United States v. Pendleton

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-1755

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UNITED STATES OF AMERICA

v.

THOMAS S. PENDLETON,

Appellant

____________

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF DELAWARE

(D.C. Crim. No. 08-cr-59-1)

District Judge: Honorable Gregory M. Sleet

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Submitted Under Third Circuit LAR 34.1(a)

March 14, 2011

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Before: RENDELL, BARRY

and CHAGARES, Circuit Judges

(Opinion Filed: April 12, 2011)

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Eleni Kousoulis, Esq.

Daniel I. Siegel, Esq.

Office of the Federal Public Defender

800 King Street

Suite 200

Wilmington, DE 19801

Counsel for Appellant

Ilana H. Eisenstein, Esq.

Office of the United States Attorney

1007 North Orange Street, Suite 700

P.O. Box 2046

Wilmington, DE 19899

-AND-

Jennifer Leonardo, Esq.

United States Department of Justice

Criminal Division, Public Integrity Section

1400 New York Avenue, N.W.

Washington, D.C. 20530

Counsel for Appellee

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OPINION OF THE COURT

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BARRY, Circuit Judge

Thomas Pendleton, previously convicted of a

qualifying sex offense, was convicted under 18 U.S.C. §

2250(a) for traveling in interstate and foreign commerce and

knowingly failing to register under the Sex Offender

Registration and Notification Act (“SORNA”). On appeal, he

challenges the sufficiency of the evidence at trial, as well as

SORNA‟s constitutionality under the Due Process and

Commerce Clauses. We will affirm.

I. BACKGROUND

The one-count indictment in this case charged that

[f]rom on or about January 28, 2008, to on or

about March 10, 2008, in the State and District

of Delaware and elsewhere, THOMAS S.

PENDLETON, defendant herein, a person

required to register under Sex Offender

Registration and Notification Act, Title 42,

2

United States Code, Section 16901 et seq.

(“SORNA”), having traveled in interstate and

foreign commerce subsequent to his conviction

for a sex offense, to wit, a conviction on or

about September 30, 1992, in the state of New

Jersey, and a conviction on or about October

16, 2006, in District Court of Kempten,

Germany, did knowingly fail to register and

update a registration as required by SORNA, in

violation of Title 18, United States Code,

Section 2250(a).

(R. at 58.) The parties stipulated that Pendleton was convicted

of the two sex offenses identified in the indictment and agreed

that he was, therefore, a “sex offender” under SORNA.

A. Pendleton’s Registration Status

Pendleton was registered as a sex offender in

Washington, D.C. in 2005 and for some period of time before

then, but in an email dated April 29, 2005, he informed

Yolanda Stokes, the sex offender registry specialist who

oversaw his registry, that he was moving to Delaware. He

wrote,

Effective May 1, 2005, I am moving my

residence from the District of Columbia to the

State of Delaware. I have already been in

contact with the Delaware authority confirming

my responsibilities there. . . . In case you need

it, my new address is: 202 West 14th Street,

Wilmington . . . 19801 [the “Wilmington

Address”]. My cell phone remains unchanged . .

..

(Id. at 237-38 (internal quotation marks omitted).) Stokes

then closed her file on Pendleton, contacted the Delaware

authorities, and sent them information regarding him. In early

2008 and again at the time of trial in April of 2009, an officer

with the Delaware State Police Sex Offender Apprehension

and Registration Unit searched Delaware records and

3

determined that Pendleton never registered as a sex offender

there.

B. Pendleton’s Claims of Delaware Residence

On May 4, 2005, Pendleton applied for a driver‟s

license from the Delaware Division of Motor Vehicles. He

gave the Wilmington Address as his address and signed a

statement in which he certified,

under penalty of perjury, that the information on

this application is true and correct, to the best of

my knowledge, and that I am a bona fide

resident of Delaware. . . . I understand that all

convicted sex offenders must register with the

Delaware State Police within seven days of

coming into the state as explained on this form.

