US v. Frank Roger

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:09-cr-00227-TLW-1 Copies to all parties and the district court/agency. [998803327].. [10-5099]

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Date Filed: 03/06/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5099

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK COSTA ROGERS,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Florence.
Terry L. Wooten, District Judge.
(4:09-cr-00227-TLW-1)

Argued:

January 27, 2012

Decided:

March 6, 2012

Before GREGORY, DAVIS, and DIAZ, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.

ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Susan Zalkin
Hitt, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Frank Costa Rogers appeals his conviction and twenty-one
month sentence on one count of traveling in interstate commerce
while failing to register as a sex offender in violation of 18
U.S.C. § 2250(a). He argues that certain provisions of the Sex
Offender Registration and Notification Act (“SORNA”), 42 U.S.C.
§ 16901 et seq., are unconstitutional, and that the district
court abused its discretion when it imposed certain conditions
of supervised release. We reject his constitutional challenge to
SORNA

but

we

find

merit,

in

part,

in

his

challenge

to

the

imposition of two conditions of supervised release. Accordingly,
we affirm in part and vacate and remand in part.

I.
Rogers
denying

first

his

contends

motion

to

that

dismiss

the
the

district

court

indictment.

erred
He

in

raises

challenges to the application of SORNA based on the Ex Post
Facto

Clause,

delegation

the

doctrine,

Commerce
and

Clause,

the

due

process,

Administrative

the

Procedure

nonAct

(“APA”), specifically 5 U.S.C. § 553. We review the denial of a
motion to dismiss the indictment where the denial depends solely
on questions of law de novo. United States v. Hatcher, 560 F.3d
222, 224 (4th Cir. 2009).

2

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We note, as Rogers concedes, that we have, in published
authority, rejected virtually identical Ex Post Facto, Commerce
Clause, due process, and APA challenges to SORNA. See United
States v. Gould, 568 F.3d 459 (4th Cir. 2009), cert. denied, 130
S. Ct. 1686 (2010). “[A] panel of this court cannot overrule,
explicitly or implicitly, the precedent set by a prior panel of
this court. Only the Supreme Court or this court sitting en banc
can do that.” Scotts Co. v. United Indus. Corp., 315 F.3d 264,
271

n.2

(4th

Cir.

2002)

(internal

quotation

marks

omitted).

Accordingly, we conclude that Rogers’s Ex Post Facto, Commerce
Clause, due process, and APA challenges to SORNA lack merit.
We briefly consider Rogers’s remaining challenge, that in
enacting SORNA, Congress violated the non-delegation doctrine by
impermissibly delegating legislative functions to the Attorney
General,

namely,

the

discretion

to

determine

whether

SORNA’s

registration requirements would apply to sex offenders convicted
prior to SORNA’s enactment. Gould did not address this issue,
although
concluded

this

court

that

has,

Congress

in

two

did

non-precedential
not

impermissibly

decisions,
delegate

legislative authority to the Executive Branch. See United States
v. Stewart, Nos. 11-4420 & 11-4471, 2012 WL 130746, at *1 (4th
Cir. Jan. 18, 2012) (unpublished); United States v. Burns, 418
F. App’x 209, 211-12 (4th Cir. 2011) (unpublished).

3

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“We
claim.”

review
United

Date Filed: 03/06/2012

de

novo

States

v.

a

properly

Hall,

551

Page: 4 of 10

preserved
F.3d

constitutional

257,

266

(4th

Cir.

2009). The non-delegation doctrine “is based on the principle of
preserving

the

separation

of

powers

between

the

coordinate

branches of government.” United States v. Ambert, 561 F.3d 1202,
1212

(11th

Cir.

2009).

