United States v. Ambert

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAR 6, 2009
THOMAS K. KAHN
No. 08-13139
CLERK
________________________

D. C. Docket No. 07-00053-CR-4-SPM-WCS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GENE FELIX AMBERT,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Northern District of Florida
_________________________

(March 6, 2009)

Before MARCUS, ANDERSON and CUDAHY,* Circuit Judges.

*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
MARCUS, Circuit Judge:

Defendant Gene Felix Ambert appeals from the district court’s denial of his

motion to dismiss the charges levelled against him for failing to register as a sex

offender under the Sex Offender Registration and Notification Act (“SORNA”) in

violation of 18 U.S.C. § 2250(a). Ambert argues that he is not bound by the criminal

provisions of SORNA. He also challenges the constitutionality of SORNA on the

grounds that it violates the non-delegation doctrine, the ex post facto clause, the

commerce clause, his procedural and substantive due process rights, and his right to

travel. After thorough review, we conclude that Ambert as a sex offender is bound

by SORNA, that the statute is constitutional on its face and as applied to him, and

accordingly we affirm.

The essential factual and procedural history is not disputed. Ambert was

convicted in California in February 1975 of Crimes Against Children and sentenced

to five years’ probation. On December 1, 2005, Ambert completed a Sex Offender

Registration form in California, pursuant to Cal. Penal Code § 290, acknowledging

among other things that he had a lifetime requirement to update his sex offender

registration each year within five days of his birthday, and if he moved to a new state,

to register within ten days in the new state and notify California within five days of

2
the move. Ambert failed to register in California during 2006, and likewise failed to

Ambert moved from California to Tallahassee, Florida in early 2006. A year

and a half later, on July 4, 2007, the Tallahassee Police Department investigated a

lewd and lascivious act committed against a child, and this investigation led them to

the defendant Ambert. In the course of the investigation, the police confirmed that

Ambert was the sole resident of a house in Tallahassee, Florida, and also discovered

that he was listed as having absconded from California’s Sex Offender Registry. On

July 6, 2007, an arrest warrant for Ambert was issued, charging him with failure to

Ambert traveled from Florida back to California on July 9, 2007. He returned

to Florida on July 11, 2007 and was arrested in Jacksonville. On September 18, 2007,

Ambert was charged in a superseding federal indictment filed in the United States

District Court for the Northern District of Florida with traveling in interstate

commerce to Florida, and failing to register with the State of Florida, under the Sex

Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250(a).

1
Florida Statute § 943.0435 requires, inter alia, that sex offenders register in person at
the sheriff’s office in the county in which they have a permanent or temporary residence within
48 hours of establishing a residence in Florida.

3
Ambert moved to dismiss the indictment, arguing that the indictment was

improper because Congress did not intend SORNA to apply to his offense based on

his dates of travel. Moreover, he claimed that SORNA was unconstitutional because

the statute amounted to: 1) an excessive delegation of legislative authority; 2) an

impermissible ex post facto law; 3) a violation of the commerce clause; 4) a violation

of his procedural and substantive due process rights; 5) an impermissibly vague travel

requirement; and 6) a violation of his right to travel.

Soon thereafter, the district court denied the defendant’s motion to dismiss.

Ambert entered a conditional plea of guilty pursuant to an agreement that allowed

him to preserve the right to appeal the denial of his motion to dismiss. See Fed. R.

Crim. P. 11(a)(2). On April 21, 2008, he was sentenced to a thirty-seven month term

of imprisonment and a twenty-five year term of supervised release. This timely

appeal followed.

II.

We review a district court’s denial of a motion to dismiss for abuse of

discretion. See United States v. Madera, 528 F.3d 852, 854 (11th Cir. 2008).

However, this appeal raises a number of issues concerning statutory interpretation and

constitutional law, which we review de novo. United States v. Castro, 455 F.3d 1249,

1251 (11th Cir. 2006).

4
SORNA was enacted in July 2006 “to protect the public from sex offenders and

offenders against children . . .” by establishing “a comprehensive national system for

the registration of those offenders.” 42 U.S.C. § 16901. Indeed, the statute was

designed “to track the interstate movement of sex offenders.” United States v.