(Id. at 251.) Pendleton also used the Wilmington Address

when he filled out and signed a voter registration form at the

Division of Motor Vehicles on which he stated that he was “a

permanent resident of the State of Delaware at the address

given above [the Wilmington Address].” (Id. at 249.)

Pendleton listed the Wilmington Address as both his

mailing address and permanent address in a passport

application dated October 5, 2005. On October 2, 2006, he

again applied for a passport, with his mailing address in

Kempten, Germany and the Wilmington Address as his

permanent address. In a third passport application on February

29, 2008, within the time period alleged in the indictment, he

listed the Wilmington Address as his current and permanent

address.

Pendleton went to Germany in November of 2005 and

was convicted of a sex offense there on October 16, 2006.

After he served his prison sentence for that offense, he was

deported to the United States, and he arrived at JFK Airport

on January 21, 2008. William McAlpin, an agent with

Immigration and Customs Enforcement, interviewed him

upon his arrival at JFK. Pendleton listed the Wilmington

4

Address on his customs declaration form and told McAlpin

that “he was residing” there and planned to go there after

spending some time visiting friends in New York City. (Id. at

254-55.) He also told McAlpin that the Wilmington Address

“was an apartment within a home owned by one Richard

Bayard.” (Id. at 257.) Pendleton then sent an email to Mr.

Bayard to let him know that he gave the address to customs

officials when he came through the airport, and that “a strange

call might come about me. I explained that it was your home

and did not correct his impression that I rented a room from

you.” (Id. at 300.)

Mr. Bayard owned the single-family home at the

Wilmington Address. His adult daughter, Kate Bayard, lived

there for most of her life with her family and has lived there

alone since 2006. Ms. Bayard testified that Pendleton “was

friendly with [her] parents,” but she does not remember

meeting him. (Id. at 263.) As far as she knows, Pendleton did

not have a key to the house, never stayed there overnight or

asked to do so, and did not come in the house. Ms. Bayard did

not know that Pendleton used her address to obtain a driver‟s

license, apply for a passport, or register to vote.

At some point between 2002 and 2006, Pendleton

asked Mr. Bayard to hold his mail while he was traveling. He

picked up his mail once, and then the Bayards “didn‟t hear

from him for a number of years.” (Id. at 265.) In 2008,

Pendleton contacted Mr. Bayard to pick up his mail, and Ms.

Bayard arranged to leave the mail in the mailbox in front of

the house. Deputy United States Marshal William David had

been investigating Pendleton‟s compliance with SORNA and

made arrangements with Ms. Bayard for Pendleton‟s mail to

be in the mailbox at the Wilmington Address on the afternoon

of March 10, 2008.

David went to the Wilmington Address on the

prearranged day and approached Pendleton, who had checked

the mailbox and was standing on a nearby street corner. After

David identified himself, he asked Pendleton for

identification, and Pendleton produced a Delaware driver‟s

license that was issued on May 13, 2005 with the Wilmington

5

Address on it. When David asked, Pendleton said that he lived

at the Wilmington Address but “had lost his key and was

waiting for the other occupant to get home to let him in.” (Id.

at 283.) Pendleton also showed David his passport and a

membership card for Hostelling International, which had the

Wilmington Address on it. Pendleton said he had just come

from the library in Wilmington but was staying at a hostel in

Philadelphia because he “had business” there. (Id. at 284.) A

receipt showed that he paid to stay at the hostel in

Philadelphia from March 7 to 11, 2008. The hostel later sent

his belongings to the United States Marshal‟s Service, and his

name and the Wilmington Address were written on a luggage

tag on one of those items.

David arrested Pendleton, read him his rights, and told

him that he was charged with a violation of § 2250 for failure

to register as a sex offender. Pendleton first denied being a

sex offender and then said that he was a sex offender but was

not required to register. After he was arrested, the government

executed a search warrant on an email account that he used.

Emails that he sent and received in late January of 2008, after

he was deported from Germany to the United States, show

that he researched sex offender registration requirements in

Delaware and correctly concluded that at that time he was not

required to register under Delaware law.

