FILED
United States Court of Appeals
Tenth Circuit
September 5, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 11-2165
v.
(D.C. No. 2:10-CR-03158-RB-1)
(D.N.M.)
RAJU C. RICKETT,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HOLMES, O’BRIEN, and MATHESON, Circuit Judges.
Defendant-Appellant, Raju C. Rickett, conditionally pleaded guilty to
failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a), reserving
his right to appeal the district court’s denial of his motion to dismiss. On appeal,
Mr. Rickett abandons the arguments made in his motion to dismiss. He argues
instead that the discretion statutorily granted to the Attorney General to declare
the federal Sex Offender Registration and Notification Act (“SORNA” or the
“Act”), 42 U.S.C. §§ 16901–16962, applicable to offenders convicted of sex
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate Procedure
32.1 and Tenth Circuit Rule 32.1.
crimes prior to SORNA’s enactment date—that is, July 26, 2006—“violate[s] the
non-delegation doctrine that flows from Article I, § 1 of the Constitution.” Aplt.
Opening Br. at 7. Exercising our jurisdiction under 28 U.S.C. § 1291, we
AFFIRM.
I
Mr. Rickett was convicted in New Mexico state court in July 1998 of an
offense for which SORNA would require registration. On July 20, 2005, Mr.
Rickett was also convicted in New Mexico state court for failing to register as a
sex offender. This conviction resulted in Mr. Rickett being sentenced to eighteen
months’ imprisonment—a sentence that ran concurrently with his ninety-month
sentence for an April 2006 state conviction for contributing to the delinquency of
a minor and conspiracy.
Just before his release in November 2009, Mr. Rickett was notified of his
duty to register as a sex offender under New Mexico law; he was not notified of
any duty to do so under federal law. Following his release, Mr. Rickett failed to
register both in El Paso, Texas, where he lived and worked for several months,
and in Eunice, New Mexico, where he later moved. A federal grand jury indicted
Mr. Rickett in November 2010 for failing to register as a sex offender as required
by SORNA, in violation of 18 U.S.C. § 2250(a).
In April 2011, Mr. Rickett moved to reinstate an earlier-filed (and
voluntarily withdrawn) motion to dismiss, arguing that the government failed to
2
allege facts sufficient to prove that he had “knowingly” failed to register as a sex
offender under SORNA. The district court denied the motion on the ground that
Mr. Rickett’s knowledge was an issue of fact for the jury. Mr. Rickett thereafter
pleaded guilty to the indictment pursuant to a conditional plea agreement. In the
agreement, Mr. Rickett generally waived the right to appeal his conviction and
sentence but reserved the right to appeal the district court’s denial of his motion
to dismiss. In August 2011, the district court sentenced Mr. Rickett to twenty-
four months’ imprisonment followed by five years of supervised release. After
judgment was entered, Mr. Rickett timely appealed.
Before us, Mr. Rickett does not advance the arguments in his April 2011
motion to dismiss. Instead, his challenge on appeal is a new one: that 42 U.S.C. §
16913(d) is an unconstitutional delegation of legislative power to the Attorney
General to determine whether SORNA is to be applied retroactively to pre-Act
offenders.
II
A
Before reaching the merits of Mr. Rickett’s claim, we turn to the question
of whether Mr. Rickett waived his right to raise a facial challenge to the
constitutionality of SORNA on appeal by pleading guilty to the charged conduct.
First, we examine the jurisdictional effects of a guilty plea. Next, we consider
whether Mr. Rickett’s claim falls within the narrow class of claims that survives a
3
plea of guilty, ultimately concluding that we need not resolve this issue because
the government has expressly waived its right to enforce Mr. Rickett’s guilty plea
or plea agreement as a bar to his appeal.
1
We address first whether Mr. Rickett’s guilty plea deprives us of
jurisdiction to hear his claim. We conclude that it does not. See United States v.
