Case: 13-30691 Document: 00512559224 Page: 1 Date Filed: 03/12/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-30691 March 12, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
NOBRYAN MCGEE,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:12-CR-292-1
Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Nobryan McGee (“McGee”) pleaded guilty to one
count of failing to register as a convicted sex offender in violation of the Sex
Offender Registration and Notification act (“SORNA” or “the Act”), 18 U.S.C. §
2250(a). 1 The district court upwardly varied from the United States
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1“Under SORNA, a person convicted of a sex offense is required to register as a sex offender
and to keep the registration current in each jurisdiction where the offender resides.” United
States v. Hoang, 636 F.3d 677, 679 (5th Cir. 2011) (citing 42 U.S.C. § 16913). “It is a criminal
offense, punishable by up to ten years of imprisonment, for anyone who is required to register
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Sentencing Guidelines (“Guidelines”) in sentencing McGee to 84 months of
imprisonment, to be followed by a lifetime term of supervised release. With
respect to supervised release, the district court imposed several special
conditions, including prohibiting McGee from possessing, viewing, receiving,
or transmitting any “sexually arousing material.” As a part of this restriction,
the district court ordered him to install “filtering software on any computer he
possesses or uses which will monitor/block access to sexually oriented
websites.” McGee challenges the reasonableness of his term of imprisonment
and the special conditions regarding sexually arousing material. He further
argues that the district erred in denying his motion to dismiss the indictment,
contending that Congress improperly delegated to the Attorney General the
authority to determine whether SORNA retroactively applies to persons who
were convicted before its effective date. We affirm the district court’s sentence
and judgment.
I. FACTS AND PROCEEDINGS
At the sentencing hearing for the instant offense, the district court
expressly found that McGee was a “predator.” The court based this finding on
McGee’s significant criminal history: In July 2002, when he was 14 years old,
McGee was charged with two counts of aggravated rape for orally and anally
raping two of his brothers, then six years old and nine years old, respectively. 2
He was adjudicated delinquent and was sentenced to two years of probation in
August 2002. McGee violated the terms of his probation on several grounds,
including his November 2002 arrest for aggravated battery. Following that
and travels in interstate commerce to knowingly fail to register or update a registration.” Id.
(citing 18 U.S.C. § 2250(a)).
2McGee’s presentence investigation report (“PSR”) indicates that he had raped his brothers
previously, approximately one year prior to his arrest in July 2002.
2
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arrest, he was adjudicated delinquent in January 2003 for the offense of sexual
battery and was sentenced to a term of imprisonment not to exceed two years.
While in custody, McGee received 54 disciplinary infractions for such behavior
as aggravated disobedience, destruction of property, and aggravated sex
offenses. 3 He was released from incarceration in December 2004.
Less than two months later, McGee was arrested for raping his 15-year-
old brother. In March 2006, he pleaded guilty to simple rape and was
sentenced to a five-year term of imprisonment, which was suspended, and he
was placed on probation for five years. McGee was also required to register as
a sex offender for life. Five months after that, McGee’s probation was revoked
because he failed to register as a sex offender, absconded from probation, failed
to participate in treatment, and had contact with his victim. In August 2006,
he was ordered to serve the original sentence of five years of imprisonment.
McGee was again released, this time in April 2010. One month later, he
was arrested for again failing to register as a sex offender. He pleaded guilty
and was sentenced to two years of imprisonment. He was next released from
incarceration in May 21, 2012, and that same day registered as a convicted sex
offender with the Bossier Parish (Louisiana) Sheriff’s Department (“BPSD”).
McGee did not, however, pay the associated community notification fee
required under Louisiana law because he did not have the funds to do so. The
BPSD granted him an extension to pay the fee. When McGee failed to make
payment, an arrest warrant issued for his failure to register as a sex offender.
