United States v. Billy Ross

Case: 09-50890 Document: 00511166897 Page: 1 Date Filed: 07/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 8, 2010
No. 09-50890
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
BILLY RAY ROSS,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:09-CR-977-1
Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Billy Ray Ross appeals from his conviction of failing to register as a sex
offender, pursuant to 18 U.S.C. § 2550.
He argues in his appellant’s brief that the interim regulations making the
Sex Offender Registration and Notification Act (SORNA) retroactive violated the
Administrative Procedure Act (APA) because the Attorney General failed to
allow a comment period before promulgating the regulations. He concedes in his
reply brief that the Government is correct that his APA argument is unavailing
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-50890 Document: 00511166897 Page: 2 Date Filed: 07/08/2010
No. 09-50890
because the permanent regulations governing retroactivity apply to his case.
Ross has abandoned the APA issue and we do not consider it. See Morin v.
Caire, 77 F.3d 116, 120 n.6 (5th Cir. 1996).
Ross asserts that the Government failed to show that he knowingly failed
to register as a sex offender or update his registration because it failed to show
that he had knowledge of the requirements of SORNA. Ross’s argument is
foreclosed. See United States v. Heth, 596 F.3d 255, 258 (5th Cir. 2010); United
States v. Whaley, 577 F.3d 254, 262 n.6 (5th Cir. 2009).
He contends that SORNA is beyond Congress’s power under the Commerce
Clause. He argues that SORNA violates the Due Process Clause because no
notice of the statute’s registration requirements is required for a violation of the
statute and because he was prosecuted before any state implemented SORNA.
He concedes that his contentions are foreclosed, but he raises them to preserve
them for further review. Ross’s Commerce Clause and Due Process Clause
contentions are foreclosed. See Heth, 596 F.3d at 259-60; Whaley, 577 F.3d at
258-62.
AFFIRMED.
2