De Vaughn, 694 F.3d 1141, 1158 (10th Cir. 2012) (“[A]n unconditional guilty
plea does not deprive us of jurisdiction.”), cert. denied, --- U.S. ----, 133 S. Ct.
2383 (2013). This is because the effect of a guilty plea is merely preclusive, not
jurisdictional, and thus does not deprive us of our authority to determine whether
or not Mr. Rickett’s claim is barred on appeal. As we noted in De Vaughn:
To say that a guilty plea forecloses independent inquiry into
certain pre-plea defenses, is not to say the court has no power to
decide the case. Rather, it means the defendant may only appeal
on limited grounds, such as vindictive prosecution, double
jeopardy, or the voluntary and intelligent nature of his plea. . . .
Determining whether a claim is in fact barred, however, is
squarely within an appellate court’s jurisdiction. 1
Id. at 1157 (emphasis added) (citations omitted) (internal quotation marks
1
“The circuits to consider the jurisdictional effect of a guilty plea have
reached different results.” De Vaughn, 694 F.3d at 1155; see id. at 1155–58 (discussing
circuit split). For example, the Ninth Circuit has held, as we do, that “a valid guilty plea
does not deprive the court of jurisdiction.” United States v. Jacobo Castillo, 496 F.3d
947, 949 (9th Cir. 2007) (en banc). On the other hand, the Seventh Circuit has held that
an unconditional guilty plea deprives an appellate court of jurisdiction. See United States
v. Combs, 657 F.3d 565, 569 (7th Cir. 2011) (per curiam), cert. denied --- U.S. ----, 132 S.
Ct. 2373 (2012).
4
omitted). Having established that Mr. Rickett’s guilty plea does not deprive us of
subject-matter jurisdiction, we turn now to the question of whether Mr. Rickett’s
guilty plea precludes us from reaching the merits of his SORNA claim.
2
On appeal, Mr. Rickett argues that Congress violated the Constitution’s
nondelegation doctrine when it allowed the Attorney General to decide if SORNA
would apply retroactively to persons who committed sex offenses prior to
SORNA’s enactment. However, Mr. Rickett pleaded guilty to his SORNA
offense. And he did not condition his guilty plea on the ability to raise this
particular constitutional claim on appeal. We have frequently said that “a
voluntary and unconditional guilty plea waives all non-jurisdictional defenses.”
Id. at 1145 (quoting United States v. Salazar, 323 F.3d 852, 856 (10th Cir. 2003))
(internal quotation marks omitted); see also United States v. Wright, 43 F.3d 491,
494 (10th Cir. 1994) (“[A] defendant who knowingly and voluntarily pleads
guilty waives all non-jurisdictional challenges to his conviction.” (footnote
omitted)); see United States v. Avila, --- F.3d ----, 2013 WL 4437610, at *2 (10th
Cir. 2013). Thus, Mr. Rickett’s effectively unconditional guilty plea ordinarily
would place in doubt his ability to press his constitutional nondelegation claim on
appeal.
However, a narrow exception to this general rule of preclusion—known as
the Blackledge/Menna exception—exists for two constitutional claims: “due
5
process claims for vindictive prosecution and double jeopardy claims that are
evident from the face of the indictment.” See De Vaughn, 694 F.3d at 1145–46.
The Blackledge/Menna exception grew out of two Supreme Court decisions:
Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61
(1975) (per curiam). At the heart of the Blackledge/Menna exception is the
notion that: “Where the State [or federal government] is precluded by the United
States Constitution from haling a defendant into court on a charge, federal law
requires that a conviction on that charge be set aside even if the conviction was
entered pursuant to a counseled plea of guilty.” Menna, 423 U.S. at 62 (citing
Blackledge, 417 U.S. at 30). Mr. Rickett now urges us to hold that “[a] claim that
a statute is facially unconstitutional falls within” the Blackledge/Menna
exception. Aplt. Opening Br. at 16 (quoting United States v. Morgan, 230 F.3d
1067, 1071 (8th Cir. 2000)) (internal quotation marks omitted).
