is presumed that every person knows the law.
See Cheek v. United States, 498 U.S. 192, 199 (1991); see also
United States v. Carbo, 572 F.3d 112, 116 (3d Cir. 2009).
Shenandoah argues further that even in the absence of actual
notice of criminal liability, due process requires that a statute not
criminalize “wholly passive conduct.” Relying on the Supreme
Court’s decision in Lambert v. California, 355 U.S. 225, 228
(1957), Shenandoah claims that he is being prosecuted for
wholly passive conduct, namely his failure to register. In
Lambert, when considering a city ordinance that required all
felons to register, the Supreme Court noted that “circumstances
which might move [a felon] to inquire as to the necessity of
registration are completely lacking” with respect to such a law.
Id. at 229.
Unlike an isolated city ordinance that requires all
members of the broad class of all felons to register, SORNA
instead criminalizes the failure to register of a much more
-15-
narrowly targeted class of persons in a context where
sex-offender registration has been the law for years and
Shenandoah knew that. It is undisputed that Shenandoah knew
that he was required to register under New York law, which
mandated that he update his registration if he traveled or moved
out of state and that he register in the new state. The registration
form that Shenandoah signed notified him of his legal
obligations as a sex offender even though he was not, and could
not have been, notified of his duty under federal law. When
SORNA was enacted, every State had registration requirements
for sex offenders. These circumstances do not permit us to
conclude that Shenandoah’s due process rights, based on lack of
notice, were violated. See May, 535 F.3d 912, 921 (8th Cir.
2008) (holding that notice of the duty to register under state law
provides notice of the duty to register under SORNA); United
States v. Hinckley, 550 F.3d 926, 938-39 (10th Cir. 2008)
(same).
We can find no reason to hold that SORNA’s notice
provision was intended to dilute the effect of state notice
requirements. We conclude that Shenandoah had notice of his
registration obligations based on the information provided him
in the New York registration forms, even if that notice did not
explain that a consequence of failing to register would be a
violation of federal law and state law.
IV.
Shenandoah also brings several other broader
Constitutional challenges to SORNA. He argues that the statute
violates the Commerce Clause and the Tenth Amendment of the
Constitution. He also argues that SORNA violates his
constitutional right to interstate travel.
A. Commerce Clause
-16-
Shenandoah contends that Congress exceeded its
commerce clause authority when it passed SORNA because the
statute, he argues, contains neither a sufficient nexus to
commerce, nor a substantial effect on interstate commerce.
Although we have not had occasion to address this issue, we
now join the other courts of appeals that have done so, and hold
SORNA to be a proper regulation under Congress’ commerce
power. See, e.g., May, 535 F.3d at 921-22; United States v.
Howell, 552 F.3d 709, 713 (8 th Cir. 2009); Hinckley, 550 F.3d
at 939-40; United States v. Lawrance, 548 F.3d 1329, 1336-37
(10 th Cir. 2008); United States v. Ambert, 561 F.3d 1202, 1210-
11 (11 th Cir. 2009).
Congress’ commerce clause power is derived from
Article I, section 8 of the United States Constitution, which
provides that “[t]he Congress shall have Power ... [t]o regulate
Commerce with foreign Nations, and among the several States,
and with the Indian Tribes.” U.S. Const. art. I, § 8, cls. 1 & 3.
Congress may regulate intrastate activity so long as the means
employed by Congress are “reasonably adapted” to the
attainment of a legitimate end under the commerce power. See
United States v. Darby, 312 U.S. 100, 121 (1941).
The Supreme Court in United States v. Lopez, 514 U.S.
549 (1995), synthesized and articulated the boundaries of this
power. In Lopez, the Court addressed the constitutionality of the
Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which
prohibited possession of a firearm within a thousand feet of a
school. The Supreme Court struck down the statute, identifying
three categories of activity that Congress may regulate under its
commerce power: (1) “Congress may regulate the use of the
channels of interstate commerce;” (2) “Congress is empowered
to regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities;” and
-17-
(3) “Congress’ commerce authority includes the power to
regulate those activities having a substantial relation to interstate
commerce, i.e., those activities that substantially affect interstate
commerce.” Id. at 558-59 (internal citations omitted).
