UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4980
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TAMMY L. PAYTON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:12-cr-00111-1)
Submitted: April 4, 2013 Decided: April 15, 2013
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Lex A. Coleman,
Assistant Federal Public Defender, Jonathan D. Byrne, Appellate
Counsel, Charleston, West Virginia, for Appellant. R. Booth
Goodwin, II, United States Attorney, Lisa G. Johnston, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tammy L. Payton was convicted of failing to register
as a sex offender in violation of 18 U.S.C.A. § 2250(a) (West
Supp. 2012) and was sentenced to twelve months of imprisonment.
She challenges her conviction on appeal arguing that the
Attorney General’s issuance of an interim rule and regulations,
making the criminal provisions of the Sex Offender Registration
and Notification Act (“SORNA”) retroactive, violates the
Administrative Procedures Act (“APA”) because the regulations
were issued without a notice and comment period as required
under the APA. See 5 U.S.C. § 553(b)-(d) (2006).
Payton contends that the district court erred in
denying her motion to dismiss the indictment on this basis. We
review de novo the denial of a motion to dismiss the indictment,
where the denial depends solely on questions of law. United
States v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009).
We note, as Payton concedes, that we have, in
published authority, rejected similar Ex Post Facto, Commerce
Clause, due process, and APA challenges to SORNA. See United
States v. Gould, 568 F.3d 459 (4th Cir. 2009). 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 may do that. Scotts Co. v. United
Indus. Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002). Finally,
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we do not find that the Supreme Court’s recent opinion
in Reynolds v. United States, 132 S. Ct. 975 (2012), alters the
validity of our opinion in Gould. Accordingly, we conclude that
Payton’s APA challenges to SORNA lack merit and we affirm her
conviction. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials
before this court, and argument would not aid the decisional
process.
AFFIRMED
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