UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5201
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEITH EUGENE NELSON,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Bluefield. Irene C. Berger,
District Judge. (1:09-cr-00146-1)
Submitted: October 4, 2010 Decided: November 3, 2010
Before MOTZ, SHEDD, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, United States Attorney, Blaire L. Malkin, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Keith Eugene Nelson, a convicted sex offender, was
charged with one count of failing to update his registration as
a sex offender under the criminal provision of the Sex Offender
Registration and Notification Act (“SORNA”), 18 U.S.C.A. § 2250
(West Supp. 2010). Pursuant to a written plea agreement, Nelson
pled guilty to the charged offense, reserving his right to
appeal the district court’s denial of his motion to dismiss the
indictment. He was sentenced to forty-one months’ imprisonment
and a twenty-five-year term of supervised release. Nelson now
appeals, and for the following reasons, we affirm.
Nelson first asserts that SORNA’s criminal provision
exceeds Congress’s power under the Commerce Clause, to the
extent that it limits Nelson’s right to travel, and that the
Attorney General violated the Administrative Procedure Act when
it issued regulations making SORNA’s criminal provisions
retroactive. These arguments are foreclosed by this court’s
opinion in United States v. Gould, 568 F.3d 459, 470-75 (4th
Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010). See Scotts
Co. v. United Indus. Corp., 315 F.3d 264, 271 n.2 (4th Cir.
2002) (“[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.”).
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Nelson also asserts that the district court abused its
discretion by requiring Nelson, as a condition of his supervised
release, to submit to polygraph examinations without specifying
that the results of those examinations not be made public, and
that his twenty-five-year supervised release term is
unreasonable in light of the purposes of sentencing set forth in
18 U.S.C. § 3553(a) (2006). We reject both assertions.
This court specifically addressed the use of polygraph
examinations as a condition of supervised release in United
States v. Dotson, 324 F.3d 256, 261 (4th Cir. 2003). In Dotson,
we upheld the use of polygraph testing as a condition of
supervised release because 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.”
Id. While Nelson concedes that imposition of the condition is
generally reasonable and not an abuse of discretion, he notes
that, in Dotson, the district court had taken the added measure
of directing that the results of any polygraph testing not be
made public. Nelson argues that the potential for disclosure in
his case, where no such specification was made, infringes on his
Fifth Amendment right to be free from self-incrimination.
Here, like in Dotson, the district court made clear at
sentencing that it was imposing submission to polygraph
examinations to monitor Nelson’s compliance with supervised
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release treatment conditions and that such an examination would
be used only for assessment purposes. To the extent Nelson
suggests that potential disclosure of the testing results could
infringe on his Fifth Amendment right to be free from self-
incrimination, such a claim at this juncture is merely
speculative. See United States v. Zinn, 321 F.3d 1084, 1092
(11th Cir. 2003) (“If and when Appellant is forced to testify
over his valid claim of privilege, he may raise a Fifth
Amendment challenge. In the meantime, we can only decide
whether requiring polygraph testing as a condition of supervised
release generally violates the Fifth Amendment so as to amount
to plain error. We hold it does not.”).
Nelson’s claim that the district court erred in
sentencing him to twenty-five years of supervised release is
equally unavailing. Because the length of Nelson’s supervised
release term is part of his sentence, we review the twenty-five-
year term for reasonableness, using an abuse-of-discretion
standard of review. See Gall v. United States, 552 U.S. 38, 51
(2007); United States v. Daniels, 541 F.3d 915, 921 (9th Cir.
2008), cert. denied, 129 S. Ct. 1600 (2009). When reviewing the
substantive reasonableness of the district court’s sentence,
this court must “take into account the totality of the
circumstances, including the extent of any variance from the
Guidelines range. If the sentence is within the Guidelines
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range, the appellate court may, but is not required to, apply a
presumption of reasonableness.” Gall, 552 U.S. at 51.
Because Nelson’s twenty-five-year supervised release
term is well within the statutory maximum term of life, the
supervised release term imposed by the district court is
presumptively reasonable. See 18 U.S.C.A. §§ 2242, 3583(h)
(West 2000 & Supp. 2010) (providing for maximum supervised
release term of life after conviction for sexual abuse under
§ 2242); USSG § 5D1.2(b), p.s. (2009) (“If the instant offense
of conviction is a sex offense, however, the statutory maximum
term of supervised release is recommended.”). Nelson has not
established that his supervised release term is unreasonable
when measured against the § 3553(a) factors.
Based on the foregoing, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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