United States v. Anthony Kebodeaux

REVISED July 14, 2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT States Court of Appeals
United
Fifth Circuit
FILED
July 12, 2011
No. 08-51185
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ANTHONY JAMES KEBODEAUX, also known as Anthony Kebodeaux,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:
The petition for rehearing en banc, treated as a petition for panel
rehearing, is GRANTED. We withdraw our prior opinion, United States v.
Kebodeaux, 634 F.3d 293 (5th Cir. 2011), and substitute the following.
Defendant, Anthony Kebodeaux, a federally-adjudged sex offender, was
convicted of knowingly failing to update his sex offender registration after his
intrastate change of residence (from El Paso to San Antonio, Texas) as required
by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.
§ 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and
one day of imprisonment. On appeal, he argues that the Constitution does not
No. 08-51185
grant Congress the authority to enact § 2250(a)(2)(A), read together with
§ 16913, because that provision regulates purely intrastate activities, rather
than any aspect of Congress’s proper domain of interstate commerce—and that
no other Article I source of authority permits Congress to impose SORNA’s
registration and notification obligations on him. We conclude that
§ 2250(a)(2)(A) is constitutional.
BACKGROUND
In 1999, Kebodeaux, a twenty-one-year-old member of the United States
Air Force, was convicted under Article 120 of the Uniform Code of Military
Justice (“UCMJ”), 10 U.S.C. § 920, of Carnal Knowledge With a Child, and
sentenced to three months of confinement and a bad conduct discharge. The
victim was a fifteen-year-old with whom Kebodeaux had sexual relations to
which the victim assented in fact though she lacked the legal ability to consent.
Kebodeaux served his sentence and was discharged from the military. No term
of supervised release was imposed.
On August 8, 2007, Kebodeaux registered as a sex offender in El Paso,
Texas, and reported his residence at a street address in that city, in compliance
with SORNA. See 42 U.S.C. § 16913. On January 24, 2008, El Paso police were
unable to locate Kebodeaux at that address. On March 12, 2008, Kebodeaux was
found and arrested in San Antonio, Texas. Kebodeaux admits that he did not
update his registration or otherwise inform authorities of his relocation from El
Paso to San Antonio as required by SORNA.1 On April 2, 2008, a federal grand
1
42 U.S.C. § 16913(a) provides: “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.” 42 U.S.C. § 16913(c) also provides, “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
2
No. 08-51185
jury indicted Kebodeaux on one count of violation of SORNA, 18 U.S.C.
§ 2250(a).
Section 2250(a) makes it a crime punishable by up to ten years
imprisonment if a person who:
(1) is required to register under [SORNA];
(2) (A) is a sex offender as defined for the purposes of
[SORNA] by reason of a conviction under Federal
law (including the [UCMJ]), 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 [SORNA].
Thus, “Section 2250 imposes criminal liability on two categories of persons who
fail to adhere to SORNA’s registration [and updating] requirements: any person
who is a sex offender ‘by reason of a conviction under Federal law, the law of the
District of Columbia, Indian tribal law, or the law of any territory or possession
of the United States, § 2250(a)(2)(A), and any other person required to register
under SORNA who ‘travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr v. United States, 130
S. Ct. 2229, 2238 (2010) (alteration removed). Accordingly, “[f]or persons
convicted of sex offenses under federal or Indian tribal law, interstate travel is
not a prerequisite to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)).
In response to Kebodeaux’s pre-trial filings, the Government stated that
it was charging Kebodeaux solely because he fell under 18 U.S.C. § 2250(a)(2)(A),
jurisdictions in which the offender is required to register.”
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No. 08-51185
as he qualified as a sex offender “for the purpose of” SORNA “by reason of a
conviction under . . . the [UCMJ]” and knowingly failed to update his registration
when he moved intra-state, within Texas.2 After a bench trial on the stipulated
facts described above, Kebodeaux was convicted and subsequently sentenced
below the Sentencing Guidelines recommendation to twelve months and one day
of imprisonment, with a five-year term of supervised release. Kebodeaux timely
appeals the constitutionality of his conviction and sentence.
DISCUSSION
We review challenges to the constitutionality of a conviction de novo.
United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009).
Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s
punishment of a federal sex offender – who has previously registered under
SORNA – for knowingly failing to update his registration after an intrastate
relocation in violation of the registration requirement imposed by § 16913. He
concedes the constitutional validity of the balance of SORNA’s provisions.
We must begin any assessment of the constitutionality of a duly-enacted
federal statute with a “presumption of constitutionality.” United States v.
Morrison, 529 U.S. 598, 607 (2000). This presumption itself is grounded in the
Constitution: “Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment only upon
a plain showing that Congress has exceeded its constitutional bounds.” Id. We
remain, of course, mindful that in some cases a party will succeed in making this
“plain showing,” and that in those cases it is our obligation to declare the law
unconstitutional. Cf. Morrison, 529 U.S. at 616, 627 (holding part of the
Violence Against Women Act outside Congress’s authority to enact); United
2
The Government also stated that it was not charging Kebodeaux under
§ 2250(a)(2)(B), for having traveled in interstate or foreign commerce or having entered an
Indian reservation and knowingly having failed to update his registration.
4
No. 08-51185
States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding the Gun-Free School Zones
Act unconstitutional).
Along these lines, we note that we do not write on a blank slate as to
SORNA, as it has withstood constitutional scrutiny on a number of fronts in the
years since its enactment. Our court has previously held that, as applied to sex
offenders who traveled across state lines, § 16913, taken together with
§ 2250(a)(2)(B), does not run afoul of the Commerce Clause, United States v.
Whaley, 577 F.3d 254, 258 (5th Cir. 2009), the Due Process Clause, id. at 262, or
the non-delegation doctrine, id. at 264. We have also held that SORNA comports
with the requirements of the Ex Post Facto Clause because “the forbidden act
[viz., failure to register] is not one which was legal at the time [the appellant]
committed it.” United States v. Young, 585 F.3d 199, 203–04 (5th Cir. 2009); see
also Smith v. Doe, 538 U.S. 84, 92 (2003) (holding Alaska’s state sex offender
statute did not run afoul of the Ex Post Facto Clause because the law was “a
regulatory scheme that is civil and nonpunitive” in intention and in fact). We
have rejected challenges to the application of SORNA under the Due Process
Clause where the involved states maintained sex offender registries but had not
formally implemented SORNA. United States v. Heth, 596 F.3d 255, 259 (5th
Cir. 2010). We also have held that SORNA does not “compel the States to enact
or enforce a federal regulatory program” in violation of the Tenth Amendment.
United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011) (quoting Printz v.
United States, 521 U.S. 898, 935 (1997)), petition for cert. filed, No. 10-10330
(U.S. filed May 3, 2011).3 Furthermore, no other circuit has held any portion of
3
We have moreover reiterated and reaffirmed each of these holdings in a range of
unpublished cases. See United States v. Byrd, No. 09-51108, 2011 U.S. App. LEXIS 5962, at
*10–12 (5th Cir. Mar. 22, 2011) (following Heth and Whaley); United States v. Koch, 403 F.
App’x 917, 917 (5th Cir. 2010) (following Whaley); United States v. Ross, 385 F. App’x 364, 365
(5th Cir.) (following Heth and Whaley), cert. denied, 131 S. Ct. 583 (2010); United States v.
