UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5099
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANK COSTA ROGERS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(4:09-cr-00227-TLW-1)
Argued: January 27, 2012 Decided: March 6, 2012
Before GREGORY, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.
ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Susan Zalkin
Hitt, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee. ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Frank Costa Rogers appeals his conviction and twenty-one
month sentence on one count of traveling in interstate commerce
while failing to register as a sex offender in violation of 18
U.S.C. § 2250(a). He argues that certain provisions of the Sex
Offender Registration and Notification Act (“SORNA”), 42 U.S.C.
§ 16901 et seq., are unconstitutional, and that the district
court abused its discretion when it imposed certain conditions
of supervised release. We reject his constitutional challenge to
SORNA but we find merit, in part, in his challenge to the
imposition of two conditions of supervised release. Accordingly,
we affirm in part and vacate and remand in part.
I.
Rogers first contends that the district court erred in
denying his motion to dismiss the indictment. He raises
challenges to the application of SORNA based on the Ex Post
Facto Clause, the Commerce Clause, due process, the non-
delegation doctrine, and the Administrative Procedure Act
(“APA”), specifically 5 U.S.C. § 553. We review the denial of a
motion to dismiss the indictment where the denial depends solely
on questions of law de novo. United States v. Hatcher, 560 F.3d
222, 224 (4th Cir. 2009).
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We note, as Rogers concedes, that we have, in published
authority, rejected virtually identical Ex Post Facto, Commerce
Clause, due process, and APA challenges to SORNA. See United
States v. Gould, 568 F.3d 459 (4th Cir. 2009), cert. denied, 130
S. Ct. 1686 (2010). “[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.” Scotts Co. v. United Indus. Corp., 315 F.3d 264,
271 n.2 (4th Cir. 2002) (internal quotation marks omitted).
Accordingly, we conclude that Rogers’s Ex Post Facto, Commerce
Clause, due process, and APA challenges to SORNA lack merit.
We briefly consider Rogers’s remaining challenge, that in
enacting SORNA, Congress violated the non-delegation doctrine by
impermissibly delegating legislative functions to the Attorney
General, namely, the discretion to determine whether SORNA’s
registration requirements would apply to sex offenders convicted
prior to SORNA’s enactment. Gould did not address this issue,
although this court has, in two non-precedential decisions,
concluded that Congress did not impermissibly delegate
legislative authority to the Executive Branch. See United States
v. Stewart, Nos. 11-4420 & 11-4471, 2012 WL 130746, at *1 (4th
Cir. Jan. 18, 2012) (unpublished); United States v. Burns, 418
F. App’x 209, 211-12 (4th Cir. 2011) (unpublished).
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“We review de novo a properly preserved constitutional
claim.” United States v. Hall, 551 F.3d 257, 266 (4th Cir.
2009). The non-delegation doctrine “is based on the principle of
preserving the separation of powers between the coordinate
branches of government.” United States v. Ambert, 561 F.3d 1202,
1212 (11th Cir. 2009). While Congress may delegate some
functions to the Executive Branch, the Supreme Court has held
that where Congress has delineated an “intelligible principle”
guiding the exercise of that authority, the non-delegation
doctrine is not offended. See J.W. Hampton, Jr., & Co. v. United
States, 276 U.S. 394, 409 (1928). Even a general legislative
directive is a constitutionally sufficient intelligible
principle “if Congress clearly delineates the general policy,
the public agency which is to apply it, and the boundaries of
this delegated authority.” Mistretta v. United States, 488 U.S.
361, 372–73 (1989) (internal quotation marks omitted).
Rogers argues that there is no “intelligible principle” to
guide the Attorney General in the exercise of his discretion to
promulgate rules or otherwise to administer the application of
SORNA. This claim is without merit. We are satisfied that the
persuasive reasoning of the panels in Burns and Stewart,
although those decisions are not controlling, fully disposes of
the claim here. We agree with the views of the panels in Burns
and Stewart, noting Congress’s statement that SORNA’s purpose is
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“‘to protect the public from sex offenders and offenders against
children’ through ‘a comprehensive national system for the
registration of those sex offenders.’” Burns, 418 F. App’x at
211 (quoting 42 U.S.C. § 16901). The Attorney General’s exercise
of discretion is adequately cabined by this clear statement of
purpose. Accord United States v. Guzman, 591 F.3d 83, 93 (2d
Cir.) (concluding that the Attorney General’s delegated
authority is “highly circumscribed” because SORNA “includes
specific provisions delineating what crimes require
registration; where, when, and how an offender must register;
what information is required of registrants; and the elements
and penalties for the federal crime of failure to register”)
(citations omitted), cert. denied, 130 S. Ct. 3487 (2010);
United States v. Whaley, 577 F.3d 254, 264 (5th Cir. 2009)
(same); Ambert, 561 F.3d at 1213–14 (same); cf. Reynolds v.
United States, No. 10-6549, 2012 WL 171120, --- S. Ct. ---
(U.S. Jan. 23, 2012) (assuming validity of Attorney General’s
promulgation of rules under SORNA).
II.
Next, Rogers claims that the district court abused its
discretion when it imposed the following improper conditions of
supervised release: ordering him to submit to substance abuse,
mental health, and sex offender treatment programs (the latter
5
coupled with random polygraph examinations). “District courts
have broad latitude to impose conditions on supervised release,
and so we review such conditions only for abuse of discretion.”
