United States v. Paul Shenandoah

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 09-1205

___________

UNITED STATES OF AMERICA

v.

PAUL SHENANDOAH,

Appellant

_____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-07-cr-00500-001)

District Judge: The Honorable Christopher C. Conner

___________

Submitted Under Third Circuit LAR 34.1(a)

October 2, 2009

BEFORE: McKEE, CHAGARES,

and NYGAARD, Circuit Judges.

(Filed : February 9, 2010)

___________

Frederick W. Ulrich, Esq.

Thomas A. Thornton, Esq.

Office of the Federal Public Defender

100 Chestnut Street, Suite 306

Harrisburg, PA 17101

Counsel for Appellant

Martin C. Carlson, Esq.

Theodore B. Smith, III, Esq.

Office of the United States Attorney

228 Walnut Street, PO Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

Counsel for Appellee

___________

OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Paul Shenandoah was indicted in December of 2007 for

failing to register as a sex offender in violation of the Sex

Offender Registration and Notification Act (SORNA), 18

U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was

also charged with two counts of knowingly and willfully

providing false information to law enforcement officials

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regarding his federal sex offender registration offenses, in

violation of 18 U.S.C. §§ 1001 and 1512(b)(3).

He pleaded not guilty and asked the District Court to

dismiss the indictment, arguing that SORNA violated the Non-

Delegation Doctrine, the Administrative Procedure Act, the Ex

Post Facto Clause, the Due Process Clause, the Commerce

Clause, the Tenth Amendment and his right to travel. The

District Court denied the motion. United States v. Shenandoah,

572 F.Supp.2d 566 (M.D. Pa. 2008). Shenandoah then pleaded

guilty to failing to register as a sex offender under SORNA, but

reserved his right to appeal the order refusing to dismiss the

indictment. See F ED.R.C RIM.P. 11(a)(2); United States v.

Zudick, 523 F.2d 848, 852 (3d Cir. 1975).

I.

The factual and procedural background of this appeal is

straightforward and undisputed. An abbreviated recitation will

suffice. Shenandoah, a New York resident, was convicted of

third degree rape in February of 1996.1 He executed a New

York state sexual offender registration form when he was

paroled in February of 2002. This form requires, among other

things, that he apprise New York of any changes in his home

address and place of employment. Some time in August of

1.

Under New York state law, third degree rape is,

essentially, a form of statutory rape which involves, inter alia,

sexual intercourse with another person less than seventeen years

of age. See New York Penal Law § 130.25 (McKinney 2001).

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2007, Shenandoah’s employment as an iron worker required that

he travel to, and relocate in, York County, Pennsylvania. He

failed, however, either to register as a sex offender in

Pennsylvania, or to modify his New York registration to reflect

his change of residence and employment, leading to his

indictment.

II.

The Adam Walsh Child Protection and Safety Act of

2006, Pub.L. No. 109-248, 120 Stat. 587, was enacted to close

the loopholes in previous sex offender registration legislation

and to standardize registration across the states.2 See United

States v. Ensminger, 567 F.3d 587, 588 (9th Cir. 2009). The

Adam Walsh Act is divided into seven titles, the first of which

contains SORNA.

SORNA creates a national sex offender registry with the

goal of eliminating inconsistencies among state laws. Id.

SORNA applies to a broadly-defined class of “sex offenders,”

2.

In 1994, Congress enacted the Jacob Wetterling

Crimes Against Children and Sexually Violent Offender

Registration Act, as amended, 42 U.S.C. § 14071, which

conditions federal law enforcement funding on states' adoption

of mandatory sex offender registration laws. Smith v. Doe, 538

U.S. 84, 89-90 (2003). By 1996, every state and the District of

Columbia had enacted some version of the Act, which is

commonly termed a “Megan's Law.” Id.

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which includes persons convicted of child pornography offenses

as well as almost all offenses involving illegal sexual conduct.

See 42 U.S.C. § 16911. SORNA sets forth requirements for

offenders who must initially register, and for those offenders

who are already registered, but must update their registration:

(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.

(c) Keeping the registration current

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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 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.

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42 U.S.C. § 16913. SORNA provides for criminal penalties for

failing to comply with its registration requirements. Section

2250(a) states as follows:

Whoever-

(1) is required to register under the Sex Offender

Registration and Notification Act;

(2) (A) is a sex offender as defined for the

purposes of the Sex Offender Registration and

Notification Act by reason of a conviction under

Federal law (including the Uniform Code of

Military Justice), the law of the District of

Columbia, Indian tribal law, or the law of any

territory or possession of the United States; or

(B) travels in interstate or foreign commerce, or

enters or leaves, or resides in, Indian country; 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.