C. Pendleton’s Travels in Early 2008

Based on his examination of Pendleton‟s emails, travel

documents, and other items, David concluded that after

Pendleton arrived at JFK on January 21, 2008, he stayed in

New York for about five days and then traveled to

Philadelphia on or about January 26th. On February 1st, he

traveled to Delaware, and left for Washington, D.C. on or

about February 4th. According to David‟s testimony and

Amtrak tickets in Pendleton‟s name, Pendleton traveled

starting on February 9th from Washington, D.C. to Chicago;

starting on February 12th from Chicago to Emeryville,

California; starting on February 26th from Los Angeles to

Chicago; and starting on March 2nd from Chicago to

Washington, D.C. On March 7th, he traveled to Philadelphia,

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and then on March 10th, he traveled to Wilmington and was

arrested. Pendleton had a one-way airplane ticket to travel on

March 12, 2008 from JFK to Prague, Czech Republic.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §

3231, and we have jurisdiction under 28 U.S.C. § 1291 and 18

U.S.C. § 3742. Our review of the Court‟s denial of

Pendleton‟s motion for judgment of acquittal, its construction

of SORNA, and its conclusion that SORNA is constitutional

is plenary.

III. ANALYSIS

The Adam Walsh Child Protection and Safety Act of

2006, which included SORNA,1 “was enacted to close the

loopholes in previous sex offender registration legislation and

to standardize registration across the states.” United States v.

Shenandoah, 595 F.3d 151, 154 (3d Cir. 2010). In response to

previous legislation, by 1996 every state and the District of

Columbia had mandatory sex offender registration laws, but

“SORNA creates a national sex offender registry with the

goal of eliminating inconsistencies among state laws.” Id.

1

Title I of the Adam Walsh Child Protection and

Safety Act of 2006 was itself named the “Sex Offender

Registration and Notification Act” (SORNA), and both 42

U.S.C. § 16913, which contains the sex offender registration

requirement, and 18 U.S.C. § 2250, which contains the

criminal enforcement provision under which Pendleton was

convicted, were enacted through Title I of that Act. Adam

Walsh Child Protection and Safety Act of 2006, Pub. L. No.

109-248, §§ 101, 113, 141, 120 Stat. 587, 590, 593-94, 601-

02 (2006).

As defined by statute, “SORNA” thus includes both §§

16913 and 2250. In United States v. Shenandoah, we upheld

the constitutionality of “SORNA” under the Commerce

Clause, but did not specifically address § 16913. See United

States v. Shenandoah, 595 F.3d 151, 160-61 (3d Cir. 2010).

We will do so here.

7

When Congress enacted SORNA, it was particularly

concerned about the transient nature of many sex offenders

and did not want to lose track of sex offenders when they

moved from state to state. United States v. Howell, 552 F.3d

709, 716-17 (8th Cir. 2009). Recognizing this, the Eighth

Circuit “reject[ed] the suggestion that a savvy sex offender

can move to a different city and avoid having to update his

SORNA registration by sleeping in a different shelter or other

location every night.” United States v. Voice, 622 F.3d 870,

875 (8th Cir. 2010). Given Pendleton‟s extensive travel, the

government argues that a similar concern regarding transience

is present in this case.

Under the relevant provision of 42 U.S.C. § 16913(a),

“[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.” A “jurisdiction” is, among other things, “[a] State.”

42 U.S.C. § 16911(10)(A). “The term „resides‟ means, with

respect to an individual, the location of the individual‟s home

or other place where the individual habitually lives.” 42

U.S.C. § 16911(13). A sex offender must “appear in person”

in at least one of the applicable jurisdictions “not later than 3

business days after each change of name, residence,

employment, or student status . . . and inform that jurisdiction

of all changes in the information required for that offender in

the sex offender registry.” 42 U.S.C. § 16913(c).

Pendleton was convicted not under § 16913, which

does not have an enforcement provision, but under 18 U.S.C.