We have not yet squarely addressed whether a facial challenge to the
constitutionality of a statute survives a guilty plea. There is a circuit split on this
issue, with the majority of circuits holding that facial challenges to the
constitutionality of a statute are jurisdictional in nature and survive a valid guilty
plea. Compare United States v. Saac, 632 F.3d 1203, 1208 (11th Cir.) (holding
that “[t]he constitutionality of . . . the statute under which defendants were
convicted, is a jurisdictional issue that defendants did not waive upon pleading
guilty”), cert. denied, --- U.S. ----, 132 S. Ct. 139 (2011); United States v.
6
Phillips, 645 F.3d 859, 863 (7th Cir. 2011) (same); United States v. Seay, 620
F.3d 919, 922 (8th Cir. 2010) (same); United States v. Slone, 411 F.3d 643, 646,
650 (6th Cir. 2005) (same); United States v. Whited, 311 F.3d 259, 262, 264 (3d
Cir. 2002) (same); United States v. Garcia-Valenzuela, 232 F.3d 1003, 1006 (9th
Cir. 2000) (same), with United States v. Drew, 200 F.3d 871, 876 (D.C. Cir. 2000)
(holding that a facial challenge to the constitutionality of a statute was non-
jurisdictional and waived by defendant’s guilty plea); United States v. Feliciano,
223 F.3d 102, 125 (2d Cir. 2000) (same).
Were we to conclude that Mr. Rickett’s claim implicates our subject-matter
jurisdiction or one of the Blackledge/Menna exceptions, we would be required to
hear it on appeal as such a claim cannot be waived by a guilty plea. In the
alternative, if we were to conclude that Mr. Rickett’s claim does not implicate our
subject-matter jurisdiction or Blackledge/Menna, we ordinarily would deem his
arguments on appeal waived and affirm his conviction.
Here, however, we find ourselves in a unique situation because the
government has voluntarily and explicitly waived its right to enforce any
preclusive effects of Mr. Rickett’s guilty plea. See Aplee. Br. at 6 (“Although
this Court has not addressed specifically whether a defendant may bring a facial
challenge to a statute after pleading guilty to a violation of the statute, this
Court’s precedents suggest that Rickett did not waive his right to bring a facial
challenge by his guilty plea.”); see also id. at 13 (“Because Rickett essentially
7
argues that he pled guilty to facts that do not constitute a federal crime, the
United States agrees that his guilty plea does not bar his claim.”). In light of the
government’s express waiver, Mr. Rickett’s guilty plea does not stand as a bar to
our consideration of his constitutional nondelegation challenge. See De Vaughn,
694 F.3d at 1158 (“Because an unconditional guilty plea does not deprive us of
jurisdiction, the Government may waive or forfeit the effect of such a plea. The
Government did so here . . . .”).
Yet, pursuant to the express terms of his plea agreement, Mr. Rickett
waived nearly all of his appellate rights by pleading guilty. 2 He reserved only the
right to appeal the denial of his motion to dismiss. On appeal, however, Mr.
Rickett raises an argument regarding the nondelegation doctrine that he did not
make in his motion to dismiss. Generally speaking, assuming that the plea
agreement was knowingly and voluntarily entered (and that is not at issue here), a
2
As we noted in De Vaughn, “[a]n appellate waiver contained in a plea
agreement is not quite the same thing as an unconditional guilty plea.” 694 F.3d at 1155
n.10. “The former is essentially a court-approved contract that is usually enforceable on
appeal. The latter, however, is an admission the defendant is guilty of a particular crime.”
Id. (citation omitted). In De Vaughn, we dealt specifically with the issue of whether the
preclusive effect of a guilty plea could be waived by the government. As noted above, we
answered this question in the affirmative. See id. at 1156–58. And the government in
this case has explicitly waived any preclusive effect of Mr. Rickett’s guilty plea.
