US v. Steven Stewart

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 6:10-cr-00015-nkm-1 Copies to all parties and the district court/agency. [998766985].. [11-4420, 11-4471]

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Date Filed: 01/18/2012

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4420

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN RAY STEWART,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Lynchburg.
Norman K. Moon, Senior
District Judge. (6:10-cr-00015-nkm-1)

No. 11-4471

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STANLEY H. CARLSON, a/k/a Stanley Harold Carlson,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:10-cr-00027-gec-bwc-1)

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Submitted:

Date Filed: 01/18/2012

December 7, 2011

Page: 2 of 7

Decided:

January 18, 2012

Before NIEMEYER, KEENAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Allegra M.C. Black,
Andrea
Lantz
Harris,
Assistant
Federal
Public
Defenders,
Christine Madeleine Lee, Research and Writing Attorney, Roanoke,
Virginia, for Appellants.
Timothy J. Heaphy, United States
Attorney, Anthony P. Giorno, First Assistant United States
Attorney, Roanoke, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

these

consolidated

appeals,

Steven

Ray

Stewart

appeals his conviction and thirty-month sentence following his
guilty plea to one count of traveling in interstate commerce and
failing to register or update a registration, as required by the
Sex Offender Registration and Notification Act (“SORNA” or “the
Act”), in violation of 18 U.S.C. § 2250(a) (2006), and Stanley
H.

Carlson

sentence

appeals

following

his
his

conviction
guilty

plea

and
to

twenty-seven-month
the

same

offense.

Appellants argue that the relevant provisions of the SORNA that
required

them

to

register

as

sex

offenders,

see

§ 16913 (West Supp. 2011), are unconstitutional.
raises a separate venue challenge.
Appellants

argue

that

42

U.S.C.A.

Stewart also

We affirm.
the

district

court

erred

in

denying their motions to dismiss the indictments against them.
They contend that, in enacting the SORNA, Congress violated the
non-delegation doctrine by impermissibly delegating legislative
functions to the Attorney General; namely, the discretion to
determine

whether

the

SORNA’s

registration

requirements

would

apply to sex offenders convicted prior to the Act’s enactment.
We review de novo the district court’s denial of a motion to
dismiss an indictment.
310

(4th

Cir.

2002).

United States v. Brandon, 298 F.3d 307,
Additionally,

3

properly

preserved

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constitutional claims are reviewed de novo.

United States v.

Hall, 551 F.3d 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

1202, 1212 (11th Cir. 2009).
to

another

delegation

branch
doctrine

of
as

v.

Ambert,

561

F.3d

Congress’ delegation of authority

government
long

States

as

does

not

Congress

offend

has

the

delineated

nonan

“intelligible principle” guiding the exercise of that authority.
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 [that]
is

to

apply

authority.”

it,

and

the

boundaries

of

th[e]

delegated

Mistretta v. United States, 488 U.S. 361, 372-73

(1989) (internal quotation marks omitted).
Appellants contend there is no intelligible principle
guiding the Attorney General in his discretion.

We agree with

the other courts of appeal that have considered this issue in
concluding that this claim is without merit.

See, e.g., United

States v. Guzman, 591 F.3d 83, 93 (2d Cir.) (concluding that the
Attorney General’s delegated authority is “highly circumscribed”
because the SORNA “includes specific provisions delineating what
crimes require registration; where, when, and how an offender
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must register; what information is required of registrants; and
the elements and penalties for the federal crime of failure to
register”

(internal

citations

omitted)),

cert.

denied,

130

S. Ct. 3487 (2010); United States v. Whaley, 577 F.3d 254, 264
(5th Cir. 2009) (holding that the SORNA’s statement of purpose
in 42 U.S.C.A. § 16901 is a guiding intelligible principle);
Ambert, 561 F.3d at 1213-14 (describing the SORNA’s broad policy
goals as intelligible principles).
Further,

we

reject

Appellants’

argument

that

our

decision in United States v. Hatcher, 560 F.3d 222 (4th Cir.
2009), compels a contrary conclusion.

Contrary to Appellants’

argument, nothing in the Hatcher decision calls into question
the constitutionality of Congress’ delegation of authority to
the Attorney General under the SORNA.
that

Appellants’

non-delegation

doctrine

We therefore conclude
argument

is

without

merit.
Stewart also argues that the district court erred in
denying his motion to dismiss the indictment because the Western
District of Virginia was the improper venue for his prosecution.
We review the district court’s determination on venue de novo.
United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001).
Venue lies in the state and in the district where the
offense at issue was “committed.”
cl. 3; Fed. R. Crim. P. 18.

U.S. Const. art. III, § 2,

A determination of where an offense
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is “committed” is to be made with reference to the criminal act
proscribed by the statute.

Johnston v. United States, 351 U.S.

215,

statute

220

(1956).

If

the

does

not

provide

explicit

guidance, the location of the offense for venue purposes “must
be

determined

from

the

nature

of

the

crime

alleged

location of the act or acts constituting it.”

and

the

United States v.

Anderson, 328 U.S. 699, 703 (1946).
Stewart’s violation of § 2250(a) necessarily involved
more

than

one

district

because

he

traveled

interstate

Virginia to Kentucky, where he failed to register.
situation,

venue

is

governed

by

18 U.S.C.

from

In such a

§ 3237(a)

(2006),

which states that “any offense against the United States begun
in one district and completed in another, or committed in more
than one district, may be inquired of and prosecuted in any
district

in

completed.”
move

from

Kentucky,

where

when

such

offense

was

begun,

continued,

or

Stewart’s offense began in Virginia because his
that

register.
began

which

state
his

gave

rise

offense

to

was

moved

from

the

duty

completed

42 U.S.C.A. § 16913(c).
he

his

to

when

register
he

failed

in
to

Because Stewart’s offense

Western

District

of

Virginia,

thereafter failing to register in Kentucky, venue was proper in
the Western District of Virginia.

See, e.g., United States v.

Howell, 552 F.3d 709, 717–18 (8th Cir. 2009) (holding that venue
for a failure-to-register prosecution was proper in the Northern
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District of Iowa, from which the defendant moved to Texas where
he failed to register).

Accordingly, Stewart’s venue argument

is without merit.
We
court.
legal
before

therefore

affirm

the

judgments

of

the

district

We dispense with oral argument because the facts and
contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.
AFFIRMED

7