§ 2250(a), which provides that a person commits a crime

when he or she “(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.” In other words,

“[o]nce a person becomes subject to SORNA‟s registration

requirements . . . that person can be convicted under § 2250 if

he thereafter travels and then fails to register.” Carr v. United

States, 130 S. Ct. 2229, 2236 (2010).

Pendleton does not dispute on appeal that he was a sex

8

offender under § 16913, that he traveled in interstate and

foreign commerce after those offenses and during the time

period alleged in the indictment, and that he knowingly did

not register as a sex offender in Delaware. Rather, he

challenges the sufficiency of the evidence that he “reside[d]”

in Delaware and was required to register there. He also argues

that he did not have fair notice of a requirement to register in

Delaware, which failure he claims violates the Due Process

Clause, and that § 16913 exceeds Congress‟s power under the

Commerce Clause.2

A. Sufficiency of the Evidence

As we noted above, our review of the District Court‟s

construction of SORNA and denial of Pendleton‟s Rule 29

motion is plenary. We apply, however, a highly deferential

standard of review to the jury‟s verdict.

We must sustain the verdict if there is

substantial evidence, viewed in the light most

favorable to the government, to uphold the

jury‟s decision. We do not weigh evidence or

determine the credibility of witnesses in making

this determination. In making our review we

examine the totality of the evidence, both direct

and circumstantial. We must credit all available

inferences in favor of the government.

United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003)

(internal quotation marks, punctuation, and citations omitted).

We will “sustain the verdict unless it is clear that no rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. . . . [W]e will only find the

evidence insufficient when the prosecution‟s failure is clear.”

2

Pendleton also contends that Congress exceeded its

Commerce Clause power in enacting § 2250, but recognizes

that we upheld the constitutionality of § 2250 in Shenandoah.

He filed a supplemental brief arguing that SORNA violates

the Tenth Amendment, but did not raise that issue in his

opening brief and it is, therefore, waived.

9

United States v. Mercado, 610 F.3d 841, 845 (3d Cir. 2010)

(citations omitted).

As relevant to the issues before us on appeal,

Pendleton argued to the District Court that the government

failed to prove that he resided in any relevant jurisdiction

during the period identified in the indictment. The Court

noted that at trial the government proceeded on the theory that

Pendleton resided in Delaware. The government sought to

prove this by showing that he used the Wilmington Address

as a “mail drop” and that he repeatedly claimed to reside

there. (R. at 29.)

The District Court assumed but did not decide that

Pendleton did not habitually live at the Wilmington Address.

The Court “consider[ed]” guidelines that the Attorney

General issued several months after Pendleton‟s arrest and

found that the “guidelines seem to imply that . . . a mail drop

or a location that Pendleton identifies as his home address, is

one of the places where a sex offender is required to register

under SORNA.” (Id. at 35-36.) The Court held that the

Wilmington Address was Pendleton‟s “home” under SORNA

because he “not only used [that address] as a mail drop, but

also listed the address as his legal residence on a number of

occasions and for a number of purposes between 2005 and

2008.” (Id. at 36; see also id. at 37 n.3.) Pendleton argues that

he resided in a jurisdiction under SORNA only if he

“habitually live[d]” there and that the Court violated the Ex

Post Facto Clause when it considered the Attorney General‟s

guidelines in his case.

Under SORNA, “[t]he term „resides‟ means, with

respect to an individual, the location of the individual‟s home

or other place where the individual habitually lives.” 42

U.S.C. § 16911(13) (emphasis added). Because Congress

used the phrase “or other,” Pendleton contends that “home” is

at least partially defined as a place where a sex offender

“habitually lives.” He claims that an address that is solely a

mail drop cannot be where a person resides because one does

not habitually live at a mail drop. It is not necessary for us to

reach this issue regarding the interim rule, however, because

10

Pendleton stated numerous times – including during the time

period alleged in the indictment – that he actually lived at the

Wilmington Address, not only that it was his mailing address.

A rational trier of fact could have concluded from those

statements that Pendleton “habitually live[d]” at the

Wilmington Address.