Howell, 552 F.3d 709, 716 (8th Cir. 2009). Pertinent to the resolution of this appeal,

SORNA § 16913 delineates when and how a sex offender must register under the Act.

It states:

(a) In general

A sex offender shall 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. For initial registration purposes only, a sex
offender shall also register in the jurisdiction in which
convicted if such jurisdiction is different from the
jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register -- (1) before
completing a sentence of imprisonment with respect to the
offense giving rise to the registration requirement; or (2)
not later than 3 business days after being sentenced for that
offense, if the sex offender is not sentenced to a term of
imprisonment.

A sex offender shall, not later than 3 business days after
each change of name, residence, employment, or student
status, appear in person in at least 1 jurisdiction involved
5
pursuant to subsection (a) of this section and inform that
jurisdiction of all changes in the information required for
that offender in the sex offender registry. That jurisdiction
shall immediately provide that information to all other
jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply
with subsection (b) of this section

The Attorney General shall have the authority to specify
the applicability of the requirements of this subchapter to
sex offenders convicted before July 27, 2006 or its
implementation in a particular jurisdiction, and to prescribe
rules for the registration of any such sex offenders and for
other categories of sex offenders who are unable to comply
with subsection (b) of this section.

(e) State penalty for failure to comply

Each jurisdiction, other than a Federally recognized Indian
tribe, shall provide a criminal penalty that includes a
maximum term of imprisonment that is greater than 1 year
for the failure of a sex offender to comply with the
requirements of this subchapter.

42 U.S.C. § 16913.

SORNA also creates new penalties for individuals who, among other things,

fail to register despite being required to do so. Section 2250(a) provides that:

(a) In general -- Whoever -- (1) is required to register under
the Sex Offender Registration and Notification Act . . .
(2)(B) travels in interstate or foreign commerce . . .; and (3)
knowingly fails to register or update a registration as
required by the Sex Offender Registration and Notification
Act . . . shall be fined under this title or imprisoned not
more than 10 years, or both.
6
18 U.S.C. § 2250(a).

On February 28, 2007, in accordance with the congressional grant of authority

given to him in 42 U.S.C. § 16913(d), the Attorney General enacted 28 C.F.R. § 72.3,

which applied SORNA registration requirements “to all sex offenders, including sex

offenders convicted of the offense for which registration is required prior to the

enactment of that Act.” 28 C.F.R. § 72.3.

Initially, we observe that prior decisions of the Supreme Court and this Court

dispose of Ambert’s claims that SORNA does not apply to him or that it violates his

due process rights, his right to travel, or the ex post facto clause. Nor are we

persuaded that the codification of SORNA exceeds Congress’ commerce clause

power or that it amounts to an improper delegation of congressional power in

violation of separation of powers principles.

A. SORNA’s Applicability to Ambert

First, Ambert argues that § 2250 of Title 18 of the United States Code -- which

made it a crime for anyone who “travels in interstate or foreign commerce” to

knowingly fail to register or update a registration as required by SORNA -- does not

apply to him because his relevant travel occurred before the Attorney General

determined on February 28, 2007 that the statute’s registration requirements apply to

all offenders convicted before July 27, 2006. But, as the district court clearly

7
recognized, the indictment was based in part on Ambert’s travel from Florida to

California and back on July 9-11, 2007, well after the effective date of the statute.

See United States v. Ambert, 2007 WL 2949476, at *5 (N.D. Fla. Oct. 10, 2007)

(unpublished) (“Part of the date that Defendant is accused of violat[ing] SORNA is

‘on or about July 11, 2007.’”). We agree with the trial court that § 2250

unambiguously applies to Ambert -- he had an obligation to register beginning on

February 28, 2007 and traveled in interstate commerce after this date on July 9-11,

2007.