Similarly, we have previously held that an appellate waiver contained in a plea agreement
can be waived by the government. See United States v. Contreras-Ramos, 457 F.3d 1144,
1145 (10th Cir. 2006). Here, as we note below, the government also has declined to
enforce the appellate waiver contained in Mr. Rickett’s plea agreement. See Aplee. Br. at
6, 13. Thus, neither Mr. Rickett’s guilty plea nor his appellate waiver bar our
consideration of his claim on appeal.
8
defendant like Mr. Rickett would be bound by the terms of the plea agreement.
See, e.g., United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc)
(per curiam). Consequently, he would not be free to present his nondelegation
claim to us.
However, “[a] defendant’s waiver of the right to appeal may itself be
waived by the government.” Contreras-Ramos, 457 F.3d at 1145. And, the
government has explicitly waived its right to enforce the appellate waiver
contained in Mr. Rickett’s plea agreement. See Aplee. Br. at 6 (“The United
States also is not pressing his appellate waiver as a bar to his claim so that the
Court may decide the important question presented by Rickett’s appeal.”); see
also id. at 13 (“[T]he United States is not seeking to enforce the appellate waiver
in this case.”). Accordingly, it is unnecessary for us to reach the question of
whether Mr. Rickett’s claim implicates our subject-matter jurisdiction or one of
the Blackledge/Menna exceptions because regardless of our answer to this
question, we may proceed to address the merits of Mr. Rickett’s claim. 3
3
We pause to underscore that the jurisdictional question we decline to
answer is not whether we have the power to hear Mr. Rickett’s claim. As articulated
supra in Section II.A.1, we have already determined that we have subject matter
jurisdiction over Mr. Rickett’s appeal. See De Vaughn, 694 F.3d at 1158 (“[A]n
unconditional guilty plea does not deprive us of jurisdiction.”). Rather, the question that
remains open is whether our consideration of Mr. Rickett’s facial constitutional claim is
compelled or discretionary. Specifically, if we were to conclude that Mr. Rickett’s claim
implicates our subject-matter jurisdiction or one of the Blackledge/Menna exceptions, we
would be compelled to consider it, as such a claim cannot be waived. If, on the other
hand, we were to conclude that Mr. Rickett’s claim does not implicate our subject-matter
(continued...)
9
B
Having concluded that we may hear Mr. Rickett’s claim, we proceed to
address the merits of his argument. We begin with a brief discussion of SORNA
and its application to Mr. Rickett. We then turn to Mr. Rickett’s nondelegation
argument.
1
SORNA took effect on July 27, 2006, with the declared purpose of
“protect[ing] the public from sex offenders and offenders against children” and
“establish[ing] a comprehensive national system for the registration of those
offenders.” 42 U.S.C. § 16901. Among other provisions, SORNA requires States
to maintain sex-offender registries and requires a person convicted of one or more
specified sex crimes to register therewith and keep such registration current. See
id. §§ 16912(a), 16913(a), (c). A knowing failure to register or update a
registration is punishable by up to ten years’ imprisonment. See 18 U.S.C. §
2250(a).
By its express terms, SORNA does not apply to individuals who were
convicted of sex offenses prior to July 27, 2006—so-called “pre-Act offenders.”
3
(...continued)
jurisdiction or one of the Blackledge/Menna exceptions, the operative question would be
one of discretion, and we would exercise our discretion to hear the claim because the
government has declined to enforce Mr. Rickett’s waiver of his claims on appeal. Thus,
because all roads lead to the same place—i.e., consideration of Mr. Rickett’s claim—we
may save for another day the question of whether a facial challenge to the validity of a
statute survives a defendant’s guilty plea.
10
See Reynolds v. United States, --- U.S. ----, 132 S. Ct. 975, 984 (2012). However,
SORNA vests significant regulatory authority in the Attorney General with
respect to such offenders:
The Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex
offenders convicted before the enactment of this chapter or its
implementation in a particular jurisdiction, and to prescribe rules
for the registration of any such sex offenders . . . .