Pendleton contends that, given Ms. Bayard‟s testimony

that he had never been inside or stayed overnight at the

Wilmington Address, the jury could not have found that he

habitually lived at the Wilmington Address. The jury,

however, was free to disregard her testimony. Pendleton

claimed many times over a number of years and during the

period alleged in the indictment – perhaps most notably to the

Deputy United States Marshal who arrested him outside that

address – that he actually lived at the Wilmington Address. A

rational trier of fact could have taken him at his word and

found that he habitually lived there at some point from

January 28 to March 10, 2008.3

Pendleton also argues that a sex offender does not

reside or habitually live somewhere until he or she has been in

that location for three business days, but SORNA does not

contain such a limitation. SORNA requires a sex offender to

“appear in person” in an applicable jurisdiction, including

where he or she resides, “not later than 3 business days after

3

In the alternative, Pendleton argues “that the

government had not met its burden on the „resides‟ element,

because it had not proved that Mr. Pendleton maintained a

dwelling place in the State of Delaware.” (Appellant‟s Br. at

2.) But SORNA does not require a sex offender to register

where he or she “maintain[s] a dwelling place.” SORNA,

rather, mandates that a sex offender register “in each

jurisdiction where the offender resides,” 42 U.S.C. §

16913(a), which is where he has his “home or other place

where [he] habitually lives,” 42 U.S.C. § 16911(13). There

was sufficient evidence not only for a rational juror to

conclude that Pendleton resided at the Wilmington Address

but also that he “habitually live[d]” somewhere in Delaware

and he was, therefore, required to register in that jurisdiction.

11

each change of . . . residence . . . and inform that jurisdiction

of all changes in the information required for that offender in

the sex offender registry.” 42 U.S.C. § 16913(c). SORNA‟s

three-day time period prescribed the time by which Pendleton

was required to register in Delaware, not how long he was

required to stay without interruption in Delaware before it

became the place where he “habitually live[d].” See

Shenandoah, 595 F.3d at 157.

We will affirm the District Court‟s conclusion that

sufficient evidence supported the conviction.

B. Due Process and Fair Notice

There is no dispute that at the time Pendleton was

arrested, he was not required to register as a sex offender

under Delaware law. SORNA imposes a federal requirement

that “[a] sex offender shall register, and keep the registration

current, in each jurisdiction where the offender resides,”

which in this case was Delaware. 42 U.S.C. § 16913(a)

(emphasis added). Pendleton argues that as applied to him,

SORNA violates the Due Process Clause because he did not

have fair notice that federal law required him to register in

Delaware, even though Delaware law did not.

“The Supreme Court has explained that a statute is

unconstitutionally vague if it „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.‟” Interactive Media Entm’t &

Gaming Ass’n, Inc. v. Attorney General, 580 F.3d 113, 116

(3d Cir. 2009) (quoting United States v. Williams, 553 U.S.

285, 304 (2008)). Pendleton contends that SORNA fails the

“fair notice” element of this test in his case because it “directs

an individual to register in the sex offender registry of a

jurisdiction which does not require that he register as a sex

offender.” (Appellant‟s Br. at 32.) He argues that a person of

ordinary intelligence would not know that federal law

required him to do so when Delaware law did not.

Federal law, however, often imposes requirements or

12

restrictions that are different from state law. For example,

California and other states “authorize the use of marijuana for

medicinal purposes,” but federal law prohibits that activity.

Gonzales v. Raich, 545 U.S. 1, 5, 7-8 (2005). Medicinal

marijuana users in California and elsewhere could be using

marijuana legally under state law, but still be vulnerable to

federal prosecution. Similarly, Pendleton was not required to

register under Delaware law, but was still vulnerable to

federal prosecution for failing to register.

In Shenandoah, moreover, the defendant argued that

SORNA did not apply to him because New York and

Pennsylvania, the two states in which the government alleged

that Shenandoah was required to register, had not yet

implemented SORNA. We rejected that argument and

concluded that “an independent and federally enforceable

duty is placed on sex offenders to register.” Shenandoah, 595

F.3d at 157. Even if New York and Pennsylvania never

implemented SORNA, such “failure to implement a federal

law . . . [would] not give sex offenders a reason to disregard

their federal obligation to update their state registrations.” Id.