However, even if we were to assume arguendo that Ambert’s relevant travel

occurred before February 28, 2007, our recent decision in United States v. Dumont,

_ F.3d. _, 2009 WL 161864 (11th Cir. Jan. 26, 2009), would be dispositive of

Ambert’s argument. In Dumont, a sex offender convicted of a qualifying offense

before July 27, 2006, and who had traveled in interstate travel prior to February 28,

2007, was successfully prosecuted for failure to register as a sex offender under 18

U.S.C. § 2250 after February 28, 2007. On appeal, he challenged his conviction on

the ground that his interstate travel occurred prior to the Attorney General’s

retroactivity determination. Id. at *1-*2. A panel of this Court squarely rejected this

challenge. We concluded that 28 C.F.R. § 72.3 imposed upon all sex offenders

convicted prior to July 27, 2006 an obligation to register under §16193 beginning on

8
“February 28, 2007, the date of the Attorney General’s retroactivity determination.”

Id. at *2 (citing Madera, 528 F.3d at 857). We observed that “§ 2250 criminalizes a

sex offender’s failure to register [under SORNA] after traveling in interstate or

foreign commerce, and the ‘travels’ language provides a jurisdictional basis.” Id. at

*3 (emphasis added). We held that “the fact that Dumont’s travel to Florida occurred

prior to the retroactivity determination does not preclude his prosecution [under §

2250 of SORNA],” id., and concluded that Dumont violated § 2250 on March 5, 2007

when he: (a) had an obligation to register under SORNA’s general registration

requirements; (b) had previously traveled in interstate travel; and (c) had not

registered within three business days once he had an obligation to register and had

traveled in interstate commerce. Id. at *3-*4.

Under the case law, Ambert had an obligation to register under SORNA

beginning on February 28, 2007 and his failure to do so formed a proper foundation

for a charge levelled under 18 U.S.C. § 2250.

B. Ex post Facto Clause

Ambert also claims that SORNA violates the ex post facto clause, U.S. Const.

art. I, § 9, cl. 3, because it imposed on him a retroactive duty to register and enhanced

the punishment for his 1974 conviction. Our decision in Dumont controls the

resolution of this issue, conclusively rejecting this ex post facto argument. In

9
Dumont, we determined that SORNA did not impose a retroactive duty to register for

prior convicted sex offenders or punish a defendant for actions that occurred prior to

February 28, 2007. Rather, SORNA imposed a duty to register beginning on the date

of the Attorney General’s retroactivity determination (February 28, 2007), and a

violation of the Act only occurred thereafter when the defendant failed to register

after the date the statute became applicable. Dumont, 2009 WL 161864, at *3.

In this case, the superseding indictment charged not only that Ambert failed to

but also that he performed every action necessary for prosecution -- i.e., failing to

Attorney General’s retroactivity determination. The application of SORNA to these

facts does not violate the ex post facto clause.

C. Due Process

Ambert says that SORNA violates his substantive and procedural due process

rights. The crux of the due process claim is the suggestion that the statute violated

Ambert’s rights when it caused his name to be placed on a sex offender registry

without first providing him with a hearing to assess the risk of recidivism and current

dangerousness, or with the opportunity to challenge his prior conviction.

10
The Supreme Court’s precedent reviewing an analogous Connecticut sex

offender registry in Connecticut Department of Public Safety v. Doe, 538 U.S. 1

(2003), essentially forecloses Ambert’s procedural due process claim, and our

precedent reviewing an analogous Florida sex offender registry in Doe v. Moore, 410

F.3d 1337 (11th Cir. 2005), eviscerates his substantive due process claim.

In Connecticut Department of Public Safety v. Doe, the petitioner -- a

purportedly non-dangerous sex offender -- brought a § 1983 action challenging

provisions of Connecticut’s sex offender registry law, which required an offender to

registrants’ names, addresses, photographs, and descriptions on an Internet Website

and make the registry available to the public. The petitioner claimed that posting this

information without a hearing as to dangerousness or recidivism violated his right to

procedural due process. The Court rejected the claim. It found that “the fact that

respondent seeks to prove [in the hearing] -- that he is not currently dangerous -- is

of no consequence under Connecticut’s Megan’s Law . . . [T]he law’s requirements

turn on an offender’s conviction alone -- a fact that a convicted offender has already

had a procedurally safeguarded opportunity to contest.” 538 U.S. at 7.