42 U.S.C. § 16913(d). As written, § 16913(d) gives the Attorney General
discretion to decide whether and how SORNA should be applied retroactively.
See Reynolds, 132 S. Ct. at 984 (“[T]he Act’s registration requirements do not
apply to pre-Act offenders until the Attorney General so specifies.”).
On February 28, 2007, the Attorney General issued an Interim Rule
specifying that “[t]he requirements of [SORNA] apply to all sex offenders,
including sex offenders convicted of the offense for which registration is required
prior to the enactment of that Act.” Applicability of [SORNA], 72 Fed. Reg.
8894, 8897 (Feb. 28, 2007). This rule has since been finalized, see 28 C.F.R. §
72.3; Applicability of [SORNA], 75 Fed. Reg. 81,849 (Dec. 29, 2010).
Mr. Rickett, a pre-Act offender, is now arguing that § 16931(d) constitutes
an unconstitutional delegation of authority to the Attorney General. Mr. Rickett
concedes that because he failed to raise this argument before the district
court—thus forfeiting it, see Richison v. Ernest Grp., Inc., 634 F.3d 1123,
11
1127–28 (10th Cir. 2011)—his claim is only entitled to review under the rigorous
plain-error standard, see Aplt. Opening Br. at 16.
2
To succeed under plain-error review, Mr. Rickett must demonstrate:
“(1) error that is (2) plain, (3) affects substantial rights, and (4) seriously affects
the fairness, integrity, or public reputation of judicial proceedings.” United
States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012). For error to be
“plain,” it must be “clear or obvious under current law.” United States v.
McGehee, 672 F.3d 860, 876 (10th Cir. 2012) (quoting United States v. Cooper,
654 F.3d 1104, 1117 (10th Cir. 2011)) (internal quotation marks omitted); see,
e.g., Henderson v. United States, --- U.S. ----, 133 S. Ct. 1121, 1124–25 (2013)
(“In our view, as long as the error was plain as of that later time—the time of
appellate review—the error is ‘plain’ within the meaning of the Rule [i.e., Fed. R.
Crim. P. 52(b)].”). In other words, the error must be “contrary to well-settled
law.” United States v. Edgar, 348 F.3d 867, 871 (10th Cir. 2003) (quoting United
States v. Duran, 133 F.3d 1324, 1330 (10th Cir. 1998)) (internal quotation marks
omitted). “In general, for an error to be contrary to well-settled law, either the
Supreme Court or this court must have addressed the issue.” DeChristopher, 695
F.3d at 1091 (quoting United States v. Thornburgh, 645 F.3d 1197, 1208 (10th
Cir. 2011)) (internal quotation marks omitted).
12
Because we conclude that SORNA’s purported constitutional infirmity
under the nondelegation doctrine is anything but plain (i.e., clear or obvious), we
may dispose of Mr. Rickett’s claim on the second prong, and need not reach
prongs one, three, or four. To facilitate our analysis of whether any error here is
“clear” or “obvious” we begin with a brief discussion of the origin and evolution
of the nondelegation doctrine. “The nondelegation doctrine is rooted in the
principle of separation of powers that underlies our tripartite system of
Government.” Mistretta v. United States, 488 U.S. 361, 371 (1989). The doctrine
derives from the Constitution’s opening declaration that “[a]ll legislative Powers
herein granted shall be vested in a Congress of the United States.” U.S. Const.
art. I, § 1. Fidelity to the constitutional text and to the structure of government
that the Constitution sets up “mandate[s] that Congress generally cannot delegate
its legislative power to another Branch.” Mistretta, 488 U.S. at 372. Congress
may, however, vest “decisionmaking authority” in a coordinate branch so long as
it provides “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) (alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States,
276 U.S. 394, 409 (1928)) (internal quotation marks omitted).
Between 1789 and 1935—a period spanning 146 years of constitutional
history—the Supreme Court “never struck down a challenged statute on
13
delegation grounds.” Mistretta, 488 U.S. at 373. Then, in 1935, the Court
invalidated two statutes as unconstitutional delegations of legislative power. See
A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935);
Panama Refining Co. v. Ryan, 293 U.S. 388, 430 (1935); see also 1 Ronald D.
Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and
Procedure § 4.8(b), at 649 n.17 (5th ed. 2012) (“The only time the Court clearly
invalidated a statute for being an excessive delegation of legislative authority was
1935.”).
The doctrine went dormant thereafter, and the Supreme Court has since
upheld, “without deviation, Congress’ ability to delegate power under broad
standards.” Mistretta, 488 U.S. at 373; see Whitman, 531 U.S. at 474. Indeed, so
dormant is the nondelegation doctrine that some have deemed it a “dead letter.”
See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 329
(2002). Still, the Supreme Court has never expressly overruled Schechter Poultry
or Panama Refining; so the doctrine, even if dead, has never received a proper
burial.
Here, Mr. Rickett would have us revive the long-dormant nondelegation
doctrine and hold that 42 U.S.C. § 16913(d) constitutes an unconstitutional
delegation of authority to the Attorney General. However, in advancing this
argument, Mr Rickett confronts an insurmountable obstacle: that is, plain-error
14
review, which does not allow for his desired outcome. If there is anything clear
or obvious about the nondelegation doctrine, it is that, viewed through its lens,
virtually any statute will be deemed valid. See Whitman, 531 U.S. at 474–75
(“[W]e have ‘almost never felt qualified to second-guess Congress regarding the
permissible degree of policy judgment that can be left to those executing or
applying the law.’” (quoting Mistretta, 488 U.S. at 416 (Scalia, J., dissenting));
Mistretta, 488 U.S. at 373 n.7 (“In recent years, our application of the
nondelegation doctrine principally has been limited to the interpretation of
statutory texts, and, more particularly, to giving narrow constructions to statutory
delegations that might otherwise be thought to be unconstitutional.”); see also
Mistretta, 488 U.S. at 415 (Scalia, J., dissenting) (“[The nondelegation doctrine]
is not . . . readily enforceable by the courts.”); Nat’l Cable Television Ass’n v.
United States, 415 U.S. 352, 352–53 (1974) (Marshall, J., concurring in part,
dissenting in part) (stating that the doctrine “has been virtually abandoned by the
[Supreme] Court for all practical purposes”).
In assessing whether any error here would be “clear” or “obvious,” we note
that neither the Supreme Court nor our court has ever addressed whether §
16913(d) is an unconstitutional delegation to the Attorney General. 4 For this
4
In United States v. Carel, we observed in passing, “Th[is] court has held
that § 16913—SORNA’s registration provision—does not violate the . . . nondelegation
(continued...)
15
reason alone, it would be extremely difficult (if not impossible) for Mr. Rickett to
establish that any error by the district court in denying his motion to dismiss was
clear or obvious. See, e.g., DeChristopher, 695 F.3d at 1091. Moreover, those
4
(...continued)
doctrine . . . .” 668 F.3d 1211, 1214 (10th Cir. 2011) (citing United States v. Lawrance,
548 F.3d 1329, 1333–34 (10th Cir. 2008); United States v. Hinckley, 550 F.3d 926,
935–40 (10th Cir. 2008), cert. denied, --- U.S. ----, 132 S. Ct. 2122 (2012), abrogated on
other grounds by Reynolds, 132 S. Ct. at 980, 984). As Mr. Rickett recognizes, the
authorities that we cited in Carel do not validate our statement that we have rejected a
nondelegation challenge to § 16913(d). See Lawrance, 548 F.3d at 1331 (listing the
appellant’s claims and not mentioning a nondelegation challenge); Hinckley, 550 F.3d at
939 (declining to reach defendant’s nondelegation challenge because he lacked standing
to bring it). However, Carel and its apparent misstatement do not alter our analysis
because it is patent that Carel’s brief comment regarding the nondelegation
doctrine—comprising slightly more than a dozen words in one sentence—was dicta; the
case actually was resolved under the Necessary and Proper Clause. See Carel, 668 F.3d
at 1217 (“Based on Congress’s authority to enact Mr. Carel’s original statute of
conviction (sexual abuse of a minor in Indian country) and its power to create civil
penalties and regulations for persons convicted of violating that statute under the
Necessary and Proper Clause, we hold that Congress did not exceed the scope of its
authority by requiring Mr. Carel—a federal sex offender on supervised release—to
register as a sex offender.”). “[A] panel of this Court is bound by a holding of a prior
panel of this Court but is not bound by a prior panel’s dicta.” Bates v. Dep’t of Corr. of
Kan., 81 F.3d 1008, 1011 (10th Cir. 1996); accord United States v. Villarreal-Ortiz, 553
F.3d 1326, 1328 n.3 (10th Cir. 2009) (per curiam); see also Sarnoff v. Am. Home Prods.
