United States v. Pendleton

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 10-1755
____________

UNITED STATES OF AMERICA

v.

THOMAS S. PENDLETON,
Appellant
____________

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF DELAWARE
(D.C. Crim. No. 08-cr-59-1)
District Judge: Honorable Gregory M. Sleet
____________

Submitted Under Third Circuit LAR 34.1(a)
March 14, 2011
____________

Before: RENDELL, BARRY
and CHAGARES, Circuit Judges

(Opinion Filed: April 12, 2011)
____________

Eleni Kousoulis, Esq.
Daniel I. Siegel, Esq.
Office of the Federal Public Defender
800 King Street
Suite 200
Wilmington, DE 19801

Counsel for Appellant
Ilana H. Eisenstein, Esq.
Office of the United States Attorney
1007 North Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19899
-AND-
Jennifer Leonardo, Esq.
United States Department of Justice
Criminal Division, Public Integrity Section
1400 New York Avenue, N.W.
Washington, D.C. 20530

Counsel for Appellee
____________

OPINION OF THE COURT
____________

BARRY, Circuit Judge

Thomas Pendleton, previously convicted of a
qualifying sex offense, was convicted under 18 U.S.C. §
2250(a) for traveling in interstate and foreign commerce and
knowingly failing to register under the Sex Offender
Registration and Notification Act (“SORNA”). On appeal, he
challenges the sufficiency of the evidence at trial, as well as
SORNA‟s constitutionality under the Due Process and
Commerce Clauses. We will affirm.

I. BACKGROUND

The one-count indictment in this case charged that

[f]rom on or about January 28, 2008, to on or
about March 10, 2008, in the State and District
of Delaware and elsewhere, THOMAS S.
PENDLETON, defendant herein, a person
required to register under Sex Offender
Registration and Notification Act, Title 42,
2
 United States Code, Section 16901 et seq.
(“SORNA”), having traveled in interstate and
foreign commerce subsequent to his conviction
for a sex offense, to wit, a conviction on or
about September 30, 1992, in the state of New
Jersey, and a conviction on or about October
16, 2006, in District Court of Kempten,
Germany, did knowingly fail to register and
update a registration as required by SORNA, in
violation of Title 18, United States Code,
Section 2250(a).

(R. at 58.) The parties stipulated that Pendleton was convicted
of the two sex offenses identified in the indictment and agreed
that he was, therefore, a “sex offender” under SORNA.

A. Pendleton’s Registration Status

Pendleton was registered as a sex offender in
Washington, D.C. in 2005 and for some period of time before
then, but in an email dated April 29, 2005, he informed
Yolanda Stokes, the sex offender registry specialist who
oversaw his registry, that he was moving to Delaware. He
wrote,

Effective May 1, 2005, I am moving my
residence from the District of Columbia to the
State of Delaware. I have already been in
contact with the Delaware authority confirming
my responsibilities there. . . . In case you need
it, my new address is: 202 West 14th Street,
Wilmington . . . 19801 [the “Wilmington
Address”]. My cell phone remains unchanged . .
..

(Id. at 237-38 (internal quotation marks omitted).) Stokes
then closed her file on Pendleton, contacted the Delaware
authorities, and sent them information regarding him. In early
2008 and again at the time of trial in April of 2009, an officer
with the Delaware State Police Sex Offender Apprehension
and Registration Unit searched Delaware records and
3
determined that Pendleton never registered as a sex offender
there.

B. Pendleton’s Claims of Delaware Residence

On May 4, 2005, Pendleton applied for a driver‟s
license from the Delaware Division of Motor Vehicles. He
gave the Wilmington Address as his address and signed a
statement in which he certified,

under penalty of perjury, that the information on
this application is true and correct, to the best of
my knowledge, and that I am a bona fide
resident of Delaware. . . . I understand that all
convicted sex offenders must register with the
Delaware State Police within seven days of
coming into the state as explained on this form.

(Id. at 251.) Pendleton also used the Wilmington Address
when he filled out and signed a voter registration form at the
Division of Motor Vehicles on which he stated that he was “a
permanent resident of the State of Delaware at the address
given above [the Wilmington Address].” (Id. at 249.)