As a result, the Court concluded that

even if respondent could prove that he is not likely to be
currently dangerous, Connecticut has decided that the
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registry information of all sex offenders -- currently
dangerous or not -- must be publicly disclosed. Unless
respondent can show that that substantive rule of law is
defective (by conflicting with a provision of the
Constitution), any hearing on current dangerousness is a
bootless exercise.

Id. at 7-8 (emphasis omitted). The fact that Ambert seeks to prove, that he is neither

dangerous nor likely to be a repeat offender, is of no moment under SORNA, because

the reporting requirements likewise turn on the offender’s conviction alone -- a fact

that he had a procedurally safeguarded opportunity to contest. Accordingly, we reject

Ambert’s procedural due process claim.

Although the Supreme Court declined to reach the substantive due process

claim in Connecticut Department of Public Safety v. Doe because the appellant had

waived it, we definitively rejected a substantive due process claim reviewing an

analogous Florida statute in Doe v. Moore, 410 F.3d 1337 (11th Cir. 2005). In that

case, ten sex offenders challenged the constitutionality of Florida’s sex offender

registration and notification scheme (“Sex Offender Act”), Fla. Stat. § 943.0435,

which requires any sex offender in Florida to register in person within 48 hours of

release from custody or temporary or permanent change in address, and also obliges

the Department of Law Enforcement to publish the registry information. Appellants

argued that Florida’s Sex Offender Act violated their constitutional rights to due

12
process, equal protection, travel, separation of powers, and freedom from ex post

facto legislation. A panel of this Court rejected each of these claims.

In addressing the appellants’ substantive due process claim based on

publication, we followed the two-step approach set forth by the Supreme Court in

Washington v. Glucksberg, 521 U.S. 702 (1997), to determine whether the statute

must be reviewed under strict scrutiny. First, we crafted a “careful description of the

asserted right.” Moore, 410 F.3d at 1343 (quotation omitted). Second, we determined

“whether the asserted right is one of those fundamental rights and liberties which are,

objectively, deeply rooted in this Nation’s history and tradition, and implicit in the

concept of ordered liberty, such that neither liberty nor justice would exist if they

were sacrificed.” Id. (quotations omitted). We determined that the right asserted was

“the right of a person, convicted of ‘sexual offenses,’ to refuse subsequent registration

of his or her personal information with Florida law enforcement and prevent

publication of this information on Florida’s Sexual Offender/Predator website.” Id.

at 1344. And we concluded that this “right” was not deeply rooted in this Nation’s

history and tradition. Id. Thus, we found that only rational basis scrutiny applied, and

that the restriction in the statute was rationally related to legitimate governmental

interests, including protecting the public from recidivist sex offenders.

13
This Court’s substantive due process analysis in Moore is equally applicable

here. The same putative “right” of a sexual offender to refuse to register and to

prevent publication is at issue in this case under a similar national registration statute,

and the restrictions contained in the federal statute, similarly, are rationally related to

Congress’ legitimate goal in protecting the public from recidivist sex offenders.

Moreover, as we observed in Moore, “a state’s publication of truthful information that

is already available to the public does not infringe the fundamental constitutional

rights of liberty and privacy,” id. at 1345, and therefore a convicted sex offender’s

inability to challenge his conviction before publication does not violate due process.2

D. Right to Travel

Ambert also claims that SORNA violates his right to travel because there are

no sufficiently “weighty concerns” explicated in Regan v. Wald, 468 U.S. 222, 242

(1984), to justify the travel restrictions imposed by SORNA’s registration

requirements.

We addressed the burden imposed on the travel of sex offenders in our review

of the Florida sex offender registry law in Doe v. Moore. There, a panel of this Court

held that the requirement to notify Florida officials in person when changing

2
Ambert does not suggest that the information pertaining to his prior criminal history is
inaccurate, nor for that matter does he challenge his underlying conviction.

14
permanent or temporary addresses did not violate the defendants’ right to travel. Id.

at 1348. We wrote:

Though we recognize this requirement [to notify Florida
officials in person when changing permanent or temporary
addresses] is burdensome, we do not hold it is
unreasonable by constitutional standards, especially in
light of the reasoning behind such registration. The state
has a strong interest in preventing future sexual offenses
and alerting local law enforcement and citizens to the
whereabouts of those that could reoffend. Without such a
requirement, sex offenders could legally subvert the
purpose of the statute by temporarily traveling to other
jurisdictions for long periods of time and committing sex
offenses without having to notify law enforcement.