Instead, “[w]hen a sex offender travels in interstate commerce

and disobeys the federal command to keep his or her

registration current, as required by SORNA, he or she is

subject to prosecution.” Id.; see also 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.”).

Put simply, Pendleton‟s federal duty to register under

SORNA was not dependent upon his duty to register under

Delaware law. A person of ordinary intelligence would not

assume that as long as he or she complied with state law on a

particular issue, there would be no risk of running afoul of

federal law. We therefore reject Pendleton‟s argument as to

fair notice under the Due Process Clause.

C. Commerce Clause

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Although recognizing that in Shenandoah we upheld

the constitutionality of § 2250 under the Commerce Clause,

Pendleton argues that (1) § 16913 is an unconstitutional

exercise of Congress‟s Commerce Clause power and (2)

because lack of compliance with § 16913 is a necessary

element of § 2250, § 2250 is also unconstitutional.

“It has been long established Congress may forbid or

punish use of interstate commerce „as an agency to promote

immorality, dishonesty or the spread of any evil or harm to the

people of other states from the state of origin.‟” United States

v. May, 535 F.3d 912, 921 (8th Cir. 2008) (quoting Brooks v.

United States, 267 U.S. 432, 436 (1925)), quoted in

Shenandoah, 595 F.3d at 161. Furthermore, “„the authority of

Congress to keep the channels of interstate commerce free

from immoral and injurious uses has been frequently

sustained, and is no longer open to question.‟” Heart of

Atlanta Motel, Inc. v. United States, 379 U.S. 241, 256 (1964)

(quoting Caminetti v. United States, 242 U.S. 470, 491

(1917)), quoted in United States v. Lopez, 514 U.S. 549, 558

(1995).

In Lopez, the Supreme Court explained that it had

identified three broad categories of activity that

Congress may regulate under its commerce

power. First, Congress may regulate the use of

the channels of interstate commerce. Second,

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. Finally, 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.

514 U.S. at 558-59 (citations omitted). In Shenandoah, we

held that SORNA “derives its authority from each prong of

Lopez, and most specifically” the first and second Lopez

14

prongs. 595 F.3d at 161. When a sex offender travels between

states, he or she is a person in interstate commerce who

travels via the use of the channels of interstate commerce. See

id.

Pendleton claims that Shenandoah does not foreclose

his Commerce Clause challenge because in Shenandoah we

did not analyze the constitutionality of § 16913 separately

from § 2250. He contends that § 16913 is beyond the bounds

of the Commerce Clause because it requires registration from

all sex offenders, not just those who travel in interstate

commerce. The government argues that § 16913 is a valid

exercise of Congress‟s Commerce Clause power through the

Necessary and Proper Clause.

Congress has the power “[t]o make all Laws which

shall be necessary and proper for carrying into Execution” the

powers that it has under, inter alia, the Commerce Clause.

U.S. Const. art. I, § 8, cl. 18. Discussing the scope of the

Necessary and Proper Clause many years ago, the Supreme

Court wrote, “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 that end, which are

not prohibited, but consist with the letter and spirit of the

constitution, are constitutional.” M’Culloch v. Maryland, 17

U.S. 316, 421 (1819). Discussing that Clause more recently,

the Supreme Court stated that “the relevant inquiry is simply

„whether the means chosen are reasonably adapted to the

attainment of a legitimate end under the commerce power‟ or

under other powers that the Constitution grants Congress the

authority to implement.” United States v. Comstock, 130 S.

Ct. 1949, 1957 (2010) (quoting Raich, 545 U.S. at 37 (Scalia,

J., concurring in the judgment)) (upholding through the

Necessary and Proper Clause a “federal civil-commitment

statute [that] authorizes the Department of Justice to detain a

mentally ill, sexually dangerous federal prisoner beyond the

date the prisoner would otherwise be released,” id. at 1954)

(further internal quotation marks omitted); see also Raich,

545 U.S. at 35 (Scalia, J., concurring) (“Where necessary to

make a regulation of interstate commerce effective, Congress

may regulate even those intrastate activities that do not

15

themselves substantially affect interstate commerce.”).