While

Congress

may

delegate

some

functions to the Executive Branch, the Supreme Court has held
that where Congress has delineated an “intelligible principle”
guiding

the

exercise

of

that

authority,

the

non-delegation

doctrine is not offended. See J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928). Even a general legislative
directive

is

a

constitutionally

sufficient

intelligible

principle “if Congress clearly delineates the general policy,
the public agency which is to apply it, and the boundaries of
this delegated authority.” Mistretta v. United States, 488 U.S.
361, 372–73 (1989) (internal quotation marks omitted).
Rogers argues that there is no “intelligible principle” to
guide the Attorney General in the exercise of his discretion to
promulgate rules or otherwise to administer the application of
SORNA. This claim is without merit. We are satisfied that the
persuasive

reasoning

of

the

panels

in

Burns

and

Stewart,

although those decisions are not controlling, fully disposes of
the claim here. We agree with the views of the panels in Burns
and Stewart, noting Congress’s statement that SORNA’s purpose is
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“‘to protect the public from sex offenders and offenders against
children’

through

‘a

comprehensive

national

system

for

the

registration of those sex offenders.’” Burns, 418 F. App’x at
211 (quoting 42 U.S.C. § 16901). The Attorney General’s exercise
of discretion is adequately cabined by this clear statement of
purpose. Accord United States v. Guzman, 591 F.3d 83, 93 (2d
Cir.)

(concluding

authority
specific

is

that

“highly

the

Attorney

circumscribed”

provisions

General’s

because

delineating

what

delegated

SORNA

“includes

crimes

require

registration; where, when, and how an offender must register;
what information is required of registrants; and the elements
and penalties for the federal crime of failure to register”)
(citations
United

omitted),

States

v.

(same); Ambert,
United

States,

cert.

Whaley,

561
No.

F.3d

denied,
577

F.3d

at

10-6549,

130

S.

254,

264

Ct.

3487

(5th

(2010);

Cir.

2009)

1213–14

(same);

cf.

Reynolds

2012

171120,

---

S.

WL

Ct.

v.
---

(U.S. Jan. 23, 2012) (assuming validity of Attorney General’s
promulgation of rules under SORNA).

II.
Next,

Rogers

claims

that

the

district

court

abused

its

discretion when it imposed the following improper conditions of
supervised release: ordering him to submit to substance abuse,
mental health, and sex offender treatment programs (the latter
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coupled

with

Date Filed: 03/06/2012

random

polygraph

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examinations).

“District

courts

have broad latitude to impose conditions on supervised release,
and so we review such conditions only for abuse of discretion.”
United

States

(internal

v.

Armel,

quotation

marks

585

F.3d

182,

omitted).

186

The

(4th

Cir.

sentencing

2009)

court

may

impose any condition that is reasonably related to the relevant
statutory

sentencing

factors,

which

include:

“the

nature

and

circumstances of the offense and the history and characteristics
of the defendant,” 18 U.S.C. § 3553(a)(1); providing “adequate
deterrence,” id. § 3553(a)(2)(B); “protect[ing] the public from
further

crimes,”

defendant

with

id.

§

training,

3553(a)(2)(C);
medical

care,

and
or

providing

treatment,

the

id.

§

3553(a)(2)(D). Armel, 585 F.3d at 186.
The sentencing court must also ensure that the condition
“involves no greater deprivation of liberty than is reasonably
necessary”

to

afford

adequate

deterrence,

protect

the

public

from further crimes, and to provide the defendant with training,
care

or

treatment.

18

U.S.C.

§

3583(d)(2);

United

States

v.

Dotson, 324 F.3d 256, 260-61 (4th Cir. 2003). The conditions
must

also

statements.

be

consistent

18

U.S.C.

§

with

Sentencing

3583(d)(3).

A

Commission

particular

policy

restriction

does not require an “offense-specific nexus,” United States v.
Perazza-Mercado,

553

F.3d

65,

70

(1st

Cir.

2009),

but

the

sentencing court must adequately explain its decision and its
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reasons for imposing the chosen conditions, Armel, 585 F.3d at
186.
Guided by the above principles, our review of the record
leads

us

to

discretion

conclude

in

its

release

Rogers’s

program

(and

that

the

imposition

as

participation

the

related

district
a

in

a

court

condition
sex

requirement

abused

of

its

supervised

offender

treatment

random

polygraph

of

examinations). Here, the district court simply ordered in the
Judgment Order that, “The defendant shall participate in a sex
offender

treatment

Office,”

and

program,

that,

“The

approved

defendant

by

the

shall

U.S.

submit

Probation
to

random

polygraphs conducted by any person deemed appropriate by the
U.S.