Id. The same rationale applies here. The requirement to update a registration under

SORNA is undoubtedly burdensome; however, the government’s interest in

protecting others from future sexual offenses and preventing sex offenders from

subverting the purpose of the statute is sufficiently weighty to overcome the burden.

This statute does not violate Ambert’s right to travel.

E. Commerce Clause

Next, Ambert contends that Congress exceeded its commerce clause authority

when it passed § 2250(a) of SORNA because the statute purportedly contains neither

a sufficient nexus to commerce, nor a substantial effect on interstate commerce. We

have not had occasion to address this issue, although several district courts in this

15
Circuit have done so. Most have found SORNA to be a proper regulation under

Congress’ commerce power. See, e.g., United States v. Robinson, 2008 WL 4086474,

at *6 (S.D. Ga. Sept. 2, 2008) (unpublished); United States v. Elliott, 2007 WL

4365599, at *3 (S.D. Fla. Dec. 13, 2007) (unpublished); United States v. Cardenas,

2007 WL 4245913, at *12 (S.D. Fla. Nov. 29, 2007) (unpublished); and United States

v. Mason 510 F. Supp. 2d 923, 932 (M.D. Fla. 2007). One district court, however,

found that SORNA, 42 U.S.C. § 16913 and 18 U.S.C. § 2250, exceeded Congress’

commerce clause authority. United States v. Myers, 2008 WL 5156671 (S.D. Fla.

Dec. 9, 2008) (unpublished).

After thorough review, we conclude that Congress had the commerce power

to enact SORNA. Congress’ commerce clause power is derived from Article I, § 8 of

the United States Constitution, which provides that “[t]he Congress shall have Power

. . . [t]o regulate Commerce with foreign Nations, and among the several States, and

with the Indian Tribes.” U.S. Const. art. I, § 8, cls. 1 & 3. The Supreme Court in

United States v. Lopez, 514 U.S. 549 (1995), synthesized and articulated the

boundaries of this power. In Lopez, the Court addressed the constitutionality of the

Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), which prohibited

possession of a firearm within a thousand feet of a school. In striking down the

statute, the Court observed that there were “three broad categories of activity that

16
Congress may regulate under its commerce power”: (1) “Congress may regulate the

use of channels of interstate commerce”; (2) “Congress is empowered to regulate and

protect the instrumentalities of interstate commerce, or persons or things in interstate

commerce, even though the threat may come only from intrastate activities”; and (3)

“Congress’ commerce authority includes the power to regulate those activities having

a substantial relation to interstate commerce, i.e., those activities that substantially

affect interstate commerce.” Id. at 558-59 (internal citations omitted).

Section 2250 is a proper regulation falling under either of the first two Lopez

categories because it regulates both the use of channels of interstate commerce and

the instrumentalities of interstate commerce. This Court further explained the proper

boundaries of Congress’ ability to regulate the channels and instrumentalities of

interstate commerce in United States v. Ballinger, 395 F.3d 1218 (11th Cir. 2005) (en

banc). In Ballinger, we reviewed among others, the constitutionality of a federal

statute that criminalized church-based arson where the “offense is in or affects

interstate or foreign commerce.” Id. at 1224 (quoting 18 U.S.C. § 247(b)) (emphasis

added). We upheld the statute against a commerce clause challenge, recognizing that

“[p]lainly, congressional power to regulate the channels and instrumentalities of

commerce includes the power to prohibit their use for harmful purposes, even if the

targeted harm itself occurs outside the flow of commerce and is purely local in

17
nature.” Id. at 1226. We further observed that “Congress has repeatedly used this

power to reach criminal conduct in which the illegal acts ultimately occur intrastate,

when the perpetrator uses the channels or instrumentalities of interstate commerce to

facilitate their commission.” Id. “These channels of commerce are the interstate

transportation routes through which persons and goods move. These channels include

highways, railroads, navigable waters, and airspace.” Id. at 1225-26 (internal citations

and quotations omitted). It was the arsonists’ movement in interstate commerce,

rather than the nature of the harm, that was the linchpin of the analysis.