Marrufo, 381 F. App’x 403, 404–05 (5th Cir. 2010) (following Heth and Whaley); United States
v. Contreras, 380 F. App’x 434, 435–36 (5th Cir. 2010) (following Heth and Whaley); United
5
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SORNA unconstitutional,4 and the few district courts that have rejected any part
of SORNA as unconstitutional have all been reversed or overruled on the merits.
See, e.g., United States v. Waybright, 561 F. Supp. 2d 1154, 1168 (D. Mont. 2008),
overruled by United States v. George, 625 F.3d 1124, 1129 n.2 (9th Cir. 2010);
United States v. Powers, 544 F. Supp. 2d 1331, 1336 (M.D. Fla. 2008), rev’d, 562
F.3d 1342, 1344 (11th Cir. 2009) (per curiam); United States v. Guzman, 582 F.
Supp. 2d 305, 315 (N.D.N.Y. 2008), rev’d, 591 F.3d 83, 89–91 (2d Cir. 2010), cert.
denied, 130 S. Ct. 3487; United States v. Hall, 577 F. Supp. 2d 610, 623
(N.D.N.Y. 2008), rev’d sub nom. United States v. Guzman, 591 F.3d at 89–91.
Of these various cases upholding SORNA, the Ninth Circuit’s decision in
George is the one that directly addressed the issue presented by this appeal. The
Ninth Circuit held that Congress acted within its powers, explaining that
“SORNA’s registration requirements in [§ 2250(a)(2)(A)] are valid based on the
federal government’s ‘direct supervisory interest’ over federal sex offenders.”
625 F.3d at 1130 (quoting Carr, 130 S. Ct. at 2239).5 While George, of course,
States v. McBroom, No. 09-50443, 2010 U.S. App. LEXIS 11113, at *3–4 (5th Cir. June 1,
2010) (following Heth and Whaley), cert. denied, 131 S. Ct. 484 (2010); United States v. Slater,
373 F. App’x 526, 527 (5th Cir. 2010) (following Young); United States v. Knezek, No. 09-50438,
2010 U.S. App. LEXIS 8585, at *2–3 (5th Cir. Apr. 26, 2010) (following Heth and Whaley);
United States v. Letourneau, 342 F. App’x 24, 26–27 (5th Cir. 2009) (following Whaley), cert.
denied, 130 S. Ct. 1736 (2010); United States v. Puente, 348 F. App’x 76, 77 (5th Cir. 2009)
(following Whaley), cert. denied, 130 S. Ct. 1747 (2010).
4
The Ninth Circuit had held that one portion of the regulations issued by the Attorney
General under SORNA posed an Ex Post Facto Clause problem as to the narrow category of
federally-adjudicated juvenile delinquents. See United States v. Juvenile Male, 590 F.3d 924
(9th Cir. 2009). The Supreme Court, however, recently vacated that decision on mootness
grounds without reaching the merits of the Ninth Circuit’s ruling. United States v. Juvenile
Male, No. 09-940, 2011 WL 2518925, at *3 (U.S. June 27, 2011).
5
The district courts that have considered the question have likewise consistently held
that § 2250(a)(2)(A) is constitutional. See United States v. Morales, 258 F.R.D. 401, 406 (E.D.
Wash. 2009), appeal docketed, No. 09-30344 (9th Cir. filed Sept. 23, 2009); United States v.
Thompson, 595 F. Supp. 2d 143, 145–46 (D. Me. 2009), aff’d on other grounds, No. 09-1946,
2011 U.S. App. LEXIS 11408 (1st Cir. June 3, 2011) (unpublished); United States v.
Yelloweagle, No. 08-cr-364, 2008 U.S. Dist. LEXIS 105479, at *3–5 (D. Colo. Dec. 23, 2008),
6
No. 08-51185
does not bind us, “[w]e are always chary to create a circuit split,” Alfaro v.
Comm’r, 349 F.3d 225, 229 (5th Cir. 2003), absent a “persuasive reason” for
doing so, United States v. Adam, 296 F.3d 327, 332 (5th Cir. 2002).
Kebodeaux thus faces a high, though not insurmountable, hurdle to
reversal: he must overcome the presumption of constitutionality we accord a
federal statute and convince us to create a circuit split. In our assessment,
Kebodeaux has not cleared this bar.
The arguments that Kebodeaux made in support of his position to the
district court and in his initial briefing to our court focused on the Commerce
Clause. As discussed above, SORNA makes it a federal offense, through
§ 2250(a)(2)(B), for a sex offender convicted under state or federal law to
knowingly fail to update his SORNA registration after traveling in interstate
commerce. This court and others have consistently held that § 2250(a)(2)(B) is
a constitutional execution of Congress’s power to regulate the channels of, and
persons in, interstate commerce.6 Kebodeaux does not question those holdings
or the constitutionality of § 2250(a)(2)(B). He argues only that § 2250(a)(2)(A)
aff’d on other grounds, No. 09-1247, 2011 U.S. App. LEXIS 8934 (10th Cir. May 2, 2011);
United States v. Santana, 548 F. Supp. 2d 941, 946–47 (W.D. Tex. 2008), appeal docketed, No.
08-51226 (5th Cir. filed Dec. 5, 2008); United States v. Reeder, No. EP-08-CR-977, 2008 U.S.
Dist. LEXIS 105968 (W.D. Tex. Oct. 31, 2008), appeal docketed, No. 08-51212 (5th Cir. filed
Nov. 26, 2008); United States v. Torres, 573 F. Supp. 2d 925, 935–36 (W.D. Tex. 2008), appeal
docketed, No. 09-50204 (5th Cir. filed Mar. 16, 2009); United States v. Senogles, 570 F. Supp.
2d 1134, 1147 (D. Minn. 2008); see also United States v. David, No. 1:08-cr-11, 2008 U.S. Dist.
LEXIS 38613, at *26 n.11 (W.D.N.C. May 12, 2008) (suggesting that § 2250(a)(2)(A) is
constitutional in dicta), aff’d, 333 F. App’x 726 (4th Cir. 2009) (unpublished); United States v.
Voice, 621 F. Supp. 2d 741, 760 (D.S.D. 2009) (holding that a sex offender convicted under
federal law in Indian country and then residing in Indian country could be constitutionally
convicted under § 2250(a)(2)(A)), aff’d, 622 F.3d 870 (8th Cir. 2010), cert denied, 131 S. Ct.
1058 (2011).
6
Whaley, 577 F.3d at 258; accord George, 625 F.3d at 1129–30; Guzman, 591 F.3d at
90; United States v. Gould, 568 F.3d 459, 470-72 (4th Cir. 2009), cert. denied, 130 S. Ct. 1686
(2010); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. May,
535 F.3d 912, 921-22 (8th Cir. 2008).
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is unconstitutional because it is an invalid attempt by Congress to regulate
intrastate activities, rather than interstate commerce.
Kebodeaux’s argument ignores the fact that § 2250(a)(2)(A) does not
depend on the “interstate commerce” jurisdictional hook. That subsection
expressly deals with persons convicted under federal sex offender statutes and
is conspicuously lacking the interstate travel element of § 2250(a)(2)(B); this
distinction is plainly intentional, see Carr, 130 S. Ct. at 2238. Federal sex
offender statutes themselves are promulgated under various provisions of
Article I. See, e.g., 18 U.S.C. § 2243(a) (criminalizing “sexual abuse of a minor
or ward” in United States “special maritime and territorial jurisdiction”,
pursuant to Congress’s Article I power “[t]o define and punish . . . felonies
committed on the high seas”). In the present case, Congress had the authority
to enact Article 120 of the UCMJ, criminalizing sexual abuse of a minor by a
member of the military, pursuant to its power to regulate the military under
Article I, Section 8, Clause 14 of the United States Constitution.7 Kebodeaux
does not suggest that Congress lacked the authority to criminalize the conduct
of which he was convicted or that the statute under which he was convicted was
unconstitutional.
