NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-3373
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UNITED STATES OF AMERICA
v.
BOYD DALE STACEY,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(No. 2-12-cr-00015-001)
District Judge: Honorable Cathy Bissoon
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 22, 2014
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Before: McKEE, Chief Judge, CHAGARES, and GARTH, Circuit Judges.
(Filed: June 20, 2014)
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OPINION
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CHAGARES, Circuit Judge.
Boyd Dale Stacey entered a conditional guilty plea to a one-count indictment
charging him with failing to register as a sex offender, and to update his sex offender
registration, between November 4, 2011 and January 2012 in violation of the Sex
Offender Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250(a). For the
following reasons, we will affirm the judgment of conviction.
I.
We write solely for the parties and will therefore recount only those facts that are
essential to our disposition. On September 25, 2000, in the State of Florida, Stacey
pleaded guilty to violating the Computer Pornography and Child Exploitation Prevention
Act, Fla. Stat. § 847.0135(2), and to committing lewd or lascivious conduct, see Fla. Stat.
§ 800.04(6)(a)(2) and (b). He was sentenced to 364 days of imprisonment on each count,
to run consecutively. On January 30, 2002, Stacey registered as a sex offender at the
Pinellas County, Florida Sheriff’s Office. Stacey provided a permanent address in Largo,
Florida and a temporary address in Pittsburgh, Pennsylvania. Appendix (“App.”) 122.
SORNA became effective on July 27, 2006. The statute required individuals
convicted of sex offenses after its enactment to comply with certain federal registration
requirements, see 42 U.S.C. § 16913, and it imposed federal criminal penalties for failure
to register or to update a registration, 18 U.S.C. § 2250(a).1 SORNA delegated to the
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Section 2250(a) provides that any person who:
(1) is required to register under [SORNA];
(2)(A) is a sex offender as defined for the purposes of [SORNA] by
reason of a conviction under . . . the law of any territory or possession of
the United States; or
(B) travels in interstate or foreign commerce . . .; and
(3) knowingly fails to register or update a registration as required by
[SORNA];
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United States Attorney General the authority to determine whether the Act’s registration
requirements would apply to pre-SORNA sex offenders. 42 U.S.C. § 16913(d). On
February 28, 2007, the Attorney General issued an immediately effective Interim Rule
providing that SORNA’s registration requirements also applied to preenactment
offenders. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.
Reg. 8894-01, 8894–95 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3). The Interim Rule
was “finalize[d]” on December 29, 2010, in a Final Rule effective January 28, 2011.
Applicability of the Sex Offender Registration and Notification Act, 75 Fed. Reg. 81849-
01, 81849–50 (Dec. 29, 2010).
At some point, Stacey moved from Florida to Pennsylvania and from Pennsylvania
to Ohio. Stacey failed to complete registration in Pennsylvania at the end of 2011, and he
also did not register in Ohio. On January 25, 2012, a grand jury in the United States
District Court for the Western District of Pennsylvania returned a one-count indictment
charging Stacey with failing to register as a sex offender and to update his sex offender
registration, in violation of 18 U.S.C. § 2250(a), from November 4, 2011 to “in or
around” January 2012. Stacey filed a motion to dismiss the indictment, which the court
denied in an order entered on May 6, 2013. On July 18, 2013, Stacey entered a
conditional guilty plea to the charge. Under the terms of his plea agreement, Stacey
reserved the right to appeal from the District Court’s denial of his motion to dismiss. The
District Court sentenced Stacey to twenty-one months of imprisonment, with credit for
shall be fined under this title or imprisoned not more than [ten] years, or
both.
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time served, plus twenty years of supervised release and a $100 special assessment.
Stacey timely appealed.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have
appellate jurisdiction under 28 U.S.C. § 1291. Our standard of review for a district
court’s denial of a motion to dismiss an indictment is mixed. United States v. Reynolds,
710 F.3d 498, 506 (3d Cir. 2013). We review a district court’s legal conclusions de novo,
and we review its factual determinations for clear error. Id. Our review over
constitutional issues is plenary. United States v. Pendleton, 636 F.3d 78, 82 (3d Cir.
2011).
III.
Stacey’s principal argument is that § 16913(d) violates the nondelegation doctrine,
which requires Congress to provide, at a minimum, an “intelligible principle” to guide the
Attorney General in the exercise of delegated rulemaking authority. Touby v. United
States, 500 U.S. 160, 165 (1991) (quotation marks omitted). While Stacey’s appeal was
pending, this Court decided United States v. Cooper, --- F.3d ---, 2014 WL 1386816 (3d
Cir. Apr. 10, 2014), which held that SORNA does not violate the nondelegation doctrine.
Id. at *9. We are bound by this holding. See Chester ex rel. NLRB v. Grane Healthcare
Co., 666 F.3d 87, 94 (3d Cir. 2011) (“[A] panel of this Court cannot overrule an earlier
binding panel decision; only the entire court sitting en banc can do so.”). Therefore, the
District Court correctly denied Stacey’s motion to dismiss on the nondelegation ground.
IV.
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Stacey also contends that: (1) he did not receive notice of his obligation to register
under SORNA and therefore did not “knowingly” fail to register under § 2250(a)(3),
rendering his prosecution a violation of due process; and (2) SORNA’s application to
pre-Act offenders violates the Ex Post Facto Clause. These arguments are similarly
foreclosed by binding precedent. Namely, in United States v. Shenandoah, 595 F.3d 151
(3d Cir. 2010), abrogated on other grounds by Reynolds v. United States, 132 S. Ct. 975
(2012), this Court held that § 2250(a) “is not a specific intent law” and rejected the
defendant’s argument that his due process rights were violated based on lack of notice
given that “every State had registration requirements for sex offenders” when SORNA
was enacted. Id. at 159, 160. The Court also rejected the defendant’s ex post facto
challenge to SORNA, reasoning that the statute “creates a new punishment for a new
offense, this new offense being traveling in interstate commerce and failing to register as
a sex offender under SORNA after July 27, 2006.” Id. at 158.2 Thus, the District Court’s
2
Stacey contends that the Supreme Court’s decision in Reynolds, and this Court’s
decision in that case on remand, “casts doubt” on whether Shenandoah remains good law.
See Stacey Br. 25, 29, 31 n.12, 35 n.13. In Reynolds, the Supreme Court considered
whether SORNA’s registration requirements applied to preenactment offenders between
July 27, 2006 (when SORNA took effect) and February 28, 2007 (when the Interim Rule
was promulgated). 132 S. Ct. at 979, 980. The Court held that SORNA’s requirements
do not apply to preenactment offenders until the Attorney General “validly specifies”
their applicability, id. at 980, and it remanded for this Court to consider, in the first
instance, whether the Interim Rule set forth a valid specification, id. at 984. On remand,
this Court held that the Interim Rule was promulgated in violation of the Administrative
Procedure Act. 710 F.3d at 502–03. The Supreme Court’s Reynolds decision thus
abrogated our holding in Shenandoah that SORNA’s registration requirements applied to
pre-Act offenders from the date of SORNA’s enactment; it did not affect our due process
and ex post facto holdings. Cf. United States v. Brown, 740 F.3d 145, 148 n.6 (3d Cir.
2014) (citing Shenandoah in declining to address the defendant’s ex post facto and due
process challenges to SORNA).
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denial of Stacey’s motion to dismiss on ex post facto and due process grounds was not
erroneous.
V.
For the foregoing reasons, we will affirm the judgment of conviction.
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