Section 2250 of SORNA easily meets these standards. Section 2250 makes it

a federal crime to fail to register as required under 42 U.S.C. § 16913 only where the

offender “travels in interstate or foreign commerce,” or was convicted of a federal sex

offense. Thus, even if we were to assume that the harms and targeted illegal conduct

were purely local in nature, the use of the channels and instrumentalities of interstate

commerce is necessarily part of the commission of the targeted offense under 18

U.S.C. § 2250. Plainly, § 2250 focuses on sex offenders, like the defendant, who

travel in interstate commerce. In this focus, SORNA is analogous to a statute

prohibiting church-based arson “in or affecting interstate or foreign commerce”

upheld by this Court in Ballinger, and to the Mann Act prohibiting the transport of

women “in interstate commerce” for an immoral purpose, upheld by the Supreme

18
Court long ago in Caminetti v. United States, 242 U.S. 470, 491 (1917). SORNA does

no more than employ Congress’ lawful commerce power to prohibit the use of

channels or instrumentalities of commerce for harmful purposes. Moreover, as we

made it clear in Ballinger, “[i]nstrumentalities of interstate commerce . . . are the

people and things themselves moving in commerce.” Ballinger, 395 F.3d at 1226.

Thus, when a sex offender travels from one state to another, he is an instrumentality

of interstate commerce, and by regulating these persons in SORNA, Congress has

acted under its commerce clause power to regulate an instrumentality.

To the extent the defendant also suggests that § 16913 of SORNA violates the

commerce clause, we remain unpersuaded. The Eighth Circuit Court of Appeals had

occasion to address a similar commerce clause challenge to § 16913 in United States

v. Howell, 552 F.3d 709 (8th Cir. 2009). The court upheld the constitutionality of this

section. We agree with the Eight Circuit’s reasoning and its conclusion.

It has been long recognized that Congress has the power to pass laws or

regulations necessary and proper to carrying out their commerce clause power. In

McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), Chief Justice Marshall

articulated the meaning of the necessary and proper clause, U.S. Const. art. I, § 8, cl.

18, in these enduring terms: “Let the end be legitimate, let it be within the scope of

the constitution, and all means which are appropriate, which are plainly adapted to

19
that end, which are not prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” Under this power textually conferred, Congress may

regulate intrastate activity so long as the means employed by Congress are

“reasonably adapted” to the attainment of a legitimate end under the commerce

power. See United States v. Darby, 312 U.S. 100, 121 (1941).

As the Eighth Circuit recognized, in enacting § 16913 of SORNA, Congress

did not focus on individual local registration as an end in itself, but rather as part of

its goal to create a system to track and regulate the movement of sex offenders from

one jurisdiction to another. See Howell, 552 F.3d at 716. Indeed, SORNA’s

introductory language makes it clear that SORNA was designed to create an interstate

system to counteract the danger posed by sex offenders who slip through the cracks

or exploit a weak state registration system by traveling or moving to another state

without registering therein. Specifically, Congress has said that the purpose of the

statute is “to protect the public from sex offenders and offenders against children” by

“establish[ing] a comprehensive national system for the registration of those

offenders.” 42 U.S.C. § 16901 (emphasis added).

The jurisdictional wording of § 16913 similarly focuses on the movement of

sex offenders across state borders and ensuring registration of offenders moving in

this manner. See Howell, 552 F.3d at 716. Section 16913 requires sex offenders to

20
register and keep their registration current, “in each jurisdiction where the offender

resides, where the offender is an employee, and where the offender is a student”;

requires a new or changed registration “in at least 1 jurisdiction” within three days of

a change in the above status; and requires that jurisdiction to “immediately provide

that information to all other jurisdictions” where the offender must register a change.

42 U.S.C. § 16913(a), (c). Finally, an examination of § 16913 and § 2250 makes the

interstate focus abundantly clear. See Howell, 552 F.3d at 716. Notably, § 16913 does

not contain a federal enforcement provision against individuals who fail to register

locally. The only federal enforcement provision against individuals is found in §

2250, which explicitly subjects state sex offenders to federal prosecution under

SORNA only if they “travel in interstate or foreign commerce” and fail to register

under § 16913. 18 U.S.C. § 2250(2)(b).

