United States v. Adam Fernandez , 710 F.3d 847 ( 2013 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 12-2767
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Adam Ray Fernandez
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 12-2774
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Jonathon Patrick Curry
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 12-2784
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    William Earl Mefford
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 12-2787
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Terrent Allen Chronister
    lllllllllllllllllllll Defendant - Appellant
    ___________________________
    No. 12-3358
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    John Sharp
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - Harrison
    ____________
    Submitted: March 11, 2013
    Filed: April 1, 2013
    [Published]
    ____________
    Before MURPHY, SMITH, and GRUENDER, Circuit Judges.
    ____________
    PER CURIAM.
    In these consolidated appeals from the Western District of Arkansas the
    appellants all challenge the constitutionality of a provision of the Sex Offender
    Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq, under which
    they were convicted. Appellants argue that SORNA violates the nondelegation
    doctrine of the United States Constitution by giving the Attorney General authority
    to determine its applicability to sex offenders convicted before the statute's
    enactment. The district courts1 upheld the constitutionality of the Act. The
    defendants appeal, and we affirm.
    SORNA requires persons convicted of sex crimes to register and update
    information about their whereabouts, employment, and other personal information.
    For persons whose convictions predate the passage of SORNA, the Act specifies that
    the “Attorney General shall have the authority to specify the applicability of the
    requirements of this subchapter.” 42 U.S.C. § 16913(d). Although SORNA was
    passed in 2006, the Attorney General did not explicitly apply its registration
    1
    The Honorable Judge Robert Dawson, United States District Judge for the
    Western District of Arkansas, and the Honorable Judge Jimm Larry Hendren, United
    States District Judge for the Western District of Arkansas.
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    requirements to preenactment offenders until 2007. This resulted in conflicting
    decisions by the courts as to whether the Act applied to preenactment offenders from
    the date of its enactment in 2006 or only after the Attorney General’s decision in
    2007. This court had decided that the Act applied to SORNA offenders from the date
    of its enactment. United States v. May, 
    535 F.3d 912
    , 919 (8th Cir. 2008).
    Subsequently the Supreme Court ruled to the contrary, holding that SORNA did not
    apply to preenactment offenders until such time as the Attorney General “validly
    specifies that the Act's registration provisions apply to them,” which he did not do
    until 2007. Reynolds v. United States, 
    132 S. Ct. 975
    , 980 (2012).
    Appellants have been convicted of failing to register under SORNA; their
    original sex offenses all predated the statute's enactment. They argue that the
    § 16913(d) grant of power to the Attorney General to determine the law's applicability
    to preenactment offenders violated the nondelegation doctrine of the United States
    Constitution. Prior to Reynolds, we had rejected this argument because we
    understood SORNA's registration requirements to apply to such offenders even
    without any action by the Attorney General. Appellants lacked standing at that time
    to raise the question now before the court. 
    May, 535 F.3d at 921
    . After Reynolds
    was decided, the Supreme Court remanded several similar cases for our court to
    consider on the merits. We in turn remanded them to the district courts in which their
    cases originated. The presiding district courts rejected the nondelegation challenges,
    and the defendants appeal.
    We review constitutional challenges de novo. United States v. Howell, 
    505 F.3d 960
    , 963 (8th Cir. 2010). The nondelegation doctrine arises from Article I,
    section I of the Constitution, which vests Congress with all legislative powers. This
    has been interpreted by the Supreme Court to mean that Congress cannot “transfer”
    or “delegate” its authority to enact legislation to another branch. See Panama Ref.
    Co. v. Ryan, 
    293 U.S. 388
    , 421 (1935). Congress can nevertheless delegate authority
    to the executive branch to implement enacted legislation, see U.S. Const. Art. II, § 3,
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    if it provides an “intelligible principle” to the delegee. Mistretta v. United States, 
    488 U.S. 361
    , 372 (1989). So long as Congress “clearly delineates the general policy, the
    public agency which is to apply it, and the boundaries of the delegated authority,” it
    has provided an “intelligible principle.” Am. Power & Light Co. v. Sec. & Exch.
    Comm’n, 
    329 U.S. 90
    , 105 (1946).
    The Supreme Court has upheld delegations when the "intelligible principle"
    guiding the administrator was to set "fair and equitable" prices, Yakus v. United
    States, 
    321 U.S. 414
    , 426 (1944), and when the FCC regulates broadcast licenses "as
    public interest, convenience, or necessity" require, Nat’l Broad. Co. v. United States,
    
    319 U.S. 190
    , 225–226 (1943). Indeed, with the exception of two cases in 1935,
    Panama Ref. 
    Co., 293 U.S. at 388
    , A.L.A. Schechter Poultry Corp. v. United States,
    
    295 U.S. 495
    (1935), the Supreme Court has uniformly rejected every nondelegation
    challenge it has considered. See 
    Mistretta, 488 U.S. at 373
    .
    This court recently considered and rejected an identical challenge to SORNA
    in United States v. Kuehl, 
    2013 U.S. App. LEXIS 3373
    (8th Cir. February 19, 2013).
    We concluded that SORNA’s broad policy statement that it was designed “to protect
    the public from sex offenders and offenders against children” was “sufficient to
    provide an intelligible principle for delegation.” 
    Id. at *5–6 (citing
    42 U.S.C.
    § 16901). This guiding principle compares favorably to other policy statements
    which the Court has previously upheld as providing “intelligible principles.” See,
    e.g., Nat’l Broad. 
    Co., 319 U.S. at 226
    . We also observed in Kuehl that SORNA’s
    delegation is relatively narrow, only permitting the Attorney General to determine
    whether SORNA’s requirements apply to offenders whose convictions predate its
    enactment. This is a considerably more limited and narrow question than, for
    example, Congress’ decision to allow the United States Sentencing Commission to
    create federal sentencing guidelines. See Kuehl, 2013 U.S. App. at *6–7; 
    Mistretta, 488 U.S. at 374–79
    .
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    SORNA’s relatively narrow delegation of authority to the Attorney General is
    guided by an intelligible principle and is consistent with the requirements of the
    nondelegation doctrine. Moreover, we remain bound by our earlier decision in Kuehl.
    We thus affirm the district court decisions under review here.
    ______________________________
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