US v. Joe Clark, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:10-cr-00182-RGD-TEM-1 Copies to all parties and the district court/agency. [998872969].. [11-5098]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-5098

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOE BOB CLARK, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:10-cr-00182-RGD-TEM-1)

Submitted:

June 1, 2012

Before WILKINSON and
Senior Circuit Judge.

THACKER,

Decided:

Circuit

Judges,

June 12, 2012

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Michael S. Nachmanoff, Federal Public Defender, Walter B.
Dalton, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant.
Neil H. MacBride, United States Attorney,
Elizabeth M. Yusi, Assistant United States Attorney, Norfolk,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Joe Bob Clark, Jr., appeals his conviction and thirtymonth

sentence

traveling
update

in

a

following

interstate

his

guilty

commerce

registration,

as

and

plea

to

failing

required

by

one
to

the

count

of

register

or

Sex

Offender

Registration and Notification Act (“SORNA” or “the Act”), in
violation of 18 U.S.C. § 2250(a) (2006).
enacting
doctrine
the

SORNA,
by

Congress

impermissibly

Attorney

General,

(1)

Clark argues that, in

violated

delegating

namely,

the

the

non-delegation

legislative

functions

discretion

to

to

determine

whether SORNA’s registration requirements should apply to sex
offenders

like

Clark,

who

were

convicted

prior

to

the

Act’s

enactment; and (2) exceeded its authority under the Commerce
Clause.

Clark further argues that the retroactive application

of SORNA to a pre-enactment offender violates the Ex Post Facto
Clause.

For the reasons that follow, we reject these arguments

and affirm.
Prior

to

entering

a

conditional

guilty

plea,

Clark

moved to dismiss the indictment against him, raising the same
constitutional claims pressed on appeal.
denied

the

motion.

We

review

de

novo

The district court
the

denial of a motion to dismiss an indictment.
Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).

2

district

court’s

United States v.

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“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

branch

delegation

of

doctrine

States

Ambert,

561

F.3d

Congress’ delegation of authority

government

as

v.

long

as

does

not

Congress

offend

has

the

non-

delineated

an

“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).
Clark contends that there is no intelligible principle
guiding

the

Attorney

General’s

exercise

of

his

discretion.

Although this court has yet to resolve this issue in a published
decision,

this

unpublished,

court

has

non-binding

rejected

this

decisions.

argument

See

United

in

three

States

v.

Rogers, No. 10-5099, 2012 WL 698890 (4th Cir. Mar. 6, 2012)
(unpublished

after

argument),

petition

for

cert.

filed,

__

U.S.L.W. __ (U.S. May 16, 2012) (No. 11-10450); United States v.
Stewart, Nos. 11-4420/4471, 2012 WL 130746 (4th Cir. Jan. 18,
2012), cert. denied, __ S. Ct. __, 2012 WL 1390242 (U.S. May 21,
3

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2012); United States v. Burns, 418 F. App’x 209 (4th Cir. 2011)
(unpublished after argument).

As was the court in Rogers, we

are “satisfied that the persuasive reasoning of the panels in
Burns and Stewart . . . fully disposes of the claim here.”
WL 698890, at *2.

2012

This disposition is also in accord with the

published opinions from several of our sister circuits, which
have squarely rejected the non-delegation argument.
United

States

v.

Guzman,

591

F.3d

83,

93

See, e.g.,

(2d

Cir.

2010)

(concluding that the Attorney General’s delegated authority is
“highly

circumscribed”

because

SORNA

“includes

specific

provisions delineating what 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”

(internal

citations

omitted)), cert. denied, 130 S. Ct. 3487 (2010); United States
v.

Whaley,

SORNA’s

577

F.3d

statement

principle);

Ambert,

254,
of
561

264

(5th

purpose
F.3d

is

at

Cir.

2009)

a

guiding

1213-14

(holding

that

intelligible

(describing

SORNA’s

broad policy goals as intelligible principles).

Based on these

persuasive

non-delegation

authorities,

we

too

reject

Clark’s

argument.
Turning to Clark’s Commerce Clause and ex post facto
claims, Clark aptly concedes that these issues are foreclosed by
this court’s decision in United States v. Gould, 568 F.3d 459
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(4th Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010).

A panel

of this court cannot “overrule or reconsider a precedent set by
another panel.”

United States v. Najjar, 300 F.3d 466, 486 n.8

(4th Cir. 2002).

We thus hold that Clark’s ex post facto and

Commerce Clause challenges to SORNA fail.
For

the

foregoing

court’s judgment.
facts

and

materials

legal
before

reasons,

we

affirm

the

district

We dispense with oral argument because the
contentions

are

adequately

the

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

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