Section 16913 is reasonably adapted to the attainment of a legitimate end under

the commerce clause. The requirement that sex offenders register under § 16193 is

necessary to track those offenders who move from jurisdiction to jurisdiction.

F. Non-delegation Doctrine

Finally, Ambert argues that Congress improperly delegated its legislative

authority by allowing the Attorney General to determine the retroactive application

of SORNA. In particular, he challenges SORNA § 16913(d), which reads this way:

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The Attorney General shall have the authority to specify
the applicability of the requirements of this subchapter to
sex offenders convicted before July 27, 2006 or its
implementation in a particular jurisdiction, and to prescribe
rules for the registration of any such sex offenders and for
other categories of sex offenders who are unable to comply
with subsection (b) of this section.

42 U.S.C. § 16913(d).

The non-delegation doctrine is based on the principle of preserving the

separation of powers between the coordinate branches of government. It is derived

from Article 1, Section 1 of the Constitution, which states that “[a]ll legislative

powers herein granted shall be vested in a Congress of the United States, which shall

consist of a Senate and House of Representatives.” U.S. Const. art. I, § 1. And, the

doctrine holds that “Congress manifestly is not permitted to abdicate or to transfer to

others the essential legislative functions with which it is [constitutionally] vested.”

Panama Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935).

Many years ago, when non-delegation arguments were more commonly raised,

the Supreme Court set forth the governing test for determining the constitutionality

of a delegation of authority by Congress to another branch of government in J.W.

Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928). The Court observed that

where Congress has provided an “intelligible principle” for the recipient of the

22
delegated authority to conform to, the legislative action will not amount to a

forbidden delegation of legislative power. Id. at 409.

In the eighty years since the promulgation of the test, the Court has clarified

the meaning of an “intelligible principle” and articulated the boundaries of

permissible delegation. In American Power & Light Co. v. Securities and Exchange

Commission, 329 U.S. 90 (1946), for example, the Court addressed the

constitutionality of § 11(b)(2) of the Public Utility Holding Company Act of 1935.

15 U.S.C. § 79k(b)(2). The Court upheld the statute against a non-delegation

challenge and found that it was “constitutionally sufficient if Congress clearly

delineates the general policy, the public agency which is to apply it, and the

boundaries of this delegated authority.” American Power & Light Co., 329 U.S. at

105; see also Mistretta v. United States, 488 U.S. 361, 372-73 (1989).

In Whitman v. American Trucking Associations, 531 U.S. 457 (2001), the

Court addressed the constitutionality of § 109(b)(1) of the Clean Air Act. Section

109(b)(1) provided the Environmental Protection Agency with the discretion to set

national ambient air quality standards (NAAQS) at levels “requisite to protect the

public health.” 42 U.S.C. § 7409(b)(1). Again, the Court upheld the statute against

a non-delegation challenge finding that the requirement that the EPA set “requisite”

23
air quality standards “fits comfortably within the scope of discretion permitted by our

precedent.” Whitman, 531 U.S. at 475-76.

Indeed, since 1935, the Supreme Court has not struck down a single statute as

an impermissible delegation of legislative power. See A.L.A. Schechter Poultry

Corp. v. United States, 295 U.S. 495, 521, 542 (1935) (striking down § 3 of the

National Industrial Recovery Act of June 16, 1933); Panama Ref. Co., 293 U.S. at

406, 430 (striking down § 9(c) of the National Industrial Recovery Act of June 16,

1933).

We are satisfied that Congress has provided the Attorney General with

“intelligible principles” in the Sex Offender Registration and Notification Act.

Congress has undeniably provided the Attorney General with a policy framework in

§ 16901 to guide his exercise of discretion under § 16913(d); and it has made a series

of legislative judgments in §§ 16911, 16913, 16914 and 2250 that constrict the

Attorney General’s discretion to a narrow and defined category.

