RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0073p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 11-5237
v.
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Defendant-Appellant. -
DAVID WAYNE FELTS,
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Appeal from the United States District Court
for the Middle District of Tennessee at Cookeville.
No. 10-00002-001—Todd J. Campbell, Chief District Judge.
Decided and Filed: March 12, 2012
Before: BOGGS and GIBBONS, Circuit Judges; and RUSSELL, District Judge.*
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COUNSEL
ON BRIEF: Jude T. Lenahan, Andrew C. Brandon, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Lynne T. Ingram,
ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.
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OPINION
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BOGGS, Circuit Judge. David Wayne Felts was convicted for failing to register
under the Sex Offender Registration Notification Act (“SORNA”) in Tennessee. Felts’s
appeal presents a case of first impression for this Circuit—can an offender be convicted
for failure to register under SORNA if his home state, Tennessee, has not yet completely
implemented the act? Felts challenges the district court’s denial of his motion to dismiss
*
The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
1
No. 11-5237 United States v. Felts Page 2
the indictment. In concert with six other circuits, we hold that SORNA is effective in a
state, even prior to its complete implementation. Felts’s alternate constitutional
arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine,
and the Tenth Amendment—are without merit.
I
Felts served fifteen years of imprisonment for a 1994 conviction for rape of a
child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a
different twelve-year-old victim) on October 26, 1993. After his release, Felts, along
with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan,
Puerto Rico, without notifying the registration authorities in his home state of Tennessee.
Felts was indicted on one count of failing to register under SORNA, in violation of
18 U.S.C. § 2250(a). The district court denied Felts’s motion to dismiss, after which
Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now
appeals the denial of the motion to dismiss.
This court reviews de novo a district court’s purely legal determinations,
including determinations regarding statutory construction and the constitutionality of a
federal statute. United States v. Hart, 635 F.3d 850, 856 (6th Cir. 2011). Because Felts
raises only legal errors, all issues before this court are reviewed de novo.
II
A
Congress passed the Sex Offender Registration and Notification Act (SORNA),
42 U.S.C. § 16901 et seq., on July 27, 2006 for the purpose of “creat[ing] a national
system for the registration of sex offenders.” United States v. Utesch, 596 F.3d 302, 306
(6th Cir. 2010) (citing 42 U.S.C. § 16901). Rather than establishing a federal agency to
implement SORNA, Congress, through its spending power, U.S. Const. Art. I, § 8,
directed all states and the District of Columbia to create local registries that comply with
specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).
No. 11-5237 United States v. Felts Page 3
SORNA imposes an obligation on a sex offender to “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.” 42 U.S.C. § 16913(a). Pursuant
to SORNA, a sex offender is also required, “not later than 3 business days after each
change of name, residence, employment, or student status, to appear in person” to update
his or her registration information. 42 U.S.C. § 16913(c). 18 U.S.C. § 2250(a) mandates
that whoever “is required to register under the Sex Offender Registration and
Notification Act,” is a “sex offender,” and if he “knowingly fails to register or update
a registration as required by the Sex Offender Registration and Notification Act,” he
“shall be fined under this title or imprisoned not more than 10 years, or both.”
The original deadline for states to implement SORNA was July 27, 2009. See
42 U.S.C. § 16924(a)(1)-(2)(“Each jurisdiction shall implement this title before the later
of 3 years after the date of the enactment of this Act [enacted July 27, 2006]”).
Currently, 15 states have “substantially implemented SORNA’s requirements”:
Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi,
Missouri, Nevada, Ohio, South Carolina, South Dakota, Wyoming, and most
saliently, Tennessee. U.S. Dep’t of Justice, SMART Office “Newsroom,”
http://www.ojp.usdoj.gov/smart/newsroom.htm (last visited Mar. 8, 2012). As of the
date of Felts’s federal conviction for failure to register, however, Tennessee had not yet
substantially implemented SORNA. Appellant Br. at 13 (“Though Tennessee’s own sex
registration form includes notification of the federal duty to register and alerts registrants
to possible federal criminal penalties of ‘up to 10 years imprisonment,’ Tennessee has
not yet taken the additional steps required to achieve substantial implementation.”).
