UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4412
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CRAIGORY LAMONT WYATT,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:09-cr-00192-REP-1)
Submitted: February 10, 2011 Decided: March 10, 2011
Before NIEMEYER, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Neil H. MacBride, United States Attorney,
Elizabeth C. Wu, Assistant United States Attorney, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Craigory Lamont Wyatt, a convicted sex offender, was
charged with one count of failing to register and 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). * On appeal, Wyatt asserts
that the Attorney General violated the Administrative Procedure
Act (APA) when he made SORNA retroactive without the required
thirty-day comment period and that 18 U.S.C.A. § 2250(a)(2)(B)
exceeds Congress’s power under the Commerce Clause, to the
extent that it limits Wyatt’s right to travel. We affirm.
Wyatt filed a motion to dismiss the indictment in the
district court, arguing that: (i) SORNA’s criminal provision
exceeded Congress’s power under the Commerce Clause; and (ii)
the Attorney General violated the APA, specifically 5 U.S.C.
§ 553 (2006) when he retroactively applied SORNA to offenders
who committed their crimes prior to the enactment of SORNA. In
denying Wyatt’s motion to dismiss the indictment, the district
court recognized that Wyatt’s legal and constitutional
*
SORNA was enacted on July 27, 2006, and created a federal
requirement that sex offenders register in each jurisdiction
where the individual resides, is employed, or is a student. See
42 U.S.C.A. § 16913(a) (West Supp. 2010). SORNA also
criminalized an individual’s failure to register. See
18 U.S.C.A. § 2250(a).
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challenges to SORNA were foreclosed by this court’s decision in
United States v. Gould, 568 F.3d 459 (4th Cir. 2009), cert.
denied, 130 S. Ct. 1686 (2010). Wyatt’s counsel conceded that
Gould resolved the legal challenges contained within the motion
to dismiss and stated that he was preserving the issues for
appeal. The court denied Wyatt’s motion. Wyatt pleaded guilty
pursuant to a written plea agreement, reserving his right to
appeal the district court’s denial of his motion to dismiss.
As Wyatt conceded in the district court, this court
already addressed in Gould whether the Attorney General’s
issuance of the regulations making § 2250 retroactive violates
the APA. See Gould, 568 F.3d at 470 (recognizing that “the
Attorney General had good cause to invoke the exception to
providing the 30-day notice” required under the APA).
Accordingly, Wyatt’s argument is foreclosed by this court’s
holding in Gould. 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.”).
Wyatt also argues that Congress’s authority under the
Commerce Clause impinged on his fundamental right to travel.
This court expressly discussed the interaction of travel and
Congress’s power under the Commerce Clause in Gould, explaining
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that “Congress . . . has the authority to regulate persons in
interstate commerce, especially persons who move from the State
of conviction to another State and there fail to register, as
they use instrumentalities of interstate commerce.” Gould, 568
F.3d at 471 (internal quotation marks omitted). Moreover, SORNA
does not criminalize a sexual offender simply for engaging in
interstate travel. Rather, as we explained, “Congress,
motivated by a desire to prevent sex offenders from traveling
among the States to avoid state registration, used its commerce
power to enact a national program mandating stronger and the
more comprehensive registration system, as contained in SORNA.”
Id. at 474. Thus, although a SORNA violation under §
2250(a)(2)(B) requires interstate travel, it also requires “the
act of failing to register.” Id. at 470. Accordingly, we
conclude that Gould controls this issue and it is therefore
without merit.
We therefore affirm the conviction. 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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