USA v. Justin Richardson

Filing

FILED PER CURIAM OPINION (STEPHEN R. REINHARDT, MARY H. MURGUIA and DAVID A. EZRA) AFFIRMED. FILED AND ENTERED JUDGMENT. [9138069]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JUSTIN ALLAN RICHARDSON,
Defendant-Appellant.

No. 11-10346
D.C. No.
3:10-cr-00087ECR-VPC-1
OPINION

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., Senior District Judge, Presiding
Argued and Submitted
April 16, 2012—San Francisco, California
Submission Vacated May 4, 2012
Resubmitted June 11, 2014
Filed June 19, 2014
Before: Stephen Reinhardt and Mary H. Murguia, Circuit
Judges, and David A. Ezra, District Judge.*
Per Curiam Opinion

*

The Honorable David A. Ezra, District Judge for the U.S. District
Court for the District of Hawaii, sitting by designation.

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UNITED STATES V. RICHARDSON
SUMMARY**

Criminal Law
Affirming a conviction for violating the registration
requirements of the Sex Offender Registration and
Notification Act, the panel held that (1) SORNA’s delegation
of authority to the Attorney General to determine the
applicability of SORNA’s registration requirements to preSORNA sex offenders is consistent with the requirements of
the non-delegation doctrine; and (2) SORNA does not violate
the Tenth Amendment’s anti-commandeering principle.
The panel wrote that the defendant’s arguments that
SORNA’s registration requirements violate the Commerce
Clause and the Ex Post Facto Clause are foreclosed in this
circuit.
The panel resolved a sentencing issue in a concurrentlyfiled memorandum disposition.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. RICHARDSON

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COUNSEL
Dan C. Maloney (argued), Research & Writing Attorney,
Ramon Acosta, Assistant Federal Public Defender, Renee L.
Valladares, Federal Public Defender, Reno, Nevada, for
Defendant-Appellant.
Elizabeth A. Olson (argued), Assistant United States
Attorney, Robert L. Ellman, Appellate Chief, Daniel G.
Bogden, United States Attorney, District of Nevada, Reno,
Nevada, for Plaintiff-Appellee.

OPINION
PER CURIAM:
Justin Allan Richardson appeals his conviction and
sentence for violating the registration requirements of the Sex
Offender Registration and Notification Act (“SORNA”). He
raises several constitutional challenges to SORNA and argues
that the district court erred in calculating his criminal history.
We affirm.1
BACKGROUND
In 1994, Richardson was convicted of lewd and lascivious
acts with a child in a California state court and ordered to
register as a sex offender. On July 21, 2010, a federal grand
jury indicted Richardson for failing to register as a sex
offender as required by SORNA. Richardson moved to
1

We consider and resolve the sentencing issue in a memorandum
disposition filed concurrently herewith.

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dismiss the indictment, arguing that SORNA is
unconstitutional because it violates the non-delegation
doctrine, the Tenth Amendment, the Commerce Clause, and
the Ex Post Facto Clause. The district court denied
Richardson’s motion, and he subsequently pled guilty to the
single-count indictment without a plea agreement. However,
Richardson objected to the Presentence Investigation Report’s
assessment of one criminal history point for a 2000
misdemeanor conviction that resulted in a sentence of time
served. Richardson argued that he was not represented by
counsel during that proceeding. The district court overruled
his objection and sentenced him to twenty-seven months’
imprisonment. Richardson appealed. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
DISCUSSION
Richardson argues that SORNA is unconstitutional on the
grounds that it violates the non-delegation doctrine, the Tenth
Amendment, the Commerce Clause, and the Ex Post Facto
Clause. We reject each of these arguments.
I. Non-Delegation Doctrine
Richardson argues that SORNA’s provisions allowing the
Attorney General to determine the applicability of its
registration requirements to pre-SORNA sex offenders violate
the non-delegation doctrine, which prohibits Congress from
“delegat[ing] its legislative power to another branch of
government.” Touby v. United States, 500 U.S. 160, 165
(1991). Three years ago, we summarized the origins, history,
and requirements of the non-delegation doctrine:

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The Supreme Court has only twice invalidated
legislation under this doctrine, the last time
being seventy-five years ago. Article I, § 1 of
the Constitution provides that “[a]ll legislative
Powers herein granted shall be vested in a
Congress of the United States.” In practice, of
course, Congress delegates authority
frequently. The relevant question is how,
when, and under what circumstances
Congress may delegate its authority. The
Supreme Court’s answer: “[W]hen Congress
confers decisionmaking authority upon
agencies Congress must lay down by
legislative act an intelligible principle to
which the person or body authorized to act is
directed to conform.” Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 472 (2001)
(emphasis and internal quotation marks
omitted). “Only if [a court] could say that
there is an absence of standards for the
guidance of the Administrator’s action, so that
it would be impossible in a proper proceeding
to ascertain whether the will of Congress has
been obeyed, would [it] be justified in
overriding its choice of means for effecting its
declared purpose. . . .” Yakus v. United States,
321 U.S. 414, 426 (1944). In applying the
intelligible principle test to congressional
delegations, the Supreme Court “has been
driven by a practical understanding that in our
increasingly complex society, replete with
ever changing and more technical problems,
Congress simply cannot do its job absent an
ability to delegate power under broad general

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UNITED STATES V. RICHARDSON
directives.” Mistretta [v. United States,
488 U.S. 361, 372 (1989)].

Hepting v. AT & T Corp. (In re Nat’l Sec. Agency
Telecommunications Records Litig.), 671 F.3d 881, 895–96
(9th Cir. 2011) (alterations in original).
Richardson’s specific contention is that Congress violated
the non-delegation doctrine when it delegated its authority to
the Attorney General to determine the applicability of
SORNA’s registration requirements to pre-SORNA sex
offenders. See 42 U.S.C. § 16913(d). Every court of appeals
to have considered the question has concluded that Congress
did not violate the Constitution when it delegated this
implementation authority to the Attorney General. See, e.g.,
United States v. Cooper, No. 13-2324, 2014 WL 1386816, at
*8 (3d Cir. Apr. 10, 2014) (“Applying the intelligible
principle test, we conclude that Congress did not violate the
nondelegation doctrine in delegating responsibility to the
Attorney General to determine the applicability of SORNA’s
registration requirements for pre-Act offenders in 42 U.S.C.
§ 16913(d). In enacting SORNA, Congress laid out the
general policy, the public agency to apply this policy, and the
boundaries of the delegated authority. This is all that is
required under the modern nondelegation jurisprudence.”);
United States v. Goodwin, 717 F.3d 511, 516 (7th Cir. 2013)
(“SORNA directs the Attorney General to exercise his
discretion in a manner consistent with the intelligible
principle of ‘protecting the public’ from sex offenders and
establishing a ‘comprehensive’ registry; the statute identifies
the Attorney General as the official to exercise this delegated
authority; and the Attorney General’s authority is narrowly
restricted to determining the applicability of SORNA to
offenders whose crimes predate the statute’s enactment.”);

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United States v. Whaley, 577 F.3d 254, 263–64 (5th Cir.
2009) (“SORNA’s statement of purpose, to ‘establish[ ] a
comprehensive national system’ of sex offender registration
to ‘protect the public from sex offenders and offenders
against children,’ 42 U.S.C. § 16901, is an intelligible
principle that guides the Attorney General in exercising his
discretion.” (alteration in original)).2 We are persuaded by