In upholding § 16913 under the Commerce Clause and

the Necessary and Proper Clause, the Second Circuit noted

that (1) “§ 16913 does not exist in a vacuum” but rather

complements § 2250; (2) by the time SORNA was enacted,

every state had a sex offender registry, so SORNA was not

solely focused on creating a registry; and (3) the enforcement

provision in § 2250(a) would not affect a sex offender

convicted in state court who did not travel between states or

countries. Guzman, 591 F.3d at 90-91. “Congress‟s goal was

not simply to require sex offenders to register or to penalize

the failure to do so,” but instead “to make sure sex offenders

could not avoid all registration requirements just by moving to

another state.” Id. at 91. The court in Guzman concluded that

[r]equiring sex offenders to update their

registrations due to intrastate changes of address

or employment status is a perfectly logical way

to help ensure that states will more effectively

be able to track sex offenders when they do

cross state lines. To the extent that § 16913

regulates solely intrastate activity, its means „are

reasonably adapted to the attainment of a

legitimate end under the commerce power,‟ and

therefore proper.

Id. (quoting Raich, 545 U.S. at 37 (Scalia, J., concurring in

the judgment)) (further internal quotation marks and citation

omitted).

The Fifth Circuit concluded that § 2250 and § 16913

“are clearly complementary: without § 2250, § 16913 lacks

federal criminal enforcement, and without § 16913, § 2250

has no substance.” United States v. Whaley, 577 F.3d 254,

259 (5th Cir. 2009). That court also recognized that SORNA

was focused “on the problem of sex offenders escaping their

registration requirements through interstate travel.” Id. The

court in Whaley

conclude[d] that requiring sex offenders to

register both before and after they travel in

16

interstate commerce – which clearly facilitates

monitoring those movements and which has a

minimal practical impact on intrastate sex

offenders (who cannot be punished under

federal law for failure to register unless and

until they travel in interstate commerce) – is

„reasonably adapted‟ to the goal of ensuring that

sex offenders register and update previous

registrations when moving among jurisdictions.

Id. at 261 (footnote omitted).

Relying on M’Culloch and Justice Scalia‟s concurrence

in Raich, the Eighth Circuit observed that

[a] narrow discussion which only analyzes §

16913 under the three categories of Lopez casts

doubt on the constitutionality of § 16913. . . .

However, an analysis of § 16913 under the

broad authority granted to Congress through

both the commerce clause and the enabling

necessary and proper clause reveals the statute

is constitutionally authorized.

Howell, 552 F.3d at 715, quoted in United States v. Vasquez,

611 F.3d 325, 330 (7th Cir. 2010) (upholding the

constitutionality of § 16913). The court in Howell determined

that “SORNA was intended to regulate the interstate

movement of sex offenders” and that § 16913 was “a

reasonable means to track those offenders if they move across

state lines.” Id. at 717; see also Vasquez, 611 F.3d at 331;

United States v. Ambert, 561 F.3d 1202, 1212 (11th Cir.

2009) (“Section 16913 is reasonably adapted to the attainment

of a legitimate end under the commerce clause. The

requirement that sex offenders register under § 16913 is

necessary to track those offenders who move from jurisdiction

to jurisdiction.”). Pendleton cites, and we have found, no

court of appeals that supports his argument that § 16913 is

unconstitutional.

The reasoning in the cases we have discussed above is

congruous with our decision in Shenandoah, and we join our

17

sister courts of appeals in holding that § 16913 “is a law made

in pursuance of the constitution,” M’Culloch, 17 U.S. at 424,

because it is “necessary and proper for carrying into

Execution” Congress‟s power under the Commerce Clause,

U.S. Const. art. I, § 8, cl. 18.

IV. CONCLUSION

We will affirm the judgment of conviction.

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