No. 11-5237 United States v. Felts Page 4
B
This appeal presents a case of first impression for this circuit1—if Tennessee
failed to implement SORNA, does Felts’s failure to register in Tennessee’s registry
constitute a failure to register as required by SORNA?
The answer to that question—based on case law from all other circuits to look
at this issue—is yes. The duty to register in a state registry is independent of a state’s
degree of implementation of SORNA. 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.”); United States v. George, 625 F.3d 1124, 1128 (9th Cir. 2010) (“Without
regard to whether SORNA is implemented by Washington or any other state, registration
under it is required.”); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir. 2010),
abrogated on other grounds by Reynolds v. United States, 132 S. Ct. 975 (2012); United
States v. Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (“SORNA was not enacted in a
vacuum. To the contrary, every state and the District of Columbia had a sex offender
registration law prior to 2006. An individual may therefore comply with SORNA’s
registration requirements by registering through the state’s sex offender registry, even
if that jurisdiction has not implemented SORNA’s administrative procedures.”) (citations
omitted); United States v. Gould, 568 F.3d 459, 455-56 (4th Cir. 2009) (“We conclude
that the requirement imposed on individuals to register is independent of the requirement
imposed on the States to implement the enhanced registration and notification standards
of SORNA. Accordingly, SORNA’s requirement that a sex offender register applies
whether registration would be accomplished through preSORNA registration facilities
or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939
1
In United States v. Samuels, this court considered a related case where an offender moved from
New York to Kentucky and claimed that “Kentucky law also requires he register as a sex offender, but at
the time he moved to Kentucky, Kentucky law was silent as to his requirement to register under SORNA.”
319 F. App’x 389, 393 (6th Cir. 2009), abrogated on other grounds by United States v. Utesch, 596 F.3d
302 (6th Cir. 2010). In Samuels, this court denied defendant’s due-process challenge, and held that
“Notwithstanding his failure to register, Samuels’s prior knowledge of his duty to register under state law
qualified as effective notice under SORNA”). Ibid. Utesch did not present a challenge based on
Kentucky’s failure to implement SORNA.
No. 11-5237 United States v. Felts Page 5
(10th Cir. 2008), abrogated on other grounds by Reynolds v. United States, 132 S. Ct.
975 (2012) (finding that defendant had “knowledge of his duty to register under similar
state and federal provisions”). Felts cites no contrary precedents.
Felts argues that “SORNA . . . appears to require that persons register under its
provisions only when States actually implement SORNA’s regulatory scheme.”
Appellant Br. at 15. From the context, it appears that by “actually implement,” Felts
means that a state “fully implements” SORNA. This cannot be correct, as at the time of
SORNA’s enactment in 2006, no state’s registry was in compliance with SORNA. For
Felts’s argument to be true, Congress—which provided the states with three years to
comply without penalty—would have effectively rendered SORNA nugatory in any non-
compliant state until 2009.
Or, if a state chooses not to comply with SORNA—its sovereign prerogative,
so long as it is willing to forego federal funding—a resident-sex offender would never
have to register under federal law. See Shenandoah, 595 F.3d at 157 (“New York and
Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego
a portion of their federal funding. This failure to implement a federal law, however,
does not give sex offenders a reason to disregard their federal obligation to update their
state registrations.”). At the time of the enactment of SORNA, “every state and the
District of Columbia had a sex offender registration law” and “an individual may
therefore comply with SORNA’s registration requirements by registering through the
state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s
administrative procedures.” Brown, 586 F.3d at 1349.
We reject Felts’s argument and concur with the reasoning of our sister courts.