Pendleton listed the Wilmington Address as both his
mailing address and permanent address in a passport
application dated October 5, 2005. On October 2, 2006, he
again applied for a passport, with his mailing address in
Kempten, Germany and the Wilmington Address as his
permanent address. In a third passport application on February
29, 2008, within the time period alleged in the indictment, he
listed the Wilmington Address as his current and permanent
address.

Pendleton went to Germany in November of 2005 and
was convicted of a sex offense there on October 16, 2006.
After he served his prison sentence for that offense, he was
deported to the United States, and he arrived at JFK Airport
on January 21, 2008. William McAlpin, an agent with
Immigration and Customs Enforcement, interviewed him
upon his arrival at JFK. Pendleton listed the Wilmington
4
Address on his customs declaration form and told McAlpin
that “he was residing” there and planned to go there after
spending some time visiting friends in New York City. (Id. at
254-55.) He also told McAlpin that the Wilmington Address
“was an apartment within a home owned by one Richard
Bayard.” (Id. at 257.) Pendleton then sent an email to Mr.
Bayard to let him know that he gave the address to customs
officials when he came through the airport, and that “a strange
call might come about me. I explained that it was your home
and did not correct his impression that I rented a room from
you.” (Id. at 300.)

Mr. Bayard owned the single-family home at the
Wilmington Address. His adult daughter, Kate Bayard, lived
there for most of her life with her family and has lived there
alone since 2006. Ms. Bayard testified that Pendleton “was
friendly with [her] parents,” but she does not remember
meeting him. (Id. at 263.) As far as she knows, Pendleton did
not have a key to the house, never stayed there overnight or
asked to do so, and did not come in the house. Ms. Bayard did
not know that Pendleton used her address to obtain a driver‟s
license, apply for a passport, or register to vote.

At some point between 2002 and 2006, Pendleton
asked Mr. Bayard to hold his mail while he was traveling. He
picked up his mail once, and then the Bayards “didn‟t hear
from him for a number of years.” (Id. at 265.) In 2008,
Pendleton contacted Mr. Bayard to pick up his mail, and Ms.
Bayard arranged to leave the mail in the mailbox in front of
the house. Deputy United States Marshal William David had
been investigating Pendleton‟s compliance with SORNA and
made arrangements with Ms. Bayard for Pendleton‟s mail to
be in the mailbox at the Wilmington Address on the afternoon
of March 10, 2008.

David went to the Wilmington Address on the
prearranged day and approached Pendleton, who had checked
the mailbox and was standing on a nearby street corner. After
David identified himself, he asked Pendleton for
identification, and Pendleton produced a Delaware driver‟s
license that was issued on May 13, 2005 with the Wilmington
5
Address on it. When David asked, Pendleton said that he lived
at the Wilmington Address but “had lost his key and was
waiting for the other occupant to get home to let him in.” (Id.
at 283.) Pendleton also showed David his passport and a
membership card for Hostelling International, which had the
Wilmington Address on it. Pendleton said he had just come
from the library in Wilmington but was staying at a hostel in
Philadelphia because he “had business” there. (Id. at 284.) A
receipt showed that he paid to stay at the hostel in
Philadelphia from March 7 to 11, 2008. The hostel later sent
his belongings to the United States Marshal‟s Service, and his
name and the Wilmington Address were written on a luggage
tag on one of those items.

David arrested Pendleton, read him his rights, and told
him that he was charged with a violation of § 2250 for failure
to register as a sex offender. Pendleton first denied being a
sex offender and then said that he was a sex offender but was
not required to register. After he was arrested, the government
executed a search warrant on an email account that he used.
Emails that he sent and received in late January of 2008, after
he was deported from Germany to the United States, show
that he researched sex offender registration requirements in
Delaware and correctly concluded that at that time he was not
required to register under Delaware law.

C. Pendleton’s Travels in Early 2008

Based on his examination of Pendleton‟s emails, travel
documents, and other items, David concluded that after
Pendleton arrived at JFK on January 21, 2008, he stayed in
New York for about five days and then traveled to
Philadelphia on or about January 26th. On February 1st, he
traveled to Delaware, and left for Washington, D.C. on or
about February 4th. According to David‟s testimony and
Amtrak tickets in Pendleton‟s name, Pendleton traveled
starting on February 9th from Washington, D.C. to Chicago;
starting on February 12th from Chicago to Emeryville,
California; starting on February 26th from Los Angeles to
Chicago; and starting on March 2nd from Chicago to
Washington, D.C. On March 7th, he traveled to Philadelphia,
6
and then on March 10th, he traveled to Wilmington and was
arrested. Pendleton had a one-way airplane ticket to travel on
March 12, 2008 from JFK to Prague, Czech Republic.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §
3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18
U.S.C. § 3742. Our review of the Court‟s denial of
Pendleton‟s motion for judgment of acquittal, its construction
of SORNA, and its conclusion that SORNA is constitutional
is plenary.

III. ANALYSIS

The Adam Walsh Child Protection and Safety Act of
2006, which included SORNA,1 “was enacted to close the
loopholes in previous sex offender registration legislation and
to standardize registration across the states.” United States v.
Shenandoah, 595 F.3d 151, 154 (3d Cir. 2010). In response to
previous legislation, by 1996 every state and the District of
Columbia had mandatory sex offender registration laws, but
“SORNA creates a national sex offender registry with the
goal of eliminating inconsistencies among state laws.” Id.

1
Title I of the Adam Walsh Child Protection and
Safety Act of 2006 was itself named the “Sex Offender
Registration and Notification Act” (SORNA), and both 42
U.S.C. § 16913, which contains the sex offender registration
requirement, and 18 U.S.C. § 2250, which contains the
criminal enforcement provision under which Pendleton was
convicted, were enacted through Title I of that Act. Adam
Walsh Child Protection and Safety Act of 2006, Pub. L. No.
109-248, §§ 101, 113, 141, 120 Stat. 587, 590, 593-94, 601-
02 (2006).
As defined by statute, “SORNA” thus includes both §§
16913 and 2250. In United States v. Shenandoah, we upheld
the constitutionality of “SORNA” under the Commerce
Clause, but did not specifically address § 16913. See United
States v. Shenandoah, 595 F.3d 151, 160-61 (3d Cir. 2010).
We will do so here.
7
When Congress enacted SORNA, it was particularly
concerned about the transient nature of many sex offenders
and did not want to lose track of sex offenders when they
moved from state to state. United States v. Howell, 552 F.3d
709, 716-17 (8th Cir. 2009). Recognizing this, the Eighth
Circuit “reject[ed] the suggestion that a savvy sex offender
can move to a different city and avoid having to update his
SORNA registration by sleeping in a different shelter or other
location every night.” United States v. Voice, 622 F.3d 870,
875 (8th Cir. 2010). Given Pendleton‟s extensive travel, the
government argues that a similar concern regarding transience
is present in this case.

Under the relevant provision of 42 U.S.C. § 16913(a),
“[a] sex offender shall register, and keep the registration
current, in each jurisdiction where the offender resides, where
the offender is an employee, and where the offender is a
student.” A “jurisdiction” is, among other things, “[a] State.”
42 U.S.C. § 16911(10)(A). “The term „resides‟ means, with
respect to an individual, the location of the individual‟s home
or other place where the individual habitually lives.” 42
U.S.C. § 16911(13). A sex offender must “appear in person”
in at least one of the applicable jurisdictions “not later than 3
business days after each change of name, residence,
employment, or student status . . . and inform that jurisdiction
of all changes in the information required for that offender in
the sex offender registry.” 42 U.S.C. § 16913(c).

Pendleton was convicted not under § 16913, which
does not have an enforcement provision, but under 18 U.S.C.
§ 2250(a), which provides that a person commits a crime
when he or she “(1) is required to register under the Sex
Offender Registration and Notification Act; (2) . . . (B) travels
in interstate or foreign commerce . . . ; and (3) knowingly fails
to register or update a registration as required by the Sex
Offender Registration and Notification Act.” In other words,
“[o]nce a person becomes subject to SORNA‟s registration
requirements . . . that person can be convicted under § 2250 if
he thereafter travels and then fails to register.” Carr v. United
States, 130 S. Ct. 2229, 2236 (2010).
Pendleton does not dispute on appeal that he was a sex
8
offender under § 16913, that he traveled in interstate and
foreign commerce after those offenses and during the time
period alleged in the indictment, and that he knowingly did
not register as a sex offender in Delaware. Rather, he
challenges the sufficiency of the evidence that he “reside[d]”
in Delaware and was required to register there. He also argues
that he did not have fair notice of a requirement to register in
Delaware, which failure he claims violates the Due Process
Clause, and that § 16913 exceeds Congress‟s power under the
Commerce Clause.2

A. Sufficiency of the Evidence

As we noted above, our review of the District Court‟s
construction of SORNA and denial of Pendleton‟s Rule 29
motion is plenary. We apply, however, a highly deferential
standard of review to the jury‟s verdict.

We must sustain the verdict if there is
substantial evidence, viewed in the light most
favorable to the government, to uphold the
jury‟s decision. We do not weigh evidence or
determine the credibility of witnesses in making
this determination. In making our review we
examine the totality of the evidence, both direct
and circumstantial. We must credit all available
inferences in favor of the government.

United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003)
(internal quotation marks, punctuation, and citations omitted).
We will “sustain the verdict unless it is clear that no rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. . . . [W]e will only find the
evidence insufficient when the prosecution‟s failure is clear.”

2
Pendleton also contends that Congress exceeded its
Commerce Clause power in enacting § 2250, but recognizes
that we upheld the constitutionality of § 2250 in Shenandoah.
He filed a supplemental brief arguing that SORNA violates
the Tenth Amendment, but did not raise that issue in his
opening brief and it is, therefore, waived.
9
United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010)
(citations omitted).

As relevant to the issues before us on appeal,
Pendleton argued to the District Court that the government
failed to prove that he resided in any relevant jurisdiction
during the period identified in the indictment. The Court
noted that at trial the government proceeded on the theory that
Pendleton resided in Delaware. The government sought to
prove this by showing that he used the Wilmington Address
as a “mail drop” and that he repeatedly claimed to reside
there. (R. at 29.)

The District Court assumed but did not decide that
Pendleton did not habitually live at the Wilmington Address.
The Court “consider[ed]” guidelines that the Attorney
General issued several months after Pendleton‟s arrest and
found that the “guidelines seem to imply that . . . a mail drop
or a location that Pendleton identifies as his home address, is
one of the places where a sex offender is required to register
under SORNA.” (Id. at 35-36.) The Court held that the
Wilmington Address was Pendleton‟s “home” under SORNA
because he “not only used [that address] as a mail drop, but
also listed the address as his legal residence on a number of
occasions and for a number of purposes between 2005 and
2008.” (Id. at 36; see also id. at 37 n.3.) Pendleton argues that
he resided in a jurisdiction under SORNA only if he
“habitually live[d]” there and that the Court violated the Ex
Post Facto Clause when it considered the Attorney General‟s
guidelines in his case.

Under SORNA, “[t]he term „resides‟ means, with
respect to an individual, the location of the individual‟s home
or other place where the individual habitually lives.” 42
U.S.C. § 16911(13) (emphasis added). Because Congress
used the phrase “or other,” Pendleton contends that “home” is
at least partially defined as a place where a sex offender
“habitually lives.” He claims that an address that is solely a
mail drop cannot be where a person resides because one does
not habitually live at a mail drop. It is not necessary for us to
reach this issue regarding the interim rule, however, because
10
Pendleton stated numerous times – including during the time
period alleged in the indictment – that he actually lived at the
Wilmington Address, not only that it was his mailing address.
A rational trier of fact could have concluded from those
statements that Pendleton “habitually live[d]” at the
Wilmington Address.

Pendleton contends that, given Ms. Bayard‟s testimony
that he had never been inside or stayed overnight at the
Wilmington Address, the jury could not have found that he
habitually lived at the Wilmington Address. The jury,
however, was free to disregard her testimony. Pendleton
claimed many times over a number of years and during the
period alleged in the indictment – perhaps most notably to the
Deputy United States Marshal who arrested him outside that
address – that he actually lived at the Wilmington Address. A
rational trier of fact could have taken him at his word and
found that he habitually lived there at some point from
January 28 to March 10, 2008.3

Pendleton also argues that a sex offender does not
reside or habitually live somewhere until he or she has been in
that location for three business days, but SORNA does not
contain such a limitation. SORNA requires a sex offender to
“appear in person” in an applicable jurisdiction, including
where he or she resides, “not later than 3 business days after

3
In the alternative, Pendleton argues “that the
government had not met its burden on the „resides‟ element,
because it had not proved that Mr. Pendleton maintained a
dwelling place in the State of Delaware.” (Appellant‟s Br. at
2.) But SORNA does not require a sex offender to register
where he or she “maintain[s] a dwelling place.” SORNA,
rather, mandates that a sex offender register “in each
jurisdiction where the offender resides,” 42 U.S.C. §
16913(a), which is where he has his “home or other place
where [he] habitually lives,” 42 U.S.C. § 16911(13). There
was sufficient evidence not only for a rational juror to
conclude that Pendleton resided at the Wilmington Address
but also that he “habitually live[d]” somewhere in Delaware
and he was, therefore, required to register in that jurisdiction.
11
each change of . . . residence . . . and inform that jurisdiction
of all changes in the information required for that offender in
the sex offender registry.” 42 U.S.C. § 16913(c). SORNA‟s
three-day time period prescribed the time by which Pendleton
was required to register in Delaware, not how long he was
required to stay without interruption in Delaware before it
became the place where he “habitually live[d].” See
Shenandoah, 595 F.3d at 157.

We will affirm the District Court‟s conclusion that
sufficient evidence supported the conviction.

B. Due Process and Fair Notice

There is no dispute that at the time Pendleton was
arrested, he was not required to register as a sex offender
under Delaware law. SORNA imposes a federal requirement
that “[a] sex offender shall register, and keep the registration
current, in each jurisdiction where the offender resides,”
which in this case was Delaware. 42 U.S.C. § 16913(a)
(emphasis added). Pendleton argues that as applied to him,
SORNA violates the Due Process Clause because he did not
have fair notice that federal law required him to register in
Delaware, even though Delaware law did not.

“The Supreme Court has explained that a statute is
unconstitutionally vague if it „fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so
standardless that it authorizes or encourages seriously
discriminatory enforcement.‟” Interactive Media Entm’t &
Gaming Ass’n, Inc. v. Attorney General, 580 F.3d 113, 116
(3d Cir. 2009) (quoting United States v. Williams, 553 U.S.
285, 304 (2008)). Pendleton contends that SORNA fails the
“fair notice” element of this test in his case because it “directs
an individual to register in the sex offender registry of a
jurisdiction which does not require that he register as a sex
offender.” (Appellant‟s Br. at 32.) He argues that a person of
ordinary intelligence would not know that federal law
required him to do so when Delaware law did not.

Federal law, however, often imposes requirements or
12
restrictions that are different from state law. For example,
California and other states “authorize the use of marijuana for
medicinal purposes,” but federal law prohibits that activity.
Gonzales v. Raich, 545 U.S. 1, 5, 7-8 (2005). Medicinal
marijuana users in California and elsewhere could be using
marijuana legally under state law, but still be vulnerable to
federal prosecution. Similarly, Pendleton was not required to
register under Delaware law, but was still vulnerable to
federal prosecution for failing to register.

In Shenandoah, moreover, the defendant argued that
SORNA did not apply to him because New York and
Pennsylvania, the two states in which the government alleged
that Shenandoah was required to register, had not yet
implemented SORNA. We rejected that argument and
concluded that “an independent and federally enforceable
duty is placed on sex offenders to register.” Shenandoah, 595
F.3d at 157. Even if New York and Pennsylvania never
implemented SORNA, such “failure to implement a federal
law . . . [would] not give sex offenders a reason to disregard
their federal obligation to update their state registrations.” Id.
Instead, “[w]hen a sex offender travels in interstate commerce
and disobeys the federal command to keep his or her
registration current, as required by SORNA, he or she is
subject to prosecution.” Id.; see also United States v. Guzman,
591 F.3d 83, 93 (2d Cir. 2010) (“SORNA creates a federal
duty to register with the relevant existing state registries
regardless of state implementation of the specific additional
requirements of SORNA.”).