2

See also United States v. Fernandez, 710 F.3d 847, 850 (8th Cir. 2013)
(“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.”); United States v. Felts,
674 F.3d 599, 606 (6th Cir. 2012) (“Congress’s delegations under SORNA
possess a suitable ‘intelligible principle’ and are “well within the outer
limits of [the Supreme Court’s] nondelegation precedents.” (alteration in
original)); United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010) (“The
Attorney General’s authority under SORNA is highly circumscribed.
SORNA includes specific provisions delineating what crimes require
registration, 42 U.S.C. § 16911; where, when, and how an offender must
register, id. § 16913; what information is required of registrants, id.
§ 16914; and the elements and penalties for the federal crime of failure to
register, 18 U.S.C. § 2250. If § 16913(d) gives the Attorney General the
power to determine SORNA’s ‘retroactivity,’ it does so only with respect
to the limited class of individuals who were convicted of covered sex
offenses prior to SORNA’s enactment; the Attorney General cannot do
much more than simply determine whether or not SORNA applies to those
individuals and how they might comply as a logistical matter. If, on the
other hand, § 16913(d) gives the Attorney General the authority only to
implement SORNA with respect to all sex offenders, whether or not they
were convicted pre-enactment, then the scope of that authority is even
more circumscribed. The Supreme Court has upheld much broader
delegations than these.” (citations omitted)); United States v. Ambert,
561 F.3d 1202, 1213–14 (11th Cir. 2009) (“We are satisfied that Congress
has provided the Attorney General with ‘intelligible principles’ in the Sex
Offender Registration and Notification Act. Congress has undeniably
provided the Attorney General with a policy framework in § 16901 to
guide his exercise of discretion under § 16913(d); and it has made a series
of legislative judgments in §§ 16911, 16913, 16914 and 2250 that

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the reasoning of our colleagues in these other circuits and
adopt it as our own. Accordingly, we hold that SORNA’s
delegation of authority to the Attorney General to determine
the applicability of SORNA’s registration requirements to
pre-SORNA sex offenders is consistent with the requirements
of the non-delegation doctrine.
II. Tenth Amendment
Richardson next argues that SORNA violates the Tenth
Amendment. He contends that SORNA unlawfully forces
states and state officials to create sex offender registries that
meet federal standards and to comply with SORNA’s many
other complex and onerous requirements. In other words, he
argues that SORNA violates the Tenth Amendment’s anticommandeering principle. See generally Printz v. United
States, 521 U.S. 898, 935 (1997).
Again, we join every other court of appeals that has
considered the question in holding that SORNA does not
violate the Tenth Amendment’s anti-commandeering
principle and adopt the other circuits’ reasoning for doing so.
See United States v. Felt, 674 F.3d 599, 606–08 (6th Cir.
2012); United States v. Johnson, 632 F.3d 912, 920 (5th Cir.
2011); Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010).
SORNA does not compel states or state officials to comply
with its requirements; rather, Congress engaged in a
constitutionally valid exercise of its spending power by
conditioning the receipt of certain federal funds on the
implementation of SORNA. See 42 U.S.C. §§ 16924,
16925(a); Felts, 674 F.3d at 608 (“Congress through SORNA
constrict the Attorney General’s discretion to a narrow and defined
category.”).

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has not commandeered Tennessee, nor compelled the state to
comply with its requirements. Congress has simply placed
conditions on the receipt of federal funds. A state is free to
keep its existing sex-offender registry in place (and risk
losing funding) or adhere to SORNA’s requirements (and
maintain funding).”); Johnson, 632 F.3d at 920 (“While
SORNA orders sex offenders traveling interstate to register
and keep their registration current, SORNA does not require
the States to comply with its directives. Instead, the statute
allows jurisdictions to decide whether to implement its
provisions or lose ten percent of their federal funding
otherwise allocated for criminal justice assistance.” (citations
omitted)); Kennedy, 612 F.3d at 269 (“[W]hile SORNA
imposes a duty on the sex offender to register, it nowhere
imposes a requirement on the State to accept such
registration.”). Accordingly, Richardson’s Tenth Amendment
challenge fails.
III.

Commerce Clause and Ex Post Facto Clause

Finally, Richardson argues that SORNA’s registration
requirements violate the Commerce Clause and Ex Post Facto
Clause. These challenges are foreclosed in this circuit. See
United States v. Cabrera-Gutierrez, No. 12-30233, 2014 WL
998173, at *3 (9th Cir. Mar. 17, 2014) (Commerce Clause);
United States v. Shoulder, 738 F.3d 948, 954 (9th Cir. 2013)
(Ex Post Facto Clause challenge to the SORNA registration
requirements); United States v. Elkins, 683 F.3d 1039, 1045
(9th Cir. 2012) (same). We therefore reject them.

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CONCLUSION

We hold that Richardson’s non-delegation doctrine, Tenth
Amendment, Commerce Clause, and Ex Post Facto Clause
challenges to SORNA fail.
AFFIRMED.

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