Corp., 798 F.2d 1075, 1084 (7th Cir. 1986) (noting that dictum “being peripheral, may
not have received the full and careful consideration of the court that uttered it”),
abrogation on other grounds recognized by Hart v. Schering-Plough Corp., 253 F.3d
272, 274 (7th Cir. 2001). See generally Michael Abramowicz & Maxwell Stearns,
Defining Dicta, 57 Stan. L. Rev. 953, 1065 (2005) (“A holding consists of those
propositions along the chosen decisional path or paths of reasoning that (1) are actually
decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a
holding, a proposition stated in a case counts as dicta.” (emphasis added)). In sum, we
consider Carel’s observation regarding the nondelegation doctrine to be dicta and,
accordingly, it does not affect our analysis.
16
circuits that have considered similar nondelegation challenges to SORNA have
uniformly rejected them. See, e.g., United States v. Kuehl, 706 F.3d 917, 920 (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. Guzman, 591 F.3d 83, 91–93 (2d Cir. 2010); United
States v. Whaley, 577 F.3d 254, 263–64 (5th Cir. 2009); United States v. Ambert,
561 F.3d 1202, 1212–15 (11th Cir. 2009); see also Kuehl, 706 F.3d at 920 (“We
agree with our sister Circuits that section 16913(d) of SORNA is a valid
delegation of authority because Congress provided the Attorney General with an
intelligible principle to follow.” (footnote omitted) (collecting cases)); Parks, 698
F.3d at 8 (“All other circuits that have addressed the issue [as to SORNA] have
rejected the delegation objection, which modern case law tends regularly to
disfavor.”); cf. United States v. Dixon, 551 F.3d 578, 583–84 (7th Cir. 2008)
(“Likewise without merit is his argument that for Congress to delegate to an
official of the executive branch the authority to fill out the contours of a statute
violates the separation of powers. It is commonplace and constitutional for
Congress to delegate to executive agencies the fleshing out of criminal statutes by
means of regulations.”), rev’d on other grounds sub nom., Carr v. United States,
17
560 U.S. 438 (2010). 5
As even Mr. Rickett must concede, this abundant authority, which upholds
SORNA in the face of nondelegation challenges, provides “strong evidence that
the error is not plain.” Aplt. Opening Br. at 9. When combined with the lack of
controlling precedent favorable to Mr. Rickett from the Supreme Court or our
court, this body of adverse authority is fatal to Mr. Rickett’s claim. See United
States v. Rawlings, 522 F.3d 403, 407 (D.C. Cir. 2008) (“Given the unanimous
view of ten sister circuits and the absence of law in this Circuit, [defendant]
cannot establish that the trial judge’s practice constituted an error that was
‘plain’ or ‘obvious’ . . . .” (quoting United States v. Spriggs, 102 F.3d 1245, 1260
(D.C. Cir. 1996)).