In the first place, Congress has broadly set policy goals that guide the Attorney

General in how to apply his discretion. Congress created SORNA with the specific

design to provide the broadest possible protection to the public, and to children in

particular, from sex offenders. Section 16901 expressly sets forth the congressional

purpose in these terms: “In order to protect the public from sex offenders and

24
offenders against children and in response to the vicious attacks by violent predators

against the victims listed below, Congress in this chapter establishes a comprehensive

national system for the registration of those offenders.” 42 U.S.C. § 16901. By setting

forth the broad policy goal of protecting the public and seeking a “comprehensive”

national registry, Congress has suggested that the Attorney General should require

pre-2006 sexual offenders to register to the extent that he determines it would

contribute to the protection of the public and the comprehensiveness of a national sex

offender registry.

A review of the legislative history likewise confirms the broad purpose of the

statute. Senator Hatch, one of the Bill’s co-sponsors, observed that there were

100,000 to 150,00 sex offenders who were failing to comply with state registration

requirements, that the situation was “killing our children,” and that SORNA would

“get tough” on those persons and decrease the number of sex offenders violating

registration requirements. 152 Cong. Rec. S8012, 8013 (daily ed. July 20, 2006).

And, Representative Sensenbrenner stated that SORNA’s registration and data

requirements would “ensure that law enforcement agencies and America’s

communities know where sex offenders live and work . . . [and] make one thing clear

to sex offenders across the country -- you better register, and you better keep the

25
information current, or you are going to jail.” 152 Cong. Rec. H5705, 5722 (daily ed.

July 25, 2006).

In the second place, Congress made virtually every legislative determination

in enacting SORNA, which has the effect of constricting the Attorney General’s

discretion to a narrow and defined category. Thus, for example, Congress defined the

crimes which necessitate registration (42 U.S.C. § 16911); where the offender must

16913(b)); the method of registration (42 U.S.C. § 16913(b),(c)); the nature of

information that registrants must provide (42 U.S.C. § 16914(a)(1)-(7)); the elements

of the new federal crime (18 U.S.C. § 2250(a)); and the penalty for violation (18

U.S.C. § 2250(a)). These legislative determinations, read in pari materia with §

16913(d), have informed the delegation to the Attorney General in a sufficiently clear

way. The Attorney General is left only with the discretion to determine whether this

statute and all of its attendant requirements articulated by the legislature apply to a

particular, capped class of offenders -- i.e. those convicted prior to July 27, 2006.

Congress has unambiguously delineated its general policy, the public agency which

is to apply it, and the boundaries of the delegated authority.3

3
It is also worth noting that in granting the authority to the Attorney General, Congress
was surely aware of the Attorney General’s prior experience and expertise to further guide and
constrain him in the limited exercise of discretion under SORNA. In 2005, a year prior to
SORNA’s enactment, the Attorney General’s office designed and created a national sex offender

26
In short, we hold that Ambert is bound by the Sex Offender Registration and

Notification Act, and that §§ 16193 and 2250 of the statute are constitutional both

facially and as applied. Accordingly, we affirm.

AFFIRMED.

registration database as a “safety resource, identifying location information on sex offenders
residing, working, and going to school not only in their own neighborhoods but in other nearby
states and communities as well.” United States Department of Justice, Dru Sjodin National Sex
Offender Public Website, http://www.ojp.usdoj.gov/smart/pdfs/NSOPWFactSheet.pdf (A copy
of the internet materials cited in this opinion is on file in the Clerk’s Office. See 11th Cir. R. 36,
I.O.P. 10.). By July 1, 2006, prior to the enactment of SORNA, all fifty states took some part in
the national registry. The Attorney General stated that “[t]he full completion of the structure of
the National Sex Offender Public Registry is very good news for parents and law enforcement
officers nationwide,” and he hailed the database as a “clear accomplishment on the side of
protection” in the “constant effort to safeguard our children from sex offenders.” Press Release,
Department of Justice Office of Justice Programs, All 50 States Linked to Department of Justice
National Sex Offender Public Registry Website (July, 3 2006), available at
www.ojp.gov/newsroom/pressreleases/2006/BJA06041.htm (A copy of the internet materials
cited in this opinion is on file in the Clerk’s Office. See 11th Cir. R. 36, I.O.P. 10.).