The duty of an offender to register is independent of whether or not the state has
implemented SORNA. Even assuming that Tennessee’s registry in 2010 was not up to
SORNA’s standards, Felts still could have registered with it. This much is clear. But
what happens if inconsistencies between the non-complying state and federal regimes
limit the ability of an offender to register?
No. 11-5237 United States v. Felts Page 6
C
Felts’s broader argument—essentially a facial, rather than an as-applied
challenge—is that no one, not just Felts, could be prosecuted for a violation of SORNA
if there is any inconsistency between the federal and non-complying state regimes,
thereby meaning that an offender would lack “fair notice” of what is prohibited. See
United States v. Williams, 553 U.S. 285, 304 (2008) (“A conviction fails to comport with
due process if the statute under which it is obtained 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.”). That is, the requirements of
SORNA may or may not overlap with the existing sex-offender registries in non-
compliant jurisdictions. The two regimes may differ depending on the specific
provisions in question, but generally an inconsistency could take two forms: first, where
the requirements under the state registry exceed those of SORNA, and second, where the
requirements under the state registry are less stringent than the requirements under
SORNA.
1
A case may arise where a non-compliant state-law contains all of the
requirements that SORNA requires, and more. If an offender has fair notice of, and
fulfills all of the requirements under the state law, then by definition, the offender will
fulfill all of the requirements under federal law. Such a regime would not present any
overlap issues. See Shenandoah, 595 F.3d at 157 (“SORNA defines a ‘sex offender
registry’ as ‘a registry of sex offenders, and a notification program maintained by a
jurisdiction.’ 42 U.S.C. § 16911(9). A registry that is operated by a state—like those
operated by New York and Pennsylvania—and maintained after the effective date of
SORNA satisfies this definition.”) In such cases, state registries are effectively
congruent with the requirements of SORNA, and there would be sufficient fair notice
to satisfy due process.
No. 11-5237 United States v. Felts Page 7
2
The second, potentially more problematic, circumstance, occurs where the
requirements under the non-compliant state registry are less onerous than the
requirements under SORNA, and the offender may thus lack fair notice of what federal
law requires. This is what Felts alleges. For example, 42 U.S.C. § 16915(a) lists
different durations of the registration requirement based on the severity of the offense.
For a Tier III sex offender, registration is required for life. Id. § 16915(a)(3). If a non-
implementing state were to require registration for a period less than that mandated by
SORNA, and a state official only informed an offender of the state requirement, would
an offender who stopped registering after the state-prescribed period violate SORNA?
Felts raises an alternate scenario: “A defendant in a State that has not
implemented SORNA and does not require that its sex offenders provide all of the listed
categories . . . would naturally assume that ‘registration’ meant providing more
information than the State required or even permitted.” Appellant Br. at 17. Felts
contends that such a state would be unable to process the additional information, leaving
an offender subject to SORNA without fair notice and unable to fulfill the registration
requirements, through no fault of his own.
The precedents from other circuits largely fail to address circumstances where
an inconsistency between federal and non-complying state regimes would render it
impractical, or even impossible, for an offender to register under federal law. The other
courts that have addressed this issue have seemed to assume that the federal and state
requirements in non-compliant jurisdictions are identical, or perhaps simply similar
enough. This may not always be the case.
However, we need not reach this argument with respect to due process, as Felts’s
own conduct renders this defense unavailable. Under any conceivable definition of the
word “register,” Felts did not register. There is no question that Felts failed at a
minimum to update his address information when he moved, with a minor, to Florida and
Puerto Rico. Felts cites no specific inconsistencies between Tennessee law and SORNA
that would have rendered it “impossible for [him] to comply with SORNA in
No. 11-5237 United States v. Felts Page 8
Tennessee.” Appellant Br. at 17. Failing to actually register lies at the core of all sex-
offender registry offenses, whether the state is SORNA-compliant or not. Felts clearly
did not comply with the Tennessee law in effect at the time, which was consistent with
SORNA insofar as it provided for and required registration with a registry, and thus
there is no due-process problem. This claim fails.