18 U.S.C. § 2250(a). The Attorney General is also directed to

“maintain a national database . . . for each offender.” 42 U.S.C.

§ 16919(a).

SORNA requires states to implement the statute or lose

“10 percent of the funds that would otherwise be allocated” to

the state under the Omnibus Crime Control and Safe Streets Act

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of 1968 for a given year. 42 U.S.C. § 16925(a). States are

required to “maintain a jurisdiction-wide sex offender registry

conforming to the requirements of [SORNA],” 42 U.S.C. §

16912(a); “provide a criminal penalty” for a sex offender’s

failure to register, 42 U.S.C. § 16913(e); and “immediately . . .

provide the information into the registry” about an offender who

has registered or updated a registration to other entities,

including the Attorney General, local law enforcement agencies

and certain social service and volunteer organizations that work

with children. 42 U.S.C. § 16921(b).

Responding to the directive contained in § 16913(d), the

Attorney General initially announced an interim rule that

became effective on February 28, 2007. See 72 F ED. R EG. 8894

(Feb. 28, 2007). Pursuant to this rule, the Attorney General

declared that SORNA's requirements applied “to all sex

offenders, including sex offenders convicted of the offense for

which registration is required prior to the enactment of

[SORNA].” 28 C.F.R. § 72.3 (2007). The Attorney General then

followed up with more detailed proposed guidelines that were

subject to notice and comment. See 72 F ED. R EG. 30210 (May

30, 2007). The Attorney General's final regulations on the

interpretation and implementation of SORNA became effective

on July 2, 2008, one week after Shenandoah filed his Motion to

Dismiss. See 73 F ED. R EG. 38030 (July 2, 2008).

III.

Shenandoah raises numerous challenges to SORNA. He

asserts that SORNA did not apply to him since neither New

York nor Pennsylvania have implemented the law. Further, he

argues that his prosecution under SORNA violates due process

because it was impossible for him to comply with the statute’s

dictates and because he did not receive any notice of his duty to

register. Shenandoah also asserts that SORNA violates the

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Commerce Clause, the Tenth Amendment and his constitutional

right to travel. Finally, he maintains that SORNA violates the

Nondelegation Doctrine and the Administrative Procedure Act.

There have been hundreds of similar challenges to the statute

filed in federal courts around the nation, each raising

constitutional challenges to SORNA. To date, the Courts of

Appeal for the Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and

Eleventh Circuits have all rejected various constitutional

challenges to SORNA. See United States v. George, 579 F.3d

962 (9th Cir. 2009); United States v. Whaley, 577 F.3d 254 (5th

Cir. 2009); United States v. Gould, 568 F.3d 459 (4th Cir.

2009); United States v. Ambert, 561 F.3d 1202 (11th Cir. 2009);

United States v. Dixon, 551 F.3d 578 (7th Cir. 2008); United

States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008); United

States v. May, 535 F.3d 912 (8th Cir. 2008).

Traditionally, when reviewing a motion to dismiss an

indictment, our standard of review is mixed, employing plenary

or de novo review over a district court’s legal conclusions, and

reviewing any challenges to a district court’s factual findings for

clear error.” United States v. Nolan-Cooper, 155 F.3d 221, 229

(3d Cir. 1998); see also United States v. Barbosa, 271 F.3d 438,

469 (3d Cir. 2001). However, Shenandoah does not challenge

the District Court’s factual determinations. We are, therefore,

reviewing de novo the District Court’s legal conclusions.3 We

will affirm.

A. Applicability of SORNA

As a threshold argument, Shendandoah contends that

SORNA does not apply to him because neither Pennsylvania

3.

The District Court had jurisdiction under 18

U.S.C. § 3231. Our jurisdiction is found in 28 U.S.C. § 1291.

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nor New York have implemented the Act. Because Shenandoah

was already a registered sex offender when SORNA was

enacted, SORNA required only that he keep his registration

current on and after July 27, 2006. The allegations in the

indictment, to which Shenandoah provisionally pleaded guilty,

clearly pertain to his failure to keep his registration current and,

as such, are covered by 42 U.S.C. § 16913(a) & (c). See, e. g.,

United States v. May, 535 F.3d 912, 918-19 (8th Cir. 2008).

Under these subsections of the statute, Shenandoah was required

to keep his registration current in each jurisdiction in which he

resided and, not later than three business days after each change

of residence, to appear in person in at least one jurisdiction and

inform that jurisdiction of all changes in the information

required in the sex offender registry. See 42 U.S.C. § 16913(a)

& (c). 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. Inasmuch as New York and Pennsylