USA v. Gregory Crosby

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, VANASKIE and SHWARTZ, Circuit Judges. Total Pages: 5. Judge: VANASKIE Authoring.

Case: 13-3225

Document: 003111639886

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Date Filed: 06/05/2014

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3225
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UNITED STATES OF AMERICA
v.
GREGORY LAMONT CROSBY,
Appellant
__________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Crim. No. 1-12-cr-00044-001)
District Judge: Honorable Sean J. McLaughlin
__________________________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 14, 2014
Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges
(Opinion Filed: June 05, 2014)
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OPINION
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VANASKIE, Circuit Judge.
Appellant Gregory Lamont Crosby (“Crosby”) entered a conditional plea of guilty
to failing to register as a sex offender, in violation of the Sex Offender Registration and
Notification Act (“SORNA”), Pub. L. No. 109-248, 120 Stat. 587, 590–611 (2006)
(codified primarily at 18 U.S.C. § 2250(a) & 42 U.S.C. §§ 16901–16962). Under the

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terms of the plea, Crosby reserved the right to appeal the District Court’s denial of his
motion to dismiss, which was predicated on the theory that § 113(d) of SORNA, 42
U.S.C. § 16913(d), violates the nondelegation doctrine. Because that argument is
foreclosed by our recent opinion in United States v. Cooper, No. 13-2324, 2014 WL
1386816, at *1 (3d Cir. Apr. 10, 2014), we will affirm the District Court’s denial of
Crosby’s motion.
I.
The facts essential to our decision can be briefly stated. In 2002, in the State of
New York, Crosby was convicted of attempted rape in the first degree. (PSR ¶ 30.)
Although this conviction preceded the enactment of SORNA in 2006, later administrative
rules promulgated by the Attorney General applied SORNA’s requirements to
individuals, such as Crosby, whose qualifying sex-offense convictions predated the
statute. See Applicability of the Sex Offender Registration and Notification Act, 75 Fed.
Reg. 81849-01 (Dec. 29, 2010).
In July 2008, New York authorities learned that Crosby no longer resided at the
address he had provided to them. (PSR ¶ 31.) In November 2008, police arrested Crosby
in Pennsylvania, where he was then residing. (Id.) Crosby, who had failed to re-register
as a sex offender in Pennsylvania at any point between 2002 and the date of that arrest,
was indicted by a federal grand jury for failure to register as a sex offender under
SORNA. He pleaded guilty to that crime in September 2009, and was sentenced to a
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term of incarceration followed by a period of supervised release. The validity of that
conviction is not at issue here.
In June 2011, Crosby was released to federal supervision in New York. In May
2012, law enforcement learned that Crosby had again moved out of New York without
obtaining permission from supervision or re-registering as a sex offender. (PSR ¶ 7–8.)
On May 25, 2012, Crosby was arrested on an outstanding warrant in Erie, Pennsylvania,
where he had been living since April 2012 with various friends and relatives. (PSR ¶ 8.)
On August 21, 2012, a federal grand jury again indicted Crosby on one count of
failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). Crosby filed a
motion to dismiss the indictment, which the District Court denied in an order filed
January 8, 2013. On February 1, 2013, Crosby entered a conditional plea of guilty to the
indictment. On July 1, 2013, the District Court imposed a sentence of 21 months’
imprisonment, 10 years of supervised release, and a $100 special assessment. Crosby
filed a timely notice of appeal.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291. We exercise plenary review over a challenge to the
constitutionality of a statute. United States v. Pendleton, 636 F.3d 78, 82 (3d Cir. 2011).
III.

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Crosby’s sole argument on appeal is that § 113(d) of SORNA1 violates the nondelegation doctrine, which requires Congress to provide, at a minimum, an “intelligible
principle” to guide the Attorney General in the exercise of delegated rulemaking
authority. Touby v. United States, 500 U.S. 160, 165 (1991) (quoting J.W. Hampton, Jr.
& Co. v. United States, 276 U.S. 394, 409 (1928)). Like our sister circuits which have
considered the issue, we have squarely rejected this argument. See United States v.
Cooper, No. 13-2324, 2014 WL 1386816, at *1, *9 n.6 (3d Cir. Apr. 10, 2014) (citing
United States v. Goodwin, 717 F.3d 511, 516–17 (7th Cir.), cert. denied, __ U.S. __, 134
S. Ct. 334 (2013); United States v. Kuehl, 706 F.3d 917, 919–20 (8th Cir. 2013); United
States v. Parks, 698 F.3d 1, 7–8 (1st Cir. 2012), cert. denied, __ U.S. __, 133 S. Ct. 2021
(2013); United States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012); United States v. Rogers,
468 F. App’x 359, 362 (4th Cir. 2012) (not precedential); United States v. Guzman, 591
F.3d 83, 92–93 (2d Cir.), cert. denied, 130 S. Ct. 3487 (2010); United States v. Whaley,
577 F.3d 254, 263–64 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1213–14
(11th Cir. 2009)).
Crosby agrees that the Cooper case, which we had not yet decided at the time this
case was briefed, presented the same non-delegation challenge he advances here.

1

That provision states: “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] . . . .” 42 U.S.C. § 16913(d).
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Appellant’s Br. at 3. Because we rejected that challenge in Cooper, we will affirm the
District Court’s order denying Crosby’s motion to dismiss and affirm his conviction.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment entered on
July 1, 2013.

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