Unbeknownst to the BPSD, McGee left Louisiana and traveled to
Arkansas, 4 in violation of federal law, after his release in May 2012. The BPSD
3 These “aggravated sex offenses” include behavior such as masturbating in public view of
the institution’s staff and “touching people in showers.”
4 McGee likewise did not register as a sex offender in Arkansas.
3
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eventually located McGee in August 2012. When officers attempted to arrest
him, McGee fled on foot and had to be tackled before he could be taken into
custody. As a result, he was charged with resisting an officer with force or
violence, in violation of Louisiana law. 5 A federal grand jury returned a one-
count indictment charging him with failure to register as a sex offender in
violation of SORNA.
McGee moved to dismiss the indictment, asserting that Congress
improperly delegated to the Attorney General the authority to determine
whether SORNA would apply retroactively to persons, such as he, who were
convicted before the Act became law. He argued that SORNA was
unconstitutional because it violated the non-delegation doctrine of Article I,
sections 1 and 8 of the United States Constitution. The district court denied
the motion, reasoning that McGee’s argument was foreclosed by our decision
in United States v. Whaley. 6 McGee then entered a conditional guilty plea
pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, reserving
the right to appeal the district court’s denial of his motion to dismiss the
indictment.
The probation officer conducted a presentence investigation and
calculated McGee’s advisory Guidelines range to be 18 to 24 months of
imprisonment. The PSR also identified several grounds for a variance under
18 U.S.C. § 3553(a) (“§ 3553(a)”) for the district court to consider in imposing
sentence. At McGee’s sentencing hearing, the district court adopted the PSR’s
factual findings and concluded that, in light of the “special circumstances
presented by th[e] defendant,” the Guidelines’ recommended sentence was
5McGee’s counsel informed the district court at sentencing that McGee pleaded guilty to this
charge and received a three-year sentence.
6 577 F.3d 254 (5th Cir. 2009).
4
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“woefully inadequate.” The district court varied upward, sentencing McGee to
an 84-month term of imprisonment and a lifetime term of supervised release,
subject to several special conditions that are addressed below. McGee objected
to the length of his term of imprisonment and specific special conditions
regarding sexually arousing material. The district court denied the objections
and entered judgment.
McGee timely filed a notice of appeal, and he presents three questions
for our consideration: (1) Is his 84-month, above-Guidelines sentence
substantively unreasonable; (2) are the special conditions prohibiting him from
possessing or viewing sexually arousing material and requiring the
installation of filtering software reasonably related to the goals of supervised
release; and (3) does SORNA violate the non-delegation doctrine by permitting
the Attorney General to determine whether the Act should be applied
retroactively to sex offenders who were convicted before it became effective?
We answer each in turn.
II. ANALYSIS
A. Substantive Reasonableness
First, McGee claims that his 84-month, above-Guidelines sentence is
substantively unreasonable. He contends that the facts of his case do not
support such a lengthy term of imprisonment and further underscores that he
has not been convicted of a sex offense since he was 16 years old. Following
the Supreme Court’s decision in United States v. Booker, 7 “in which the Court
rendered the Guidelines advisory only, appellate courts review sentences for
reasonableness under an abuse-of-discretion standard.” 8 This review
7 543 U.S. 220 (2005).
8 United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009) (citing Gall v.
United States, 552 U.S. 38, 128 S. Ct. 586, 594 (2007)). Had McGee not timely objected
regarding the reasonableness of his sentence, we would review for plain error. United States
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comprises two steps: “First, the court must ensure that the district court did
not err procedurally by, for example, miscalculating or failing to calculate the
sentencing range under the Guidelines, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly
erroneous facts, or failing to adequately explain the chosen sentence—
including an explanation for any deviation from the Guidelines range.” 9 Then,
“[i]f the sentence is procedurally proper, the court engages in a substantive
review based on the totality of the circumstances.” 10
“Appellate review is highly deferential as the sentencing judge is in a
superior position to find facts and judge their import under § 3553(a) with
respect to a particular defendant.” 11 In determining the substantive
reasonableness of the sentence, we should consider “the totality of the
circumstances, including the extent of any variance from the Guidelines
range.” 12 A major deviation from the Guidelines range requires greater
justification than a minor one. 13 We “may consider the extent of the deviation,”
but we “must give due deference to the district court’s decision that the §
v. Brantley, 537 F.3d 347, 349 (5th Cir. 2008) (citing United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007)).