SORNA requires the government to prove that
Shenandoah traveled in interstate or foreign commerce, and
thereafter failed to register as required by SORNA. See 18
U.S.C. § 2250(a)(2)(B); May, 535 F.3d at 921. SORNA thus
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.” Shenandoah was undeniably a “person ... in
interstate commerce” in that he traveled and relocated between
New York and Pennsylvania. Shenandoah did so via the “use of
the channels of interstate commerce.” It has been long
established that Congress may forbid or punish 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.” May, 535 F.3d at 922 citing Brooks v.
United States, 267 U.S. 432, 436 (1925); see also Gould, 568
F.3d at 470. Congressional regulation of the channels of
interstate commerce has also been upheld when the punishment
“was intended to prevent the use of interstate commerce to
facilitate ... forms of immorality.” Brooks, 267 U.S. at 437(citation omitted). SORNA contains a sufficient nexus to
interstate commerce.
We conclude that SORNA is a proper regulation of
commerce under the Lopez categories because it not only
regulates persons or things in interstate commerce, but also
regulates the use of channels of interstate commerce and the
-18-
instrumentalities of interstate commerce.5
B. Tenth Amendment
Shenandoah argues that SORNA is unconstitutional
because it compels New York 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 tarry long on this argument, because Shenandoah lacks
standing to raise this issue. See United States v. Hacker, 565
F.3d 522, 525-26 (8th Cir. 2009). 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.; see also Brooklyn Legal Servs. Corp. 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, Shenandoah is challenging
SORNA in his individual capacity, and he does not assert the
5.
In so holding, we join those courts that have found
SORNA to derive its authority under the various Lopez
categories. See, e.g., Gould, 568 F.3d 459 (channels and
instrumentalities); Ambert, 561 F.3d 1202 (channels and
instrumentalities); United States v. Hinckley, 550 F.3d 926 (10th
Cir.2008) (channels and instrumentalities); May, 535 F.3d 912(8th Cir.2008) (channels and instrumentalities); United States v.
Dixon, 551 F.3d 578 (7th Cir.2008) (Commerce Clause
challenge rejected outright); United States v. Lawrance, 548
F.3d 1329 (10th Cir.2008) (channels and instrumentalities).
-19-
“involvement of a state or its instrumentalities.” Hacker, 565
F.3d at 526. Shenandoah has not argued that his interests are
aligned with any state’s interest. Because Shenandoah is a
private party, he lacks standing to raise a Tenth Amendment
challenge to SORNA.
C. Right to Travel
Shenandoah next argues that 18 U.S.C. § 2250(a)
impermissibly infringes upon his constitutional right to travel
because it punishes him for traveling to another state. He
further argues that SORNA subjects sex offenders who travel to
another state to a harsher penalty than sex offenders who remain
in one state. Neither argument is persuasive.
“[T]he ‘constitutional right to travel from one State to
another’ is firmly embedded in our jurisprudence.” Saenz v. Roe,
526 U.S. 489 (1999) (quoting United States v. Guest, 383 U.S.
745, 757 (1966)). There are several constitutional bases for the
right to travel, including general constitutional principles, see,
e.g., United States v. Guest, 383 U.S. 745 (1966); the Privileges
and Immunities Clause of Article IV, § 2 of the Constitution;
Hess v. Pawloski, 274 U.S. 352 (1927); the Privileges or
Immunities Clause of the Fourteenth Amendment, Twining v.
State of N.J., 211 U.S. 78 (1908); and the Due Process Clause of
the Fifth Amendment; State v. Barker, 252 Kan. 949, 850 P.2d
885 (Kan.1993).
In Saenz v. Roe, the Supreme Court struck down a
California law that limited welfare benefits for new residents.
526 U.S. 489 (1999). The Supreme Court held that the
Constitution protects the rights of United States citizens to
choose where they live and not be treated differently than
long-term residents. Id. at 500. This right to travel “protects the
right of a citizen of one State to enter and to leave another State,
-20-
the right to be treated as a welcome visitor rather than an
unfriendly alien when temporarily present in the second State,
and, for those travelers who elect to become permanent
residents, the right to be treated like other citizens of that State.”
Id. at 500.
Most right to travel cases, however, focus on the
Constitutionality of a particular state statute that may treat a
state’s citizens in a preferred manner as compared to newly
arrived migrants. See e.g. Doe v. Pa. Bd. Probation and Parole,
513 F.3d 95 (3d Cir. 2008). Here Shenandoah insists: “SORNA
penalizes a distinct group of sex offenders for exercising their
right to travel because they are then subject to federal
prosecution for failing to register as a sex offender where
individuals who do not travel interstate are not so penalized.”