The question then becomes whether Congress’s power over federal sex
offenses stretches far enough to encompass a registration requirement. The
Necessary and Proper Clause of the Constitution gives Congress the power “[t]o
make all laws which shall be necessary and proper for carrying into Execution”
the enumerated powers. U.S. CONST., art. I, § 8, cl. 18. Our analysis of this
issue is governed by United States v. Comstock, 130 S. Ct. 1949 (2010).
7
To the extent that the UCMJ applies to members of the National Guard when engaged
in certain functions in federal service, see 10 U.S.C. § 802(a)(3), Article 120 likely also derives
from Article I, § 8, clause 16, which authorizes laws “for organizing, arming, and disciplining,
the Militia, and for governing such Part of them as may be employed in the Service of the
United States.” In any event, as applied to Kebodeaux, at the time of his conviction a member
of the regular armed forces of the United States, the relevant source of authority is clause 14.
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In Comstock, the Court held constitutional a civil commitment statute for
sexually-dangerous federal prisoners, 18 U.S.C. § 4248, under the Necessary and
Proper Clause. Id. at 1954. The Court pointed to “five considerations” that
supported the conclusion that the statute was constitutional:
(1) the breadth of the Necessary and Proper Clause, (2) the long
history of federal involvement in this arena, (3) the sound reasons
for the statute’s enactment in light of the Government’s custodial
interest in safeguarding the public from dangers posed by those in
federal custody, (4) the statute’s accommodation of state interests,
and (5) the statute’s narrow scope.
Id. at 1965. These five considerations must be part of our assessment here, but
we note at the outset that these “considerations” are not factors to be balanced
or that may cut for or against the constitutionality of a statute but rather an
articulation of every reason supporting the Court’s conclusion that the civil
commitment at issue in Comstock was constitutional. Comstock does not require
that every one of these considerations be present in every case, nor does
Comstock in any respect purport to overrule the Court’s prior decisional law.
Rather, Comstock demonstrates the distillation and application of existing law
under the Necessary and Proper Clause to a particular statute.
As Comstock and the cases on which it relies make clear, two of the
considerations—the first and third—are and have long been required in every
case decided under the Necessary and Proper Clause: first, that the challenged
statute must “constitute[] a means that is rationally related to the
implementation of a constitutionally enumerated power,” id. at 1956 (citing
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), and Sabri v. United
States, 541 U.S. 600, 605 (1941)); and, second, that the statute must similarly
reflect a “‘means . . . “reasonably adapted” to the attainment of a legitimate end
under’” an enumerated power, id. at 1957 (quoting Gonzales v. Raich, 545 U.S.
1, 37 (2005) (Scalia, J., concurring) (quoting United States v. Darby, 312 U.S.
9
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100, 121 (1941))); see also id. at 1961 (“Moreover, § 4248 is ‘reasonably adapted’
to Congress’ power to act as responsible federal custodian (a power that rests,
in turn, on federal criminal statutes that legitimately seek to implement
constitutionally enumerated authority.” (quoting Darby, 312 U.S. at 121)). The
remaining three considerations addressed in Comstock further inform rather
than define the inquiry. See, e.g., id. at 1959 (“We recognize that even a
longstanding history of related federal action does not demonstrate a statute’s
constitutionality. A history of involvement, however, can nonetheless be ‘helpful
in reviewing the substance of a congressional statutory scheme.’” (internal
citations omitted) (quoting Raich, 545 U.S. at 21)).
We thus address the fundamental inquiry under the Necessary and Proper
Clause, that is, the first and third Comstock factors: is the challenged statute
rationally related to an enumerated power and reasonably adapted to serve that
end? On these questions, the Supreme Court’s decision in Carr offers, as the
Ninth Circuit noted in George, useful guidance. In explaining why
§ 2250(a)(2)(B) should be read differently from § 2250(a)(2)(A), the Court held
that
Congress . . . chose to handle federal and state sex offenders
differently. There is nothing “anomal[ous]” about such a choice. To
the contrary, it is entirely reasonable for Congress to have assigned
the Federal Government a special role in ensuring compliance with
SORNA’s registration requirements by federal sex
offenders—persons who typically would have spent time under
federal criminal supervision. It is similarly reasonable for Congress
to have given the States primary responsibility for supervising and
ensuring compliance among state sex offenders and to have
subjected such offenders to federal criminal liability only when,
after SORNA’s enactment, they use the channels of interstate
commerce in evading a State’s reach.
...
. . . Congress in § 2250 exposed to federal criminal liability,
with penalties of up to 10 years’ imprisonment, persons required to
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No. 08-51185
register under SORNA over whom the Federal Government has a
direct supervisory interest or who threaten the efficacy of the
statutory scheme by traveling in interstate commerce.
130 S. Ct. at 2238–39; see also George, 625 F.3d at 1130 (quoting Carr, 130 S. Ct.
at 2238, 2239). This quotation from Carr8 thus suggests that § 2250(a) makes
SORNA applicable two categories of sex offenders for two distinct reasons: (1)
state offenders who move across state lines and thus threaten to undermine the
sex offender registration laws that every state has enacted, and (2) federal
offenders—not because of any federal concern about their impact on or
relationship to the nationwide registration scheme, but rather because of the
distinct consideration of “the Federal Government[’s] direct supervisory interest”
over former federal prisoners. Id. at 2239.9 This logic traces the authority for
§ 2250, in Kebodeaux’s case, through the Necessary and Proper Clause back
ultimately to the power to “make Rules for the Government and Regulation of
the land and naval Forces.” U.S. CONST., art. I, § 8, cl. 14. That is, inasmuch as
Congress had the power to enact Article 120 of the UCMJ, Congress also has
the additional power to imprison people who violate th[at] . . . law[],
and the additional power to provide for the safe and reasonable
management of those prisons, and the additional power to regulate
the prisoners’ behavior even after their release. Of course, each of
those powers, like the powers addressed in Sabri, Hall, and
McCulloch, is ultimately “derived from” an enumerated power.
Comstock, 130 S. Ct. at 1964 (quoting United States v. Hall, 98 U.S. 343, (8 Otto)
345 (1879)).
8
As quoted above, the prior paragraph to this sentence refers to federal prisoners “who
typically would have spent time under federal criminal supervision.” Id. at 2238 (emphasis
added). Carr therefore does not distinguish between the federal government’s interest in
current and former prisoners; to the contrary, this language suggests that past federal criminal
supervision can still be a basis for a sufficient present interest to permit the registration
requirement at issue here.
9
The language in Carr concerning § 2250(a)(2)(A) is not strictly part of the binding
holding of the Court’s opinion, but we are nevertheless hesitant to discard wholesale any
portion of a recent Supreme Court decision discussing this very statute.