9Mondragon-Santiago, 564 F.3d at 360 (citing United States v. Cisneros-Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008)). McGee does not argue that the district court committed any
procedural error.
10 Id. (citing Cisneros-Gutierrez, 517 F.3d at 764; Gall, 552 U.S. at 51).
United States v. Key, 599 F.3d 469, 473 (5th Cir. 2010) (quoting United States v. Campos-
11
Maldonado, 531 F.3d 337, 339 (5th Cir. 2008)) (internal quotation marks omitted).
12Brantley, 537 F.3d at 349 (quoting Gall, 552 U.S. at 51) (internal quotations marks
omitted).
13 Gall, 552 U.S. at 50.
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3553(a) factors, on a whole, justify the extent of the variance.” 14 “A non-
Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” 15 Ultimately, the “fact that the appellate court might reasonably have
concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.” 16
McGee contends that there was “nothing extraordinary about th[e]
particular failure to register offense” at issue in this appeal, and thus the
district court abused its discretion in varying upward to sentence him to 84
months of imprisonment. Although he concedes that “he had committed sex
offenses against minors while he was still a minor himself” and that “he had
two prior failure to register convictions in state court,” McGee argues that this
“relatively run-of-the-mill set of circumstances does not support the district
court’s upward” variance. 17 We disagree.
14 Id. at 51.
15United States v. Fraga, 704 F.3d 432, 440 (5th Cir. 2013) (citing United States v. Smith,
440 F.3d 704, 708 (5th Cir. 2006)).
16 Id. (quoting Gall, 552 U.S. at 51) (internal quotation marks omitted).
17Although he objected to his sentence at the sentencing hearing, McGee did not challenge
the facts contained in the PSR, which the court adopted. “When making factual findings for
sentencing purposes, a district court ‘may consider any information which bears sufficient
indicia of reliability to support its probable accuracy.’ ” United States v. Zuniga, 720 F.3d 587,
590 (5th Cir. 2013) (per curiam) (quoting United States v. Harris, 702 F.3d 226, 230 (5th Cir.
2012)). Generally, “a PSR bears sufficient indicia of reliability to be considered as evidence
by the sentencing judge in making factual determinations.” Id. at 591 (quoting Harris, 702
F.3d at 230) (internal quotation marks omitted). Nevertheless, “[b]ald, conclusionary
statements” in a PSR are not sufficiently reliable. Harris, 702 F.3d at 230 n.2 (quoting United
States v. Elwood, 999 F.2d 814, 817-18 (5th Cir. 1993)). “If the factual recitation [in the PSR]
lacks sufficient indicia of reliability, then it is error for the district court to consider it at
sentencing—regardless of whether the defendant objects or offers rebuttal evidence.”
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At the sentencing hearing, the district court recounted the details of
McGee’s criminal history, beginning with the sexual assaults on his younger
brothers, for which the court noted “he was originally charged with two counts
of aggravated rape for oral and anal intercourse.” The court further observed
that, following his initial arrest, McGee began a pattern of quickly reoffending
each time he was released from custody. The court also recognized that, while
in custody, McGee engaged in “disruptive behavior on many levels,” leading to
his placement in “administrative segregation.”
Based on the facts set forth in the PSR, the court found that McGee was
a “predator” who had “a history of aggressive behavior toward the victims,”
“noncompliant behavior with law enforcement,” and “disrespect for the law.”