Put simply, Pendleton‟s federal duty to register under
SORNA was not dependent upon his duty to register under
Delaware law. A person of ordinary intelligence would not
assume that as long as he or she complied with state law on a
particular issue, there would be no risk of running afoul of
federal law. We therefore reject Pendleton‟s argument as to
fair notice under the Due Process Clause.

C. Commerce Clause

13
 Although recognizing that in Shenandoah we upheld
the constitutionality of § 2250 under the Commerce Clause,
Pendleton argues that (1) § 16913 is an unconstitutional
exercise of Congress‟s Commerce Clause power and (2)
because lack of compliance with § 16913 is a necessary
element of § 2250, § 2250 is also unconstitutional.

“It has been long established Congress may forbid or
punish use of interstate commerce „as an agency to promote
immorality, dishonesty or the spread of any evil or harm to the
people of other states from the state of origin.‟” United States
v. May, 535 F.3d 912, 921 (8th Cir. 2008) (quoting Brooks v.
United States, 267 U.S. 432, 436 (1925)), quoted in
Shenandoah, 595 F.3d at 161. Furthermore, “„the authority of
Congress to keep the channels of interstate commerce free
from immoral and injurious uses has been frequently
sustained, and is no longer open to question.‟” Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)
(quoting Caminetti v. United States, 242 U.S. 470, 491
(1917)), quoted in United States v. Lopez, 514 U.S. 549, 558
(1995).

In Lopez, the Supreme Court explained that it had

identified three broad categories of activity that
Congress may regulate under its commerce
power. First, Congress may regulate the use of
the channels of interstate commerce. Second,
Congress is empowered to regulate and protect
the instrumentalities of interstate commerce, or
persons or things in interstate commerce, even
though the threat may come only from intrastate
activities. Finally, Congress‟ commerce
authority includes the power to regulate those
activities having a substantial relation to
interstate commerce, i.e., those activities that
substantially affect interstate commerce.

514 U.S. at 558-59 (citations omitted). In Shenandoah, we
held that SORNA “derives its authority from each prong of
Lopez, and most specifically” the first and second Lopez
14
prongs. 595 F.3d at 161. When a sex offender travels between
states, he or she is a person in interstate commerce who
travels via the use of the channels of interstate commerce. See
id.

Pendleton claims that Shenandoah does not foreclose
his Commerce Clause challenge because in Shenandoah we
did not analyze the constitutionality of § 16913 separately
from § 2250. He contends that § 16913 is beyond the bounds
of the Commerce Clause because it requires registration from
all sex offenders, not just those who travel in interstate
commerce. The government argues that § 16913 is a valid
exercise of Congress‟s Commerce Clause power through the
Necessary and Proper Clause.

Congress has the power “[t]o make all Laws which
shall be necessary and proper for carrying into Execution” the
powers that it has under, inter alia, the Commerce Clause.
U.S. Const. art. I, § 8, cl. 18. Discussing the scope of the
Necessary and Proper Clause many years ago, the Supreme
Court wrote, “Let the end be legitimate, let it be within the
scope of the constitution, and all means which are
appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the
constitution, are constitutional.” M’Culloch v. Maryland, 17
U.S. 316, 421 (1819). Discussing that Clause more recently,
the Supreme Court stated that “the relevant inquiry is simply
„whether the means chosen are reasonably adapted to the
attainment of a legitimate end under the commerce power‟ or
under other powers that the Constitution grants Congress the
authority to implement.” United States v. Comstock, 130 S.
Ct. 1949, 1957 (2010) (quoting Raich, 545 U.S. at 37 (Scalia,
J., concurring in the judgment)) (upholding through the
Necessary and Proper Clause a “federal civil-commitment
statute [that] authorizes the Department of Justice to detain a
mentally ill, sexually dangerous federal prisoner beyond the
date the prisoner would otherwise be released,” id. at 1954)
(further internal quotation marks omitted); see also Raich,
545 U.S. at 35 (Scalia, J., concurring) (“Where necessary to
make a regulation of interstate commerce effective, Congress
may regulate even those intrastate activities that do not
15
themselves substantially affect interstate commerce.”).

In upholding § 16913 under the Commerce Clause and
the Necessary and Proper Clause, the Second Circuit noted
that (1) “§ 16913 does not exist in a vacuum” but rather
complements § 2250; (2) by the time SORNA was enacted,
every state had a sex offender registry, so SORNA was not
solely focused on creating a registry; and (3) the enforcement
provision in § 2250(a) would not affect a sex offender
convicted in state court who did not travel between states or
countries. Guzman, 591 F.3d at 90-91. “Congress‟s goal was
not simply to require sex offenders to register or to penalize
the failure to do so,” but instead “to make sure sex offenders
could not avoid all registration requirements just by moving to
another state.” Id. at 91. The court in Guzman concluded that

[r]equiring sex offenders to update their
registrations due to intrastate changes of address
or employment status is a perfectly logical way
to help ensure that states will more effectively
be able to track sex offenders when they do
cross state lines. To the extent that § 16913
regulates solely intrastate activity, its means „are
reasonably adapted to the attainment of a
legitimate end under the commerce power,‟ and
therefore proper.

Id. (quoting Raich, 545 U.S. at 37 (Scalia, J., concurring in
the judgment)) (further internal quotation marks and citation
omitted).

The Fifth Circuit concluded that § 2250 and § 16913
“are clearly complementary: without § 2250, § 16913 lacks
federal criminal enforcement, and without § 16913, § 2250
has no substance.” United States v. Whaley, 577 F.3d 254,
259 (5th Cir. 2009). That court also recognized that SORNA
was focused “on the problem of sex offenders escaping their
registration requirements through interstate travel.” Id. The
court in Whaley
conclude[d] that requiring sex offenders to
register both before and after they travel in
16
 interstate commerce – which clearly facilitates
monitoring those movements and which has a
minimal practical impact on intrastate sex
offenders (who cannot be punished under
federal law for failure to register unless and
until they travel in interstate commerce) – is
„reasonably adapted‟ to the goal of ensuring that
sex offenders register and update previous
registrations when moving among jurisdictions.

Id. at 261 (footnote omitted).

Relying on M’Culloch and Justice Scalia‟s concurrence
in Raich, the Eighth Circuit observed that

[a] narrow discussion which only analyzes §
16913 under the three categories of Lopez casts
doubt on the constitutionality of § 16913. . . .
However, an analysis of § 16913 under the
broad authority granted to Congress through
both the commerce clause and the enabling
necessary and proper clause reveals the statute
is constitutionally authorized.

Howell, 552 F.3d at 715, quoted in United States v. Vasquez,
611 F.3d 325, 330 (7th Cir. 2010) (upholding the
constitutionality of § 16913). The court in Howell determined
that “SORNA was intended to regulate the interstate
movement of sex offenders” and that § 16913 was “a
reasonable means to track those offenders if they move across
state lines.” Id. at 717; see also Vasquez, 611 F.3d at 331;
United States v. Ambert, 561 F.3d 1202, 1212 (11th Cir.
2009) (“Section 16913 is reasonably adapted to the attainment
of a legitimate end under the commerce clause. The
requirement that sex offenders register under § 16913 is
necessary to track those offenders who move from jurisdiction
to jurisdiction.”). Pendleton cites, and we have found, no
court of appeals that supports his argument that § 16913 is
unconstitutional.
The reasoning in the cases we have discussed above is
congruous with our decision in Shenandoah, and we join our
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sister courts of appeals in holding that § 16913 “is a law made
in pursuance of the constitution,” M’Culloch, 17 U.S. at 424,
because it is “necessary and proper for carrying into
Execution” Congress‟s power under the Commerce Clause,
U.S. Const. art. I, § 8, cl. 18.

IV. CONCLUSION

We will affirm the judgment of conviction.

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