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Kebodeaux argues that Comstock’s endorsement of Congress’s “power to
regulate prisoners’ behavior even after their release,” id., refers only to the
power to authorize probation and supervised release as part of a criminal
sentence; he then contends that these powers are different in kind from the
obligations imposed under SORNA because they are imposed at the time of the
criminal judgment. This purported distinction conflates the question of the
Article I power to impose an obligation with that of the limitations that the Ex
Post Facto Clause, U.S. CONST., art. I, § 9, cl. 3,10 interposes. To be a permissible
exercise of Congress’s powers, a law must of course both be authorized under
Article I, § 8, and not be prohibited under Article I, § 9, or the various other
provisions of and amendments to the Constitution that pose substantive limits
on Congress’s power. See Comstock, 130 S. Ct. at 1956 (“The question presented
is whether the Necessary and Proper Clause, Art. I, § 8, cl. 18, grants Congress
authority sufficient to enact the statute before us. In resolving that question, we
assume, but we do not decide, that other provisions of the Constitution—such as
the Due Process Clause—do not prohibit [the law at issue].”). Supervised release
must be imposed as part of criminal judgment because it is punitive, but our
precedent holds—following the Supreme Court—that the minimal reporting
requirements under SORNA are not punitive within the meaning of the Ex Post
Facto Clause. Young, 585 F.3d at 202–06 (citing Smith, 538 U.S. at 95). Both,
however, are post-release regulations of the behavior of former federal prisoners
and derive from the same source of authority as an Article I, § 8 matter. That
is, no one contests that Congress may impose some post-release obligations on
10
As we noted in Young, there are in fact two clauses barring the federal government
as well as the states “from enacting any law ‘which imposes a punishment for an act which was
not punishable at the time it was committed; or imposes additional punishment to that then
prescribed . . . .’” 585 F.3d at 202 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277,
325–26 (1867)). Article I, § 9, clause 3, is the clause that restricts the federal government’s
power.
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No. 08-51185
a federal prisoner; this case simply presents the question of whether the fact
that those regulations are, as SORNA’s are, non-punitive, civil collateral
consequences—and thus not subject to Ex Post Facto Clause
limitations—weakens that authority to the point of unconstitutionality.
Kebodeaux offers no authority that it does, and we hold that it does not.
This analysis converges with the fifth Comstock consideration, the narrow
scope of the challenged statute. That is, we need not “fear that our holding today
confers on Congress a general ‘police power, which the Founders denied the
National Government and reposed in the States.’” Comstock, 130 S. Ct. at 1964
(quoting Morrison, 529 U.S. at 618). SORNA applies only to narrow, specific
class of federal offenders who Congress has concluded present a high risk to the
public—and imposes only them the non-punitive obligation that they provide
basic registration information to state and local governments.11 The law does
not draw within its sweep all persons convicted of federal crimes, and it does not
impose significant burdens on those to whom it applies. We need not, that is,
even decide the question of whether Congress may permissibly establish non-
punitive collateral consequences for all federal crimes—only sex offenses; and we
may rely on the Ex Post Facto Clause to provide a separate outer boundary on
the kinds of obligations that Congress may require. In short, this limited
extension of federal authority is unlikely to devolve into the general police power
that the Supreme Court has repeatedly cautioned does not rest with the federal
government.
11
We recognize that SORNA is not as narrow in the scope of its application as is § 4248,
see Comstock, 130 S. Ct. at 1964–65 (explaining that the law had only been applied to civilly
commit 105 sexually-dangerous persons, and that the law did not extend to persons wholly
released from federal custody), but the limited nature of the obligations SORNA
imposes—notification and registration—contrasts sharply with the indefinite civil commitment
in a Bureau of Prisons mental health facility that § 4248 authorizes so as to counterbalance
SORNA’s more expansive reach.
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Turning to the second Comstock consideration—the history of federal
action in the arena, we agree that federal sex offender registration laws are of
relatively recent vintage. See Carr, 130 S. Ct. at 2232 (noting that federal sex
offender registration laws date to 1994). However, we do not consider that
“relatively recent vintage” to be dispositive, and the Court in Comstock did not
make it so.
The fourth consideration, the extent of the statute’s accommodation of
state interests, is addressed to some degree by our opinion in Johnson. We held
there that SORNA as a whole poses no Tenth Amendment problem because the
law imposes no actual mandate on the states: “While SORNA orders sex
offenders traveling interstate to register and keep their registration current,
SORNA does not require the States to comply with its directives. Instead, the
statute allows jurisdictions to decide whether to implement its provisions or lose
ten percent of their federal funding otherwise allocated for criminal justice
assistance.” 632 F.3d at 920 (citing 42 U.S.C. § 16925(a)). By affording states
the option to decline to comply with the law’s specific requirements, SORNA
provides some accommodation of state interests. Further, the subsection in
question addresses the federal interest in a federal convict. See George, 625 F.3d
at 1130.
We therefore read Comstock and Carr as supporting our holding that
Congress had the authority under Article I of the Constitution to devise a
narrow, non-punitive collateral regulatory consequence to this particular high-
risk category of federal criminal convictions. Kebodeaux has failed to make the
“plain,” Morrison, 529 U.S. at 607, and “persuasive,” Adam, 296 F.3d at 332,
showing we demand before overturning the considered judgment of the
legislative and executive branches of the federal government and departing from
that of the remainder of the judicial branch.
CONCLUSION
14
No. 08-51185
Accordingly, we conclude that § 2250(a)(2)(A)’s application to intra-state
violations of SORNA by sex offenders convicted under federal law is
constitutional. The judgment of the district court is AFFIRMED.
15
No. 08-51185
DENNIS, Circuit Judge, concurring in the judgment and assigning reasons:
Defendant Anthony Kebodeaux, a federally-adjudged sex offender, was
convicted of knowingly failing to update his sex offender registration after his
intra-state change of residence (from El Paso to San Antonio, Texas) as required
by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.
§ 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and
one day of imprisonment. On appeal, he argues that the Constitution does not
grant Congress the authority to enact § 2250(a)(2)(A) because that provision
regulates purely intra-state activities, rather than any aspect of Congress’s
proper domain of interstate commerce. I conclude, however, that § 2250(a)(2)(A)
is constitutional because it is not a stand-alone statute, but is part of SORNA
and necessary to make SORNA effective in regulating the channels of, and
persons in, interstate commerce.
Under § 2250(a)(2)(B), SORNA makes it a federal offense for a sex offender
convicted under state or federal law to knowingly fail to update his SORNA
registration after traveling in interstate commerce. This court and others have
consistently held that § 2250(a)(2)(B) is a constitutional execution of Congress’s
power to regulate the channels of, and persons in, interstate commerce.1
Kebodeaux does not question those holdings or the constitutionality of
§ 2250(a)(2)(B). He argues only that § 2250(a)(2)(A), in isolation, is
unconstitutional because it is an invalid attempt by Congress to regulate intra-
state activities, rather than interstate commerce.
Kebodeaux’s challenge is without merit because § 2250(a)(2)(A) is an
integral part of SORNA, rather than a stand-alone provision, and, as such, it is
a constitutional regulation of intra-state activities that is necessary and proper
1
United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009); accord United States v.
Guzman, 591 F.3d 83, 90 (2d Cir. 2010); United States v. Gould, 568 F.3d 459, 470-72 (4th Cir.