In sum, because McGee’s “prior history of correctional supervision ha[d] proven
to be unsuccessful,” the court “believe[d] [he] present[ed] a high risk of
recidivism” and found the advisory Guidelines range to be “woefully
inadequate” to “protect the public”—which was “of paramount concern” to the
court. The court therefore sentenced McGee to 84 months of imprisonment in
light of the § 3553(a) factors—most importantly, the nature and circumstances
Zuniga, 720 F.3d at 591 (quoting Harris, 702 F.3d at 231). On the other hand, “if the factual
recitation in the PSR bears sufficient indicia of reliability, then the ‘defendant bears the
burden of demonstrating that the PSR is inaccurate; in the absence of rebuttal evidence, the
sentencing court may properly rely on the PSR and adopt it.’ ” Id. at 591 (quoting United
States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)). Rebuttal evidence must consist of more
than a defendant’s objection; it requires a demonstration that the information is “materially
untrue, inaccurate or unreliable.” Harris, 702 F.3d at 230.
Other than the conclusional statement that “there is no other reliable evidence in the
record” to support his sentence, McGee does not argue that the district court erred in relying
on the information contained in his PSR. As a result, McGee has waived any argument with
respect to this issue. United States v. Banks, 624 F.3d 261, 264 (5th Cir. 2010). Furthermore,
even assuming arguendo McGee had properly briefed this issue, the statements contained in
his PSR had an adequate evidentiary basis with sufficient indicia of reliability and the
district court could rely on them. Harris, 702 F.3d at 231.
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of the offense and the history and characteristics of the defendant, 18 as well as
the need for the sentence imposed (1) to reflect the seriousness of the offense,
promote respect for the law, and provide just punishment for the offense; 19 (2)
to afford adequate deterrence to criminal conduct; 20 (3) to protect the public
from his further crimes; 21 and (4) to provide him with the needed educational
or vocational training, or other correctional treatment. 22
The district court was justified in giving significant weight to McGee’s
criminal history and to his characteristics, which reflected his lack of respect
for the law and likelihood to reoffend. 23 Although McGee’s 84-month sentence
is 60 months greater than the top of the Guidelines range, we have upheld
similar and even greater variances. 24 McGee has not shown that the district
court committed a clear error of judgment in balancing the § 3553(a) factors. 25
Rather, his arguments constitute a mere self-serving disagreement with the
18 18 U.S.C. § 3553(a)(1).
19 18 U.S.C. § 3553(a)(2)(A).
20 18 U.S.C. § 3553(a)(2)(B).
21 18 U.S.C. § 3553(a)(2)(C).
22 18 U.S.C. § 3553(a)(2)(D).
23See United States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006) (holding that a defendant’s
criminal history is a factor that a court may consider in imposing a non-Guidelines sentence).
24See Brantley, 537 F.3d at 348-50 (upholding a variance to concurrent terms of 120 months
and 180 months from a Guidelines range of 41 to 51 months); United States v. Herrera-
Garduno, 519 F.3d 526, 531-32 (5th Cir. 2008) (affirming upward variance from the
Guidelines range of 21 to 27 months to 60 months based on the defendant’s criminal history,
primarily because the district court disagreed with how drug-trafficking offenses are defined
by the Guidelines); United States v. Jones, 444 F.3d 430, 433, 441-42 (5th Cir. 2006)
(affirming an upward variance or departure to 120 months from a Guidelines range of 46 to
57 months).