III
Felts also argues that retroactive application of SORNA violates the
Constitution’s Ex Post Facto Clause, as it increases the punishments for Felts’s earlier
crimes. This argument has been consistently rejected. In Smith v. Doe, the Supreme
Court upheld Alaska’s sex-offender-registration statute, finding that it was not punitive,
but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84 (2003).
Relying on Smith, circuit courts have consistently held that SORNA does not violate the
Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.
2010); Guzman, 591 F.3d at 94 (2d Cir. 2010); Shenandoah, 595 F.3d at 158-59;
George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d
199, 203-06 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.
2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008), abrogated on other
grounds by Reynolds v. United States, 132 S. Ct. 975 (2012); Hinckley, 550 F.3d at 936
(10th Cir. 2008). Felts attempts—to little avail—to distinguish SORNA from the Alaska
statute in question, but fails to address the unanimous consensus among the circuits that
SORNA does not violate the Ex Post Facto Clause. SORNA provides for a conviction
for failing to register; it does not increase the punishment for the past conviction. Felts’s
crime of failing to update his sex offender registry after the enactment of SORNA was
entirely separate from his crime of rape of a child and aggravated sexual battery.
IV
Next, Felts argues that SORNA’s “grant of power to the Attorney General to
make it retroactive is unconstitutional” as “this provision effectively delegates
broad-ranging legislative powers to the Attorney General, in violation of the
No. 11-5237 United States v. Felts Page 9
nondelegation doctrine.” Appellant Br. at 24. SORNA delegates to the Attorney
General the authority to decide how the registration requirements will be applied to sex
offenders convicted “before July 27, 2006 or its implementation in a particular
jurisdiction.” 42 U.S.C. § 16913(d). Felts relies on precedents from before the New
Deal’s transformation of the Supreme Court—such as Panama Refining Co. v. Ryan, 293
U.S. 388, 421 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495
(1935)—to bolster his case that “Congress gave the Attorney General sole discretion to
determine who should be subject to SORNA” without a guiding intelligible principle,
thus violating the nondelegation doctrine.
However, in light of post-New Deal cases, such as National Broadcasting Co.
v. United States, 319 U. S. 190, 225-26 (1943), and American Power & Light Co. v.
SEC, 329 U.S. 90, 104 (1946), and more recently, Whitman v. American Trucking
Associations, Inc., 531 U.S. 457 (2001), Congress’s delegations under SORNA possess
a suitable “intelligible principle” and are “well within the outer limits of [the Supreme
Court’s] nondelegation precedents.” Id. at 474. See United States v. Hann, 574 F. Supp.
2d 827, 837 (M.D. Tenn. 2008) (“This delegation is limited in nature and does not afford
the Attorney General the authority to legislate. The court holds that § 16913(d) does not
offend the principles of the non-delegation doctrine.”).
V
Finally, Felts raises a commandeering argument—that is, that the enforcement
of SORNA violates the Tenth Amendment because it “forces Tennessee officials to
register sex offenders in compliance with SORNA’s onerous requirements before the
State of Tennessee has an opportunity to voluntarily comply with SORNA.” Appellant
Br. at 28. The Tenth Amendment provides that “[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.” U.S. Const. amend. X. Under the Tenth
Amendment, federal officers are prohibited from conscripting, or commandeering, state
officials to administer and enforce a federal regulatory program. Printz v. United States,
521 U.S. 898, 935 (1997). Relying on Printz, Felts contends that Congress cannot
No. 11-5237 United States v. Felts Page 10
“compel State officers to procure and accept registrations for a federally mandated sex
offender program that the State has not voluntarily implemented.” Appellant Br. at 30.