2009); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. May,
535 F.3d 912, 921-22 (8th Cir. 2008).
16
No. 08-51185
to make SORNA, particularly § 2250(a)(2)(B), effective as a regulation of
interstate commerce. As structured, SORNA is designed to “address the
deficiencies in prior law that had enabled sex offenders to slip through the
cracks” by moving interstate.2 It recognizes that “‘every state ha[s] enacted some’
type of [sex offender] registration system”3 and that “Congress . . . conditioned
certain federal funds on States’ adoption of ‘criminal penalties’ on any person
‘required to register under a State program . . . who knowingly fails to so register
and keep such registration current.’”4 In this manner, SORNA gave “the States
primary responsibility for supervising and ensuring compliance among state sex
offenders.”5 Through § 2250(a)(2)(B), however, it “exposed to federal criminal
liability . . . persons required to register under SORNA . . . who threaten the
efficacy of the statutory scheme by traveling in interstate commerce.”6 Moreover,
Congress did not delegate to the states the additional responsibility of
prosecuting sex offenders convicted under federal law who fail to update their
registrations after in-state residence changes. Rather, SORNA makes such an
intra-state re-registration failure a federal offense amenable to prosecution by
the federal government. Accordingly, § 2250(a)(2)(A) helps to make SORNA’s
regulation of interstate commerce effective by obviating potential sources of
interference or disruption of that objective. For example, had Congress not
criminalized federal sex offenders’ undocumented, intra-state residence changes,
2
Carr v. United States, 130 S. Ct. 2229, 2240 (2010) (also quoting 42 U.S.C. § 16901
as stating, “‘Congress in this chapter establishes a comprehensive national system for the
registration of [sex] offenders’” (alteration in original)).
3
Id. at 2239 n.7 (alteration omitted) (quoting Smith v. Doe, 538 U.S. 84, 90 (2003)).
4
Id. at 2238-39 (second alteration in original) (quoting Jacob Wetterling Crimes
Against Children and Sexually Violent Offender Registration Act, Pub. L. 103-322, tit. XVII,
§ 170101(c), 108 Stat. 2041 (1994) (codified at 42 U.S.C. § 14071(d))).
5
Id. at 2238.
6
Id. at 2239.
17
No. 08-51185
there would be no deterrence to their moving intra-state without re-registering.
This would have caused disparate and delayed enforcement of SORNA against
federal sex offenders, allowing them to establish residences in some states as
apparent law abiders, which would have made them difficult to monitor either
in-state or in interstate commerce.
I.
On April 2, 2008, a federal grand jury indicted Kebodeaux on one count of
violating SORNA, 18 U.S.C. § 2250(a).7 Section 2250(a) provides for up to ten
years’ imprisonment for:
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.
Thus, “Section 2250 imposes criminal liability on two categories of persons who
fail to adhere to SORNA’s registration [and updating] requirements: any person
who is a sex offender ‘by reason of a conviction under Federal law, the law of the
7
42 U.S.C. § 16913(a) requires, “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.” 42 U.S.C. § 16913(c) also provides, “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.”
18
No. 08-51185
District of Columbia, Indian tribal law, or the law of any territory or possession
of the United States,’ § 2250(a)(2)(A), and any other person required to register
under SORNA who ‘travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr v. United States, 130
S. Ct. 2229, 2238 (2010) (alteration omitted). Accordingly, “[f]or persons
convicted of sex offenses under federal or Indian tribal law, interstate travel is
not a prerequisite to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)).
Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s
punishment of a federal sex offender for knowingly failing to update his
registration after an intra-state relocation. He concedes the constitutional
validity of the balance of SORNA’s provisions.
II.
Yet, as the Supreme Court recently explained in Carr v. United
States—holding that “[l]iability under § 2250[(a)(2)(B)] . . . cannot be predicated
on pre-SORNA travel,” 130 S. Ct. at 2233—“Section 2250 is not a stand-alone
response to the problem of missing sex offenders; it is embedded in [the] broader
statutory scheme” of the Adam Walsh Child Protection and Safety Act of 2006,
Pub. L. No. 109-248, 120 Stat. 587, which was “enacted to address the
deficiencies in prior law that had enabled sex offenders to slip through the
cracks” of state-based sex offender registration systems. Carr, 130 S. Ct. at 2240
(also quoting 42 U.S.C. § 16901 for the proposition that “‘Congress in this
chapter establishes a comprehensive national system for the registration of [sex]
offenders’” (alteration in original)); see also, e.g., United States v. Whaley, 577
F.3d 254, 259 (5th Cir. 2009) (“SORNA[] focus[es] on the problem of sex offenders
escaping their registration requirements through interstate travel . . . .”); United
States v. Ambert, 561 F.3d 1202, 1212 (11th Cir. 2009) (Congress enacted
SORNA “to create an interstate system to counteract the danger posed by sex
offenders who slip through the cracks or exploit a weak state registration system
19
No. 08-51185
by traveling or moving to another state without registering therein.’” (citing 42
U.S.C. § 16901)).
Accordingly, in Carr, the Supreme Court described how SORNA’s various
sections work together to further the joint state-federal goals of comprehensive
identification and registration of all state and federal sex offenders and
punishing those who knowingly avoid updating their registrations:
Among its many provisions, SORNA instructs States to maintain
sex-offender registries that compile an array of information about
sex offenders, [42 U.S.C.] § 16914; to make this information publicly
available online, § 16918; to share the information with other
jurisdictions and with the Attorney General for inclusion in a
comprehensive national sex-offender registry, §§ 16919-16921; and
to “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,”
§ 16913(e). Sex offenders, in turn, are required to “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,” § 16913(a), and to appear in person periodically to
“allow the jurisdiction to take a current photograph, and verify the
information in each registry in which that offender is required to be
registered,” § 16916.
Carr, 130 S. Ct. at 2240-41. The Court continued, “By facilitating the collection
of sex-offender information and its dissemination among jurisdictions, these
provisions, not § 2250, stand at the center of Congress’ effort to account for
missing sex offenders.” Id. at 2241. Therefore, 28 U.S.C. § 2250(a)(2)(A), a
subsection of that same statute, clearly was not enacted as a stand-alone
provision, but rather as a complement to the Act’s other provisions. Cf. Whaley,
577 F.3d at 259 (stating that § 2250 is “complementary” to SORNA’s registration
requirements in § 16913 (citing United States v. Dixon, 551 F.3d 578, 582 (7th
Cir. 2008))).
III.
20
No. 08-51185
The Necessary and Proper Clause of the Constitution gives Congress the
power “[t]o make all Laws which shall be necessary and proper for carrying into
Execution” the enumerated powers. U.S. Const. art. 1, § 8, cl. 18. Specifically, in
respect to effectuating the Commerce Clause power, the Supreme Court has
explained that the Necessary and Proper Clause provides Congress the authority
to enact “comprehensive legislation to regulate the interstate market” even when
that “regulation ensnares some purely intrastate activity.” Gonzales v. Raich,
545 U.S. 1, 22 (2005). In Raich, the Court held that under the Controlled
Substances Act (“CSA”), 21 U.S.C. § 801 et seq., through the Necessary and
Proper Clause power to effectuate the Commerce Clause authority, Congress
could regulate the intra-state production of marijuana as “Congress could have
rationally concluded that the aggregate impact on the national market of all the”
regulated intra-state activities “is unquestionably substantial.” 545 U.S. at 32.
In Raich, Justice Scalia concurred in the judgment and wrote separately
to explain that, although he “agree[d] with the Court’s holding that the [CSA]
may validly be applied to respondents’ [intra-state] cultivation, distribution, and
possession of marijuana for personal, medicinal use,” his “understanding of the
doctrinal foundation on which that holding rests is, if not inconsistent with that
of the Court, at least more nuanced.” Id. at 33 (Scalia, J., concurring in the
judgment). He explained that the combination of the Necessary and Proper
Clause power and the Commerce Clause authority means that “Congress’s
authority to enact laws necessary and proper for the regulation of interstate
commerce is not limited to laws directed against economic activities that have
a substantial effect on interstate commerce. . . . [Congress can] regulate[] [non-
economic activities] as ‘an essential part of a larger regulation of economic
activity, in which the regulatory scheme could be undercut unless the intrastate
activity were regulated.’” Id. at 36 (quoting United States v. Lopez, 514 U.S. 549,
561 (1995)). “The relevant question is simply whether the means chosen are
21
No. 08-51185
‘reasonably adapted’ to the attainment of a legitimate end under the commerce
power.” Id. at 37 (emphasis added) (quoting United States v. Darby, 312 U.S.
100, 121 (1941)).
Justice Scalia based his interpretation on a long line of Supreme Court
precedents. Id. at 34 (citing Katzenbach v. McClung, 379 U.S. 294, 301-02,
(1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942);
Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E.C. Knight
Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting); United States v. Coombs,
37 U.S. (12 Pet.) 72, 78 (1838)). Moreover, he explained, “[W]e implicitly
acknowledged in Lopez . . . [that] Congress’s authority to enact laws necessary
and proper for the regulation of interstate commerce is not limited to laws
directed against economic activities that have a substantial effect on interstate
commerce. Though the conduct in Lopez was not economic, the Court
nevertheless recognized that it could be regulated as ‘an essential part of a
larger regulation of economic activity, in which the regulatory scheme could be
undercut unless the intrastate activity were regulated.’” Id. at 36 (quoting Lopez,
514 U.S. at 561). “This statement referred to those cases permitting the
regulation of intrastate activities ‘which in a substantial way interfere with or
obstruct the exercise of the granted power.’” Id. (quoting Wrightwood Dairy Co.,
315 U.S. at 119) (citing Darby, 312 U.S. at 118-19; Shreveport Rate Cases, 234
U.S. at 353). “As the Court put it in Wrightwood Dairy, where Congress has the
authority to enact a regulation of interstate commerce, ‘it possesses every power
needed to make that regulation effective.’” Id. (quoting Wrightwood Dairy, 315
U.S. at 118-19). “Although this power ‘to make . . . regulation effective’ commonly
overlaps with the authority to regulate economic activities that substantially
affect interstate commerce, and may in some cases have been confused with that
authority, the two are distinct. The regulation of an intrastate activity may be
essential to a comprehensive regulation of interstate commerce even though the
22
No. 08-51185
intrastate activity does not itself ‘substantially affect’ interstate commerce.
Moreover, as the passage from Lopez quoted above suggests, Congress may
regulate even noneconomic local activity if that regulation is a necessary part of
a more general regulation of interstate commerce.” Id. at 37 (alteration in
original) (footnote omitted) (citing Lopez, 514 U.S. at 561). “The relevant
question is simply whether the means chosen are ‘reasonably adapted’ to the
attainment of a legitimate end under the commerce power.” Id. (emphasis added)
(quoting Darby, 312 U.S. at 121).
In United States v. Comstock, 130 S. Ct. 1949 (2010), the majority of the
Supreme Court confirmed Justice Scalia’s view that the Necessary and Proper
Clause empowers Congress to enact legislation that is “reasonably adapted” to
effectuating an enumerated power. Specifically, in Comstock, the Supreme Court
upheld a federal civil-commitment statute that “authorizes the Department of
Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the
date the prisoner would otherwise be released. 18 U.S.C. § 4248.” 130 S. Ct. at
1954. The Court concluded that Congress had such power based upon the
Necessary and Proper Clause’s authorization to implement the Commerce
Clause and other enumerated powers. Id. It explained that to determine whether
a statute was a constitutional exercise of the Necessary and Proper Clause
power, “we look to see whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power.” Id. at
1956 (emphasis added); see also id. at 1962 (stating that the statute is
constitutional under the Clause if it “represent[s] a rational means for
implementing a constitutional grant of legislative authority”). The
civil-commitment statute was constitutional, therefore, as it was “‘reasonably
adapted’ to Congress’ power to act as a responsible federal custodian[, ]a power
that rests, in turn, upon federal criminal statutes that legitimately seek to
implement constitutionally enumerated authority,” including the Commerce
23
No. 08-51185
Clause power. Id. at 1961 (emphasis added) (citation omitted) (quoting Darby,
312 U.S. at 121); see id. at 1964 (stating that criminal statutes “often, but not
exclusively” rely on the “Commerce Clause power”).
The Comstock majority described five factors it considered in holding that
the civil-commitment statute was constitutional: “(1) the breadth of the
Necessary and Proper Clause, (2) the long history of federal involvement in
[legislating in relation to ‘prison-related mental health statutes,’ like the one at
issue in Comstock, id. at 1958], (3) the sound reasons for the statute’s enactment
. . . , (4) the statute’s accommodation of state interests, and (5) the statute’s
narrow scope.” Id. at 1965. However, the majority opinion demonstrates that
these factors are merely ways of rephrasing or implementing the notion that
Congress may pass laws rationally related or reasonably adapted to the
effectuation of enumerated powers. For example, in discussing the first factor,
the Court wrote: “We have . . . made clear that, in determining whether the
Necessary and Proper Clause grants Congress the legislative authority to enact
a particular federal statute, we look to see whether the statute constitutes a
means that is rationally related to the implementation of a constitutionally
enumerated power.” Id. at 1956. Regarding the second factor, the Court
explained that the history of federal involvement in an area could not on its own
“demonstrate a statute’s constitutionality”; instead, the Court stated that it was
a means of analyzing “the reasonableness of the relation between the new
statute and pre-existing federal interests.” Id. at 1958. Similarly, in expounding
the third factor, the Court stated that a court should find the reasons for a
statute sound if they “satisf[y] the Constitution’s insistence that a federal statute
represent a rational means for implementing a constitutional grant of legislative
authority.” Id. at 1962.
Other jurists and commentators have also read the Comstock majority as
holding that a statute that is “rationally related” or “reasonably adapted” to an
24
No. 08-51185
enumerated power is a constitutional expression of the Necessary and Proper
Clause power. See id. at 1966 (Kennedy, J., concurring in the judgment) (“The
Court concludes that, when determining whether Congress has the authority to
enact a specific law under the Necessary and Proper Clause, we look ‘to see
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power.’” (quoting id. at 1956
(majority opinion))); United States v. Yelloweagle, — F.3d —, 2011 WL 1632095,
at *9 (10th Cir. May 2, 2011) (stating that a statute was constitutional under the
Necessary and Proper Clause because it “represent[ed] a rational means for
implementing a constitutional grant of legislative authority” (quoting Comstock,
130 S. Ct. at 1962) (internal quotation marks omitted)); United States v.
Pendleton, 636 F.3d 78, 87 (3d Cir. 2011) (stating that in light of Comstock, to
determine whether a statute is constitutional under the Necessary and Proper
Clause, “the relevant inquiry is simply whether the means chosen are reasonably
adapted to the attainment of a legitimate end under the commerce power or
under other powers that the Constitution grants Congress the authority to
implement” (quoting Comstock, 130 S. Ct. at 1957) (internal quotation marks
omitted)); United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010) (stating
that Comstock holds that to determine whether “the Necessary and Proper
Clause grants Congress the legislative authority to enact a particular federal
statute, we look to see whether the statute constitutes a means that is rationally
related to the implementation of a constitutionally enumerated power” (quoting
Comstock, 130 S. Ct. at 1956) (internal quotation marks omitted)); Al-Bihani v.