25 See Smith, 440 F.3d at 708.
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district court. In light of the significant deference that is owed to the district
court’s consideration of the § 3553(a) factors and the stated reasons for its
sentencing decision, McGee fails to demonstrate that the 84-month above-
Guidelines sentence is substantively unreasonable. 26
B. Supervised Release Special Conditions
McGee next challenges the special conditions of supervised release which
prohibit him from possessing or viewing sexually arousing material and
require the installation of filtering software regarding such material. 27
According to McGee, as there was no evidence in the record suggesting that (1)
any kind of sexually arousing material was involved in his current or prior
offenses or (2) he used the internet to assist in his prior offenses, these special
conditions are “unreasonable because they are not tied [to] any aspect of” his
26 See Gall, 552 U.S. at 50-53; Brantley, 537 F.3d at 349.
27 The challenged special conditions provide in full:
(3) The defendant shall neither possess nor have under his
control any material, legal or illegal, that contains nudity or
depicts or alludes to sexual activities or depicts sexually
arousing material. This includes but is not limited to any
material obtained through access to any computer and/or
communication device, including a computer and/or
communication device (includ[ing] a smart phone) for
employment purposes, or any material linked to computer
and/or communication device access or use.
(4) The defendant shall not receive or transmit any sexually
arousing material, including child pornography, via the internet
nor visit any website, including chat rooms or bulletin boards,
containing any sexually arousing material, including child
pornography. The defendant shall install filtering software on
any computer he possesses or uses which will monitor/block
access to sexually oriented websites. The defendant shall pay the
costs of the filtering software/services as directed by U.S.
Probation.
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crimes and are not reasonably related to the statutory supervised release
factors.
When a defendant contemporaneously objects to the imposition of
supervised release conditions, as McGee did here, we review the district court’s
sentence for abuse of discretion. 28 “A district court has wide discretion in
imposing terms and conditions of supervised release. However, this discretion
is limited by 18 U.S.C. § 3583(d), which provides that a court may impose
special conditions of supervised release only when the conditions” are
reasonably related to at least one of four specific § 3553(a) factors. 29 “In
addition to being related to at least one of the four factors, a condition of
supervised release cannot involve a greater deprivation of liberty than is
reasonably necessary for the purposes set forth in § 3553.” 30 Finally, the
“Supreme Court has recognized that the congressional policy in providing for
a term of supervised release after incarceration is to improve the odds of a
successful transition from the prison to liberty.” 31
With respect to whether these special conditions are reasonably related
to the goals of supervised release, we have upheld similar restrictions,
28 United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
29United States v. Carrillo, 660 F.3d 914, 930 (5th Cir. 2011) (quoting United States v. Paul,
274 F.3d 155, 164 (5th Cir. 2001)) (internal quotation marks omitted); Weatherton, 567 F.3d
at 153). These § 3553(a) factors are (1) “the nature and circumstances of the offense and the
history and characteristics of the defendant,” (2) the need “to afford adequate deterrence to
criminal conduct,” (3) the need “to protect the public from further crimes of the defendant,”
and (4) the need “to provide the defendant with needed [training], medical care, or other
correctional treatment in the most effective manner.” 18 U.S.C. § 3553(a)(1) & (a)(2)(B)-(D).
30 United States v. Tang, 718 F.3d 479, 482 (5th Cir. 2013) (quoting 18 U.S.C. § 3583(d)(2))
(internal quotation marks omitted). McGee does not argue that the challenged supervised
release conditions unduly deprive him of his liberty.
Id. (quoting Johnson v. United States, 529 U.S. 694, 708-09 (2000)) (internal quotation
31
marks and brackets omitted).
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although admittedly not on identical facts. 32 In this case, the district court
acknowledged that the record did not reveal any evidence that McGee had
access to child pornography, that such material contributed to his prior
offenses, or that he used the Internet in committing his prior crimes. The court
nevertheless justified the restrictions as “a precaution, purely protective”
because of its concern “about the stimulation factor motivating [McGee] for
additional types of conduct consistent with child molestation.” In light of
McGee’s very troubling, sexually deviant criminal history, we conclude that
the challenged special conditions are reasonably related to the relevant §
3553(a) factors, as they will tend to protect the public from further crimes.