The United States counters that Felts “lacks standing to assert SORNA’s alleged
violation.” Appellee Br. at 31. This is no longer an accurate statement of law. The
United States’s brief was filed on June 6, 2011, ten days before the Supreme Court
decided Bond v. United States, 131 S. Ct. 2355 (2011). In Bond, the Court unanimously
held that an individual can have standing to challenge the constitutionality of a act of
Congress that violates the Tenth Amendment. “The individual, in a proper case, can
assert injury from governmental action taken in excess of the authority that federalism
defines. Her rights in this regard do not belong to a State.” Id. at 2363-64. Further,
“Federalism also protects the liberty of all persons within a State by ensuring that laws
enacted in excess of delegated governmental power cannot direct or control their
actions.” Id. at 2364. In short, the Court found that “[f]ederalism secures the freedom
of the individual” and “the individual liberty secured by federalism is not simply
derivative of the rights of the States.” Ibid.
The United States is wrong to assert that Felts does not have an interest in
challenging SORNA. As Justice Kennedy concluded, “Fidelity to principles of
federalism is not for the States alone to vindicate.” Ibid. “Just as it is appropriate for an
individual, in a proper case, to invoke separation-of-powers or checks-and-balances
constraints, so too may a litigant, in a proper case, challenge a law as enacted in
contravention of constitutional principles of federalism.” Ibid. As the Court stressed,
“[t]he structural principles secured by the separation of powers protect the individual as
well.” Id. at 2365.
Like Bond, Felts “is a party to an otherwise justiciable case or controversy, [and]
is not forbidden to object that [his] injury results from disregard of the federal structure
of our Government.” Id. at 2367. “An individual has a direct interest in objecting to
laws that upset the constitutional balance between the National Government and the
States when the enforcement of those laws causes injury that is concrete, particular, and
redressable.” Id. at 2364. For Felts, the injury—incarceration in violation of
No. 11-5237 United States v. Felts Page 11
SORNA—is quite “concrete, particular, and redressable.” An individual can assert that
the enforcement of a law violates the Tenth Amendment, particularly when a defendant
has a significant liberty interest at stake. Because Felts was prosecuted for violating
SORNA, he has standing to challenge the act for being enforced in violation of the Tenth
Amendment.
Nonetheless, Felts’s constitutional claim fails. Under Printz, the “Federal
Government may neither issue directives requiring the States to address particular
problems, nor command the States’ officers, or those of their political subdivisions, to
administer or enforce a federal regulatory program.” Printz, 521 U.S. at 935. However,
SORNA does not fall under the rubric of Printz, but rather relies on Congress’s spending
power. Failure to implement SORNA results in a loss of 10% of federal funding under
the Omnibus Crime Control and Safe Streets Act of 1968. 42 U.S.C. §§ 16924, 16925(a).
Conditioning of funds in this manner is appropriate under South Dakota v. Dole. See
483 U.S. 203, 206-08 (1987) (stating that Congress’s power to condition the receipt of
federal funds under the spending power is valid so long as (1) the spending/withholding
is in the pursuit of “the general welfare”; (2) the conditional nature is clear and
unambiguous; (3) the condition is rationally related to the purpose of the federal interest,
program, or funding; and (4) the conduct required to comply with the condition is not
barred by the constitution itself).
Unlike the situation with the Brady Handgun Violence Prevention Act in Printz,
Congress through SORNA has not commandeered Tennessee, nor compelled the state
to comply with its requirements. Congress has simply placed conditions on the receipt
of federal funds. A state is free to keep its existing sex-offender registry system in place
(and risk losing funding) or adhere to SORNA’s requirements (and maintain funding).
Since Felts’s conviction, Tennessee has come into substantial compliance with SORNA.
The choice is that of the state.
SORNA does not violate the rights of Tennessee, or those of Felts as an
individual, under the Tenth Amendment of the Constitution.
No. 11-5237 United States v. Felts Page 12
VI
The judgment of the district court is AFFIRMED.