Obama, 619 F.3d 1, 25 n.11 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the
denial of rehearing en banc) (suggesting the same reading of Comstock); Mead
v. Holder, — F. Supp. 2d —, 2011 WL 611139, at *16 (D.D.C. Feb. 22, 2011)
(“Courts look to see whether the challenged statute constitutes a means that is
‘rationally related to the implementation of a constitutionally enumerated power’
25
No. 08-51185
when determining whether it falls within Congress’s power under the Necessary
and Proper Clause.” (quoting Comstock, 130 S. Ct. at 1956)); Virginia ex rel.
Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 611 (E.D. Va. 2010) (“[T]he relevant
inquiry is simply whether the means chosen are reasonably adapted to the
attainment of a legitimate end under the commerce power or under other powers
that the Constitution grants Congress the authority to implement.” (alteration
in original) (quoting Comstock, 130 S. Ct. at 1957) (internal quotation marks
omitted));8 16A Am. Jur. 2d Constitutional Law § 343 (2011) (“In determining
whether the Necessary and Proper Clause grants Congress the legislative
authority to enact a particular federal statute, the court looks to see whether the
statute constitutes a means that is rationally related to the implementation of
a constitutionally enumerated power.” (citing Comstock, 130 S. Ct. 1949)); Robert
R. Harrison, Health Care Reform in the Federal Courts, 57 Fed. Law., Sept. 2010,
at 52, 56 (“In Comstock, the Court noted that the scope of the Necessary and
Proper Clause is limited by the inquiry ‘whether the means chosen are
reasonably adapted to the attainment of a legitimate end under the commerce
power or other powers that the Constitution grants Congress the authority to
implement.’” (quoting Comstock, 130 S. Ct. at 1956-57)).9
8
See also Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010) (stating
that the second Comstock factor, history, is only a proxy to determine “the reasonableness of
the relation between the new statute and pre-existing federal interests” (quoting Comstock,
130 S. Ct. at 1952) (internal quotation marks omitted)); Massachusetts v. U.S. Dep’t of Health
& Human Servs., 698 F. Supp. 2d 234, 250 (D. Mass. 2010) (same).
9
See also 16 Am. Jur. 2d Constitutional Law § 107 (2011) (stating that the second
Comstock factor, history, is a proxy for determining “the reasonableness of the relation between
the new statute and pre-existing federal interests”); Michael C. Dorf, The Supreme Court’s
Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the
Constitutionality of the Individual Mandate to Buy Health Insurance?, Findlaw.com (May 19,
2010), http://writ.news.findlaw.com/dorf/20100519.html (“[T]he seven Justices in the
[Comstock] majority [] were fully comfortable with federal power extending to areas that are
not independently regulable, so long as regulation in those areas is reasonably related to
regulation that is within the scope of congressional power.”).
26
No. 08-51185
IV.
Accordingly, I conclude that § 2250(a)(2)(A)’s application to intra-state
violations of SORNA by sex offenders convicted under federal law is necessary
and proper to—that is, rationally related and reasonably adapted to—SORNA’s
statutory scheme, which is designed to regulate the interstate movement of sex
offenders, using Congress’s Commerce Clause power. See Carr, 130 S. Ct. at
2240 (citing 42 U.S.C. § 16901). In particular, I conclude that § 2250(a)(2)(A) is
a constitutional exercise of Congress’s Necessary and Proper Clause power
because it is rationally related and reasonably adapted to § 2250(a)’s other
subsection, § 2250(a)(2)(B), which we have already upheld as a proper exercise
of the Commerce Clause power. Whaley, 577 F.3d at 258. For these reasons, I
agree that the judgment of the district court must be affirmed.
Although I agree with the majority in affirming the judgment of the
district court, I cannot join the majority opinion because it departs from the
doctrinal framework established by the Supreme Court for analyzing Commerce
Clause legislation, such as SORNA and its provisions that are at issue in the
present case. Contrary to the clear teachings of the Supreme Court in Carr and
this court in Whaley, the majority interprets § 2250(a)(2)(A) as a stand-alone
statute that is rationally related only to a pre-existing military penal statute,
rather than as a necessary and integral part of the Commerce-Clause-based
SORNA. Majority Op. 11 (stating that § 2250(a)(2)(A) does not reflect “any
federal concern about [federal sex offenders’] impact on or relationship to the
nationwide registration scheme” that SORNA was designed to create). By trying
to justify SORNA’s § 2250(a)(2)(A) as rationally related to the military law under
which Kebodeaux was convicted and imprisoned, rather than reasonably
adapted to SORNA’s regulation of interstate commerce, which §2250(a)(2)(A)
was enacted with and made an integral part of, the majority relies upon an
altogether different legislative power that is, at best, only tangentially related
27
No. 08-51185
to SORNA’s registration requirement. Consequently, I believe that the majority
has fallen into serious error in reading Comstock to arrogate vast revisionary
powers to judges, allowing them to uphold as necessary and proper any piece of
legislation, regardless of the vehicle by which Congress enacted it, so long as the
judges can in retrospect see a rational relationship between that law and some
enumerated power.
Contrary to the majority’s assertion, United States v. George, 625 F.3d
1124 (9th Cir. 2010), provides no support for its reasoning. See Majority Op. 6-7,
14. George addressed the constitutionality of § 2250(a)(2)(A) in response to the
defendant’s claim that the provision fell “outside of Congress’s commerce clause
powers.” 625 F.3d at 1129. The panel then stated that “Congress had the power
under its broad commerce clause authority to enact the SORNA.” George, 625
F.3d at 1130.10 It explained that the Commerce Clause power includes the
authority “to make all laws that are ‘necessary and proper’ for the
accomplishment of [Congress’s] commerce clause power,” id. at 1129 (quoting
U.S. Const. art. I, § 8, cl. 18), which in turn includes regulating “intrastate
activity that has a substantial effect on interstate commerce,” id. (citing Wickard
v. Filburn, 317 U.S. 111, 125 (1942)).
The George panel further quoted Carr, 130 S. Ct. at 2238, for the
proposition that “it is entirely reasonable for Congress to have assigned to the
federal government a special role in ensuring compliance with SORNA’s
registration requirements by federal sex offenders—persons who typically would
have spent time under federal criminal supervision.” Id. at 1130. Immediately
after this, the George panel also stated: “Compare United States v. Comstock, 130
S. Ct. 1949 (2010) (upholding under the Necessary and Proper Clause a statute
10
In support of this proposition, the George panel cited Whaley, 577 F.3d at 258; Gould,
568 F.3d at 470-72; Ambert, 561 F.3d at 1210; United States v. Hinckley, 550 F.3d 926, 940
(10th Cir. 2008); and May, 535 F.3d at 921. George, 625 F.3d at 1130.
28
No. 08-51185
that provided for the civil commitment of sexually dangerous federal prisoners
beyond the date they would otherwise be released).” Id. Thus, rather than
holding that § 2250(a)(2)(A) is constitutional because it is rationally related and
reasonably adapted to a “federal interest in a federal convict”—as the majority
reads the opinion, Majority Op. 14 (citing George, 625 F.3d at 1130)—George
performed the analysis I suggest above, acknowledging that § 2250(a)(2)(A) is
part of the broader SORNA statutory scheme, whose aim is to regulate sex
offenders’ interstate movement, and upholding § 2250(a)(2)(A) as a necessary
and proper extension of that scheme. In doing so, it relied on the reasoning of
Comstock, in which a majority of the Justices approved Justice Scalia’s
Commerce Clause analysis in Raich. See also United States v. Ross, — F. Supp.
2d —, 2011 WL 1481394, at *13 (D.D.C. Apr. 19, 2011) (citing George, 625 F.3d
at 1130, in support of the statement that “[t]he Court agrees with ‘every circuit
that has examined the issue in concluding that § 2250 is a legitimate exercise of
congressional Commerce Clause authority.’” (alteration omitted) (quoting United
States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010)); United States v. Cotton, 760
F. Supp. 2d 116, 139-40 (D.D.C. 2011) (same).
What is more, the Tenth Circuit has now upheld § 2250(a)(2)(A) as
constitutional on the same ground that I urged in my previous concurring
opinion. United States v. Yelloweagle, — F.3d —, 2011 WL 1632095 (10th Cir.
May 2, 2011). In that case, Yelloweagle “was previously convicted of a federal sex
offense,” “failed to register as required [by SORNA], [and] was indicted by
federal authorities under the [SORNA] enforcement provision,” § 2250(a)(2)(A).
Yelloweagle, 2011 WL 1632095, at *1. On appeal, “Yelloweagle contended that
[§ 2250(a)(2)(A)] lacked a jurisdictional basis and therefore was
unconstitutional.” Id. Citing and quoting that Kebodeaux concurring opinion, the
Tenth Circuit concluded that § 2250(a)(2)(A) was constitutional because it was
necessary and proper to facilitate SORNA’s constitutional regulation of sex
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No. 08-51185
offenders’ interstate movement, which was authorized by Congress’s power
under the Commerce Clause. Id. at *12 (also quoting United States v. Kebodeaux,
634 F.3d 293, 301 (5th Cir. 2011) (Dennis, J. concurring in the judgment), for the
proposition “that § 2250(a)(2)(A) is ‘a necessary and integral part of the
commerce-clause-based SORNA’”).
The Tenth Circuit in Yelloweagle reached this conclusion by first surveying
“The Sex Offender Registration and Enforcement Regime.” Id. at *1. As a result,
it recognized that SORNA was enacted as a comprehensive statutory scheme “to
keep track of sex offenders” who move interstate. Id. at *2 (quoting George, 625
F.3d at 1129) (internal quotation marks omitted).11 Accordingly, the Yelloweagle
court concluded that while the defendant focused his challenge narrowly on one
of SORNA’s provisions, § 2250(a)(2)(A), it was not proper for the panel to analyze
the provision as if it were a stand-alone statute. Id. at *12. Instead, the court
held that § 2250(a)(2)(A) was constitutional as part of SORNA’s statutory
scheme. Id. Therefore, the court explained that it was key that Yelloweagle had
“waived his challenge to § 16913,” allowing the panel to presume that § 16913
was a valid exercise of the Commerce Clause power. Id. at *9, *11.12
The Tenth Circuit panel then concluded that “the Necessary and Proper
Clause Gives Congress the Authority to Enact § 2250(a)(2)(A).” Id. at *10. “As
the Supreme Court recently stated: ‘[I]n determining whether the Necessary and
Proper Clause grants Congress the legislative authority to enact a particular
11
Further supporting my view that George upheld § 2250(a)(2)(A) as necessary and
proper to effectuate the exercise of Congress’s Commerce Clause power, the Tenth Circuit not
only relied on George for its holding, but also never suggested that George could be read as
supporting any other analysis, nor that the Tenth Circuit’s reasoning had split it from the
Ninth Circuit.
12
Yelloweagle’s assumption that § 16913 is constitutional under the Commerce Clause
is consistent with the affirmative holding of this court in Whaley that § 16913 is a
constitutional exercise of the necessary and proper power to effectuate the Commerce Clause
power, and that § 2250(a)(2)(B) is a constitutional exercise of the Commerce Clause power.
Whaley, 577 F.3d at 258-61.
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No. 08-51185
federal statute, we look to see whether the statute constitutes a means that is
rationally related to the implementation of a constitutionally enumerated
power.’” Id. at *9 (alteration in original) (quoting Comstock, 130 S. Ct. at 1956).
“[W]e have before the court an undisputedly valid exercise of Congress’s
Commerce Clause power—viz., the sex offender registration scheme of § 16913.”
Id. at *12. Therefore, “[i]t seems beyond peradventure that the criminal
enforcement provision of § 2250(a)(2)(A) is ‘rationally related or reasonably
adapted to the effectuation’ of the sex offender registration regime of § 16913.”
Id. (quoting Kebodeaux, 634 F.3d at 297 (majority opinion) (in turn citing
Comstock, 130 S. Ct. at 1956)). “Section 2250(a)(2)(A) ‘clearly was not enacted as
a stand-alone provision, but rather as a complement to [SORNA’s] other
provisions.’” Id. (alteration in original) (quoting Kebodeaux, 634 F.3d at 301
(Dennis, J., concurring in the judgment)). “[I]n a concurring opinion in
Kebodeaux, Judge Dennis highlighted the relationship between § 2250(a)(2)(A)
and the registration regime of § 16913 . . . . ‘Section 2250(a)(2)(A) helps to make
SORNA’s regulation of interstate commerce effective by obviating potential
sources of interference or disruption of that objective. For example, had Congress
not criminalized federal sex offenders’ undocumented, intra-state residence
changes, there would [be] no deterrence to their moving intra-state without
reregistering. This would have caused disparate and delayed enforcement of
SORNA against federal sex offenders, allowing them to establish residences in
some states as apparent law abiders, which would have made them difficult to
monitor either in-state or in interstate commerce.’” Id. at *12-13 (third alteration
in original) (quoting Kebodeaux, 634 F.3d at 299 (Dennis, J., concurring in the
judgment)). Therefore, the Tenth Circuit panel stated, “we conclude that
Congress has the authority under the Necessary and Proper Clause to enact
§ 2250(a)(2)(A) in order to criminally enforce its validly enacted registration
provision, § 16913.” Id. at *13.
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* * *
Consistent with the Supreme Court and Circuit authority cited above, and
unlike the majority, I would not treat § 2250(a)(2)(A) as a stand-alone statute.
Instead, I believe we must analyze whether it is constitutional as part of
SORNA’s statutory scheme. Because (1) the Supreme Court and circuit courts
have consistently explained that SORNA’s statutory scheme is intended to
regulate the interstate movement of sex offenders, and thus was passed
pursuant to Congress’s Commerce Clause power; (2) Comstock teaches that a
majority of the Supreme Court has now approved and adopted Justice Scalia’s
Commerce Clause analysis in Raich; and (3) § 2250(a)(2)(A) clearly facilitates
SORNA’s regulation of sex offenders’ interstate movement, because it is
rationally related and reasonably adapted to preventing sex offenders from
“slipping through the cracks” of state-based registration schemes, I would uphold
§ 2250(a)(2)(A) as a necessary and proper extension of Congress’s Commerce
Clause power to enact SORNA’s other provisions, particularly § 2250(a)(2)(B).
Doing so would be consistent with every other circuit that has considered the
issue.
For these reasons, I concur only in the judgment upholding the
constitutionality of § 2250(a)(2)(A) and affirming Kebodeaux’s conviction and
sentence.
32