McGee has failed to demonstrate that the district court abused its discretion
in imposing them as special conditions of supervised release. 33
32 See, e.g., United States v. Ellis, 720 F.3d 220, 226-27 (5th Cir.), cert. denied, 2013 WL
4456638 (Dec. 2, 2013) (upholding, in a child pornography case, a special condition
prohibiting the possession of sexually stimulating material because the crime was “sexual in
nature” and the restriction was reasonable to restrict the defendant’s “access to sexually
stimulating material more broadly in an effort to prevent future crimes or aid in his
rehabilitation”); United States v. Hilliker, 469 F. App’x 386, 389 (5th Cir. Apr. 13, 2012)
(unpublished) (upholding, in a SORNA failure-to-register case, special conditions prohibiting
all access to computers, the Internet, cameras, photographic equipment, and other electronic
equipment without the permission of his probation officer, and prohibiting the purchase or
possession of any sexually oriented material, when the defendant admitted that viewing
pornography contributed to his fondling of underage girls); Weatherton, 567 F.3d at 151-52
(upholding, in a case in which the defendant pleaded guilty to making a false FEMA claim,
but also had prior convictions for forcible rape and aggravated burglary, a special condition
prohibiting the possession of any “sexually explicit materials as defined in 18 U.S.C. §
2256(2)”).
33 We recognize that another panel of this court recently vacated and remanded a similar
special condition imposed in a SORNA failure-to-register case. See United States v. Salazar,
__ F.3d __, 2014 WL 700077 (5th Cir. Feb. 24, 2014). After reviewing the record in that case,
the Salazar court determined that it could not uphold the challenged condition as there was
“insufficient evidence of a reasonable relationship between the condition and the statutory
factors.” Id. at *6. The court therefore concluded that “district court abused its discretion by
not explaining how [the condition was] reasonably related to the goals of supervised release.”
Id. at *4 & *6. Here, by contrast, the district court identified McGee’s significant criminal
history involving several sexual assaults and his pattern for quickly reoffending following
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C. SORNA and the Non-Delegation Doctrine
McGee lastly contends that the district erred in denying his motion to
dismiss the indictment, insisting that Congress violated the non-delegation
doctrine of Article I, sections 1 and 8 of the United States Constitution by
giving the Attorney General the authority to determine whether SORNA
applies retroactively to persons like McGee, who were convicted before the Act
became effective. We review such constitutional claims de novo. 34
Although McGee concedes that this claim is foreclosed by our decisions
in Johnson 35 and Whaley, 36 he seeks to preserve the issue for further review.
McGee, therefore, urges that the Supreme Court’s subsequent decision in
Reynolds 37 calls into question our prior holdings. Reynolds, however, neither
explicitly nor implicitly overruled Johnson and Whaley. We are thus bound by
those decisions under our rule of orderliness. 38 The issue is foreclosed. 39
CONCLUSION
We hold that (1) McGee’s sentence is substantively reasonable, (2) the
challenged special conditions are reasonably related to the goals of supervised
release when carefully explaining its reasons for imposing the special conditions and how
they related to the goals of supervised release.
34 United States v. Johnson, 632 F.3d 912, 917 (5th Cir. 2011).
35 Id.
36 United States v. Whaley, 577 F.3d 254, 263-64 (5th Cir. 2009).
37 Reynolds v. United States, 132 S. Ct. 975 (2012).
38United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (“Under our rule of orderliness,
only an intervening change in the law (such as by a Supreme Court case) permits a
subsequent panel to decline to follow a prior Fifth Circuit precedent.”) (citing Jacobs v. Nat’l
Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).
39United States v. Southerland, __ F. App’x __, 2013 WL 5461838, at *1 (5th Cir. Oct. 2, 2013)
(unpublished) (“Reynolds, however, did not explicitly or implicitly overrule Johnson and
Whaley; accordingly, we are bound by those decisions.”).
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release, and (3) SORNA does not violate the non-delegation doctrine. The
district court’s sentence and judgment are, therefore, AFFIRMED.
14