Despite the clear weight of appellate authority against him, Mr. Rickett
attempts to salvage his claim by pointing to the concurring and dissenting
opinions of several jurists who have noted a potential delegation problem with
§ 16913(d)’s grant of authority to the Attorney General. 6 However, to render an
5
A panel of the Fourth Circuit also reached this conclusion. See United
States v. Stewart, 461 F. App’x 349, 350–51 (4th Cir.) (per curiam), cert. denied, --- U.S.
----, 132 S. Ct 2446 (2012).
6
For example, Mr. Rickett points to Judge Gorsuch’s concurring opinion in
Hinckley—decided before the Supreme Court’s decision in Reynolds—in which Judge
Gorsuch suggested reading SORNA broadly, so that it applied to pre-Act offenders by its
own terms. See Hinckley, 550 F.3d at 948 (Gorsuch, J., concurring). Judge Gorsuch
(continued...)
18
alleged error “clear” or “obvious,” Mr. Rickett needs controlling Supreme Court
or Tenth Circuit precedent, or a hefty weight of controlling authority from other
circuits. However, a concurring opinion only creates controlling law in limited
circumstances involving a fragmented opinion, see Large v. Fremont Cnty., 670
F.3d 1133, 1141–42 (10th Cir. 2012) (discussing and applying the rule of Marks
v. United States, 430 U.S. 188 (1977), which explicates the conditions under
which concurring opinions are accorded controlling weight); see also United
States v. Williams, 468 F. App’x 899, 910 n.15 (10th Cir. 2012) (“[A]bsent a
fragmented opinion, a concurring opinion does not create law.”), and Mr. Rickett
6
(...continued)
preferred this reading under the canon of constitutional avoidance; otherwise, he said, §
16913(d) would give the Attorney General “unfettered discretion to determine both how
and whether SORNA [is] to be retroactively applied . . . [w]ithout any discernible
principle to guide him or her in the statute.” Id. (first alteration in original) (emphases
omitted) (quoting United States v. Madera, 528 F.3d 852, 858 (11th Cir. 2008)) (internal
quotation marks omitted). Later, Judge Raggi of the Second Circuit advocated a similar
approach. See United States v. Fuller, 627 F.3d 499, 510 (2d Cir. 2010) (Raggi, J.,
concurring) (reading SORNA, by its terms, to exempt pre-Act offenders because “I do not
see that Congress provided any intelligible principle in the statute to guide the Attorney
General in exercising such putative delegated legislative authority”), vacated and
remanded, 132 S. Ct. 1534 (2012), for further consideration in light of Reynolds, 132 S.
Ct. 975. In Reynolds itself, Justice Scalia (joined by Justice Ginsburg) dissented,
criticizing the Court’s reading as “sailing close to the wind.” Reynolds, 132 S. Ct. at 986
(Scalia, J., dissenting). “[I]t is not entirely clear to me,” Justice Scalia averred, “that
Congress can constitutionally leave it to the Attorney General to decide—with no
statutory standard whatever governing his discretion—whether a criminal statute will or
will not apply to certain individuals.” Id. However, as discussed above, whatever the
persuasive value of these concurring and dissenting opinions, they do not make SORNA’s
constitutional infirmity “plain” (i.e., clear or obvious).
19
does not suggest that those circumstances are present here. Furthermore, it goes
without saying that dissenting opinions cannot be the source of controlling law.
Accordingly, Mr. Rickett’s reliance here on concurring and dissenting opinions is
unavailing. Moreover, as noted, the uniform view of our sister circuits stands
against Mr. Rickett. Thus, not only is it far from well-settled under the law of the
Supreme Court and the Tenth Circuit that Mr. Rickett’s nondelegation argument
is legally viable, but there also is virtually no support for Mr. Rickett’s position
in other circuits. In sum, Mr. Rickett’s claim fails under the second prong of
plain-error review, and our analysis need go no further.
III
For the foregoing reasons, we AFFIRM Mr. Rickett’s conviction and the
district court’s resulting criminal judgment.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
20