United States District Court, W.D. Virginia, Abingdon Division
Suzanne Kerney-Quillen, Special Assistant United States
Attorney, Abingdon, Virginia, for United States; Nancy C.
Dickenson, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
P. Jones United States District Judge
defendant has filed a motion to dismiss Count One of the
Indictment on the basis that a provision of the Sex Offender
Registration and Notification Act (“SORNA”), Pub.
L. No. 109-248, tit. I, 120 Stat. 587, 590-611 (2006)
(originally codified at 42 U.S.C. §§ 16901et seq.,
now codified at 34 U.S.C. §§ 20901et seq.),
unconstitutionally delegates congressional authority to the
Attorney General, in violation of the so-called nondelegation
doctrine. For the following reasons, the motion will be
United States alleges the following, which for the purposes
of this motion, the defendant does not contest. The
defendant, Nelson Jose Gonzalez, was convicted in 1993 of a
sex offense in Michigan. After completion of his prison
sentence, Gonzalez registered with Michigan as a sex
offender. In 2017, Gonzalez moved to Virginia, but did not
register there. The Indictment was returned against Gonzalez
in this court charging him with failing to register or update
his sex offender registration as required by SORNA (Count
One), together with the crime of misuse of a Social Security
number (Count Two).
Motion to Dismiss, Gonzalez argues that he cannot be charged
with failing to register as a sex offender because he was
never lawfully required to register under SORNA.
Specifically, he contends that SORNA violates the
nondelegation doctrine. I disagree.
requires sex offenders to initially register in jurisdictions
where the offender resides, is employed, and is a student.
The offender must keep the registration current and report
any change in name, residence, employment or student status.
34 U.S.C. § 20913(a). SORNA also created a separate
federal felony punishable by up to ten years in prison for
offenders who travel in interstate commerce and
“knowingly fail to register or update a registration
as required by [SORNA].” 18 U.S.C. § 2250(a).
Congress did not determine SORNA's applicability to
offenders who had been convicted of a sex offense prior to
its enactment. Instead, the Attorney General, pursuant to the
congressional grant of authority given to him in 34 U.S.C.
§ 20913(d), promulgated 28 C.F.R. § 72.3, which
applies SORNA registration requirements “to all sex
offenders, including sex offenders convicted of the offense
for which registration is required prior to the enactment of
alleges that SORNA's delegation of authority to the
Attorney General to specify the applicability of the
Act's requirements to sex offenders convicted prior to
SORNA violates the nondelegation doctrine.
court of appeals to decide such a nondelegation challenge to
SORNA has rejected it. See e.g., United States v.
Guzman, 591 F.3d 83, 91-93 (2d Cir.), cert.
denied, 561 U.S. 1019 (2010); United States v.
Nichols, 775 F.3d 1225, 1231-32 (10th Cir. 2014);
United States v. Richardson, 754 F.3d 1143, 1145-46
(9th Cir. 2014) (per curiam); United States v.
Cooper, 750 F.3d 263, 266-72 (3d. Cir.), cert.
denied, 135 S.Ct. 209 (2014); United States v.
Goodwin, 717 F.3d 511, 516-17 (7th Cir.), cert.
denied, 134 S.Ct. 334 (2013); United States v.
Kuehl, 706 F.3d 917, 918-20 (8th Cir. 2013); United
States v. Parks, 698 F.3d 1, 7-8 (1st Cir. 2012),
cert. denied, 133 S.Ct. 2021 (2013); United
States v. Felts, 674 F.3d 599, 606 (6th Cir. 2012);
United States v. Whaley, 577 F.3d 254, 262-64 (5th
Cir. 2009); United States v. Ambert, 561 F.3d 1202,
1212-14 (11th Cir. 2009); United States v. Sampsell,
541 Fed.Appx. 258, 259 (4th Cir. 2013) (unpublished) (noting
that the Fourth Circuit has “consistently rejected
similar non-delegation challenges in unpublished
nondelegation doctrine is satisfied when a statutory grant of
authority sets forth an “intelligible principle”
that “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) (quotation marks and
citations omitted). The Supreme Court has found only two
statutes that lacked the necessary “intelligible
principle.” Whitman v. American Trucking
Ass'ns, 531 U.S. 457, 474 (2001) (referencing
A.L.A. Schechter Poultry Corp. v. United States, 295
U.S. 495 (1935) and Panama Ref. Co. v. Ryan, 293
U.S. 388 (1935)).
enacting SORNA, Congress “broadly set policy goals that
guide the Attorney General, ” and it “created
SORNA with the specific design to provide the broadest
possible protection to the public, and to children in
particular, from sex offenders.” Ambert, 561
F.3d at 1213. Additionally, 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.”
Id. at 1214; see Guzman, 591 F.3d at 93
(explaining that Congress outlined the crimes requiring
registration, the circumstances of registration, the
information required to register, and the penalties for not
registering, leaving to the Attorney General's discretion
only the applicability of SORNA to a discrete set of
persons). Moreover, the Supreme Court has upheld delegations
that are much broader than § 20913(d). See Touby v.
United States, 500 U.S. 160, 165 (1991) (upholding the
Attorney General's power to schedule controlled
substances on a temporary basis).
these reasons, I find that the nondelegation doctrine has not
been violated and Count One of the ...