This is true, but meaningless. Shenandoah may travel interstate,
but when he does, must register in the new state, while a
convicted sex offender who remains within a state need only
remain properly registered therein. There is simply no
Constitutional violation. Moreover, moving from one
jurisdiction to another entails many registration requirements
required by law which may cause some inconvenience, but
which do not unduly infringe upon anyone’s right to travel. The
essential part of the charged crime in this matter is the failure to
register; Shenandoah’s right to travel is incidental to this
obligation, and not constitutionally offended.
Finally, it is worth noting that the Constitutional right of
interstate travel is not an absolute right, and the burden imposed
upon Shenandoah is necessary to achieve a compelling interest.
Sex offender registration requirements may be burdensome, and
the consequences may interfere with a registrant's freedom.
However, society, through its legislative processes, has decided
again and again that it has a compelling and strong interest in
preventing future sex crimes. We conclude that this interest
-21-
outweighs any burden imposed. See also Ambert, 561 F.3d at
1210 (“The requirement to update a registration under SORNA
is undoubtedly burdensome; however, the government's interest
in protecting others from future sexual offenses and preventing
sex offenders from subverting the purpose of the statute is
sufficiently weighty to overcome the burden. This statute does
not violate Ambert's right to travel.”). Any impediment on
Shenandoah’s travel does not reach the Constitutional threshold
of his right to travel interstate.
V.
Shenandoah additionally argues that Congress’
delegation of authority to the Attorney General under 42 U.S.C.
§ 16913(d) violates the nondelegation doctrine. He also
maintains that the Attorney General’s Interim Rule of February
28, 2007, violated the Administrative Procedures Act, 5 U.S.C.
§ 553, by failing to provide a public notice and comment period.
We do not reach these issues. The allegations contained
in the indictment here do not establish a record of Shenandoah’s
failure to comply with the initial registration requirements
discussed in 42 U.S.C. § 16913(b) & (d). Since Shenandoah was
already a registered sex offender when SORNA was enacted,
SORNA only required him to keep his registration current on
and after July 27, 2006. To the extent that he argues that the
passage of SORNA should be construed to mean that all
registered sex offenders are once again required to initially
register pursuant to § 16913(b) & (d), we disagree. Such a
reading of the statute is not warranted by the statutory language
or common sense. While subsections (b) and (d) when read
together seem to contemplate the need for clarification as to
“initial registrations” by persons convicted of qualifying sex
offenses prior to July 27, 2006, that need for clarification applies
to a limited class of persons who, for various reasons, did not
-22-
have a registration requirement prior to the passage of SORNA
but nonetheless were subject to sex offender registration
requirements after SORNA became law on July 27, 2006.
Shenandoah does not fall within this class of persons.
The allegations in this case clearly pertain to
Shenandoah’s failure to keep his registration current and, as
such, are covered by 42 U.S.C. § 16913(a) & (c). See May, 535
F.3d at 918-19. Under these subsections, Shenandoah was
required to “keep [his] registration current, in each jurisdiction”
in which he resided and “not later than 3 business days after
each change of . . . residence . . . appear in person in at least 1
jurisdiction . . . and inform that jurisdiction of all changes in the
information required . . . in the sex offender registry.” 42 U.S.C.
§ 16913(a) & (c).
The regulations promulgated by the Attorney General
pursuant to § 16913(d) do not apply here and we express no
opinion on their validity. The manner in which these regulations
were promulgated pursuant to the delegation contained in §
16913(d), is likewise irrelevant since we have concluded that the
allegations against Shenandoah do not involve an “initial
registration” pursuant to § 16913(b). See May, 535 F.3d at
916-19. Because Shenandoah had already initially registered as
a sex offender under state law when SORNA was enacted,
subsection (d) of Section 16913 did not apply to him. He was
required to keep his registration current under subsections (a)
and (c). He did not do so. Shenandoah was then charged under
the congressionally-defined crime in 18 U.S.C. § 2250 and in
particular for failing to update his registration. The Attorney
General’s interim rule as to initial registrations simply does not
apply. Shenandoah, therefore, does not have standing to
challenge the rule or the manner in which it was promulgated.
VI.
-23-
The judgment of the District Court will be affirmed.
-24-