United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009)
(internal quotation marks omitted). The sentencing court may
impose any condition that is reasonably related to the relevant
statutory sentencing factors, which include: “the nature and
circumstances of the offense and the history and characteristics
of the defendant,” 18 U.S.C. § 3553(a)(1); providing “adequate
deterrence,” id. § 3553(a)(2)(B); “protect[ing] the public from
further crimes,” id. § 3553(a)(2)(C); and providing the
defendant with training, medical care, or treatment, id. §
3553(a)(2)(D). Armel, 585 F.3d at 186.
The sentencing court must also ensure that the condition
“involves no greater deprivation of liberty than is reasonably
necessary” to afford adequate deterrence, protect the public
from further crimes, and to provide the defendant with training,
care or treatment. 18 U.S.C. § 3583(d)(2); United States v.
Dotson, 324 F.3d 256, 260-61 (4th Cir. 2003). The conditions
must also be consistent with Sentencing Commission policy
statements. 18 U.S.C. § 3583(d)(3). A particular restriction
does not require an “offense-specific nexus,” United States v.
Perazza-Mercado, 553 F.3d 65, 70 (1st Cir. 2009), but the
sentencing court must adequately explain its decision and its
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reasons for imposing the chosen conditions, Armel, 585 F.3d at
186.
Guided by the above principles, our review of the record
leads us to conclude that the district court abused its
discretion in its imposition as a condition of supervised
release Rogers’s participation in a sex offender treatment
program (and the related requirement of random polygraph
examinations). Here, the district court simply ordered in the
Judgment Order that, “The defendant shall participate in a sex
offender treatment program, approved by the U.S. Probation
Office,” and that, “The defendant shall submit to random
polygraphs conducted by any person deemed appropriate by the
U.S. Probation Office as a treatment tool to be used in
conjunction with his sex offender treatment program.” J.A. 192.
Although the presentence investigation report indicated
that Rogers’s 1989 criminal sexual conduct conviction arose out
of the forcible rape of an adult female, there was no evidence
before the district court that such an act of violence has
characterized Rogers’s offense behaviors in the many years since
he was released from incarceration. Nor did the government argue
that such a condition was appropriate in the circumstances of
this case. The district court failed even to order that Rogers
first be professionally evaluated for the purpose of obtaining a
reliable expert opinion whether participation in a treatment
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program for sexual offenders actually comported with the needs
of society or of Rogers himself. See United States v. Smith, 655
F.3d 839, 844, 847 (8th Cir. 2011) (sustaining imposition of
condition requiring defendant convicted solely of failure to
register to “undergo a sex offense-specific evaluation and
participate in a sex offender treatment and/or mental health
treatment program approved by the U.S. Probation Officer,” while
observing that passage of twelve years since defendant’s
underlying sex offense “might not by itself support the
condition,” and ultimately concluding that propriety of the
condition was “a close question”) (emphasis added). This failure
is in keeping with the court’s conclusory observation that “the
sex offender treatment will be commensurate with what [is]
appropriate in light of [this] defendant’s record,” J.A. 233,
which is an inadequate basis on which to rest the condition it
imposed.
Even in light of the broad discretion afforded district
courts in their imposition of supervised release conditions, we
fail to see how a practice such as that followed here comports
with the necessity of reasonableness in the imposition of
conditions of release. *
*
Rogers separately challenges the requirement that he
submit to polygraph exams. It is apparent that the district
court coupled this requirement with the requirement that Rogers
(Continued)
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We are persuaded that the district court was on firmer
ground as to its imposition of the remaining challenged
conditions. The court pointed to Rogers’s prior convictions
(including a conviction for armed robbery) to support its
conclusion that mental health treatment is appropriate. The
district court relied on U.S. Sentencing Guidelines Manual §
5D1.3(D)(5), which states that “[i]f the court has reason to
believe that the defendant is in need of psychological or
psychiatric treatment” then mental health treatment should be a
condition of supervised release. The court noted the age of the
prior convictions, but stated that “if [Rogers] made
improvements in connection with those convictions, then those
who are experts can address that and determine what would be
appropriate for mental health treatment, in light of those
conditions on the record.” J.A. 236. We were advised by counsel
at oral argument that Rogers’s objection to mental health
participate in a sex offender treatment program. We specifically
addressed the use of polygraph examinations as a condition of
supervised release in Dotson, and upheld the use of polygraph
testing as a condition of supervised release, observing that 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.” 324 F.3d at 261. Nonetheless,
because we conclude that the blanket imposition of a sex
offender treatment program in the circumstances here constitutes
an abuse of discretion, we similarly strike the “random
polygraph” requirement.
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treatment is less than intense and that he has adjusted well to
supervision. Given the district court’s broad discretion, we
decline to conclude that the court erred in this regard.
Finally, Rogers suggests that there are “less restrictive”
options for drug testing that the court should have considered.
Appellant’s Br. 40. He does not elaborate as to what those
options are, or why it was an abuse of the district court’s wide
latitude to decline to employ them. Therefore, we discern no
abuse of discretion as to the drug testing requirement.
III.
For the reasons set forth, we affirm the conviction and so
much of the judgment as imposed as special conditions of
supervised release participation in a mental health and a drug
treatment program. We conclude, however, that the district court
abused its discretion in its singular reliance on a decades old
sexual assault conviction to order as a special condition of
supervised release that Rogers participate in a sex offender
treatment program (and the related requirement of random
polygraphs). As to the latter, we vacate the judgment and remand
for the entry of a modified judgment striking those conditions
of supervised release.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART
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