Probation

Office

as

a

treatment

tool

to

be

used

in

conjunction with his sex offender treatment program.” J.A. 192.
Although

the

presentence

investigation

report

indicated

that Rogers’s 1989 criminal sexual conduct conviction arose out
of the forcible rape of an adult female, there was no evidence
before

the

district

court

that

such

an

act

of

violence

has

characterized Rogers’s offense behaviors in the many years since
he was released from incarceration. Nor did the government argue
that such a condition was appropriate in the circumstances of
this case. The district court failed even to order that Rogers
first be professionally evaluated for the purpose of obtaining a
reliable

expert

opinion

whether
7

participation

in

a

treatment

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program for sexual offenders actually comported with the needs
of society or of Rogers himself. See United States v. Smith, 655
F.3d 839, 844, 847 (8th Cir. 2011) (sustaining imposition of
condition
register

requiring
to

defendant

“undergo

a

sex

convicted

solely

offense-specific

of

failure

evaluation

to
and

participate in a sex offender treatment and/or mental health
treatment program approved by the U.S. Probation Officer,” while
observing

that

passage

of

underlying

sex

offense

“might

condition,”

and

ultimately

twelve

years

not

concluding

by

since
itself

that

defendant’s
support

propriety

the

of

the

condition was “a close question”) (emphasis added). This failure
is in keeping with the court’s conclusory observation that “the
sex

offender

treatment

will

be

commensurate

with

what

[is]

appropriate in light of [this] defendant’s record,” J.A. 233,
which is an inadequate basis on which to rest the condition it
imposed.
Even in light of the broad discretion afforded district
courts in their imposition of supervised release conditions, we
fail to see how a practice such as that followed here comports
with

the

necessity

of

reasonableness

in

the

imposition

of

conditions of release. *

*

Rogers separately challenges the requirement that he
submit to polygraph exams. It is apparent that the district
court coupled this requirement with the requirement that Rogers
(Continued)
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We

are

ground

as

conditions.

Date Filed: 03/06/2012

persuaded
to

its

The

that

the

conviction

for

a

conclusion

that

mental

court

of

pointed

(including

district

imposition

court

Page: 9 of 10

remaining

to

Rogers’s

armed

health

the

prior

robbery)

treatment

was

to

on

firmer

challenged
convictions
its

appropriate.

is

support

The

district court relied on U.S. Sentencing Guidelines Manual §
5D1.3(D)(5), which states that “[i]f the court has reason to
believe

that

the

defendant

is

in

need

of

psychological

or

psychiatric treatment” then mental health treatment should be a
condition of supervised release. The court noted the age of the
prior

convictions,

but

stated

that

“if

[Rogers]

made

improvements in connection with those convictions, then those
who are experts can address that and determine what would be
appropriate

for

mental

health

treatment,

in

light

of

those

conditions on the record.” J.A. 236. We were advised by counsel
at

oral

argument

that

Rogers’s

objection

to

mental

health

participate in a sex offender treatment program. We specifically
addressed the use of polygraph examinations as a condition of
supervised release in Dotson, and upheld the use of polygraph
testing as a condition of supervised release, observing that the
testing was to be used “as a potential treatment tool upon
Dotson’s release from prison,” and not to “gather[] evidence to
inculpate or exculpate Dotson.” 324 F.3d at 261. Nonetheless,
because we conclude that the blanket imposition of a sex
offender treatment program in the circumstances here constitutes
an abuse of discretion, we similarly strike the “random
polygraph” requirement.

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treatment is less than intense and that he has adjusted well to
supervision.

Given

the

district

court’s

broad

discretion,

we

decline to conclude that the court erred in this regard.
Finally, Rogers suggests that there are “less restrictive”
options for drug testing that the court should have considered.
Appellant’s

Br.

40.

He

does

not

elaborate

as

to

what

those

options are, or why it was an abuse of the district court’s wide
latitude to decline to employ them. Therefore, we discern no
abuse of discretion as to the drug testing requirement.

III.
For the reasons set forth, we affirm the conviction and so
much

of

the

judgment

as

imposed

as

special

conditions

of

supervised release participation in a mental health and a drug
treatment program. We conclude, however, that the district court
abused its discretion in its singular reliance on a decades old
sexual assault conviction to order as a special condition of
supervised release that Rogers participate in a sex offender
treatment

program

(and

the

related

requirement

of

random

polygraphs). As to the latter, we vacate the judgment and remand
for the entry of a modified judgment striking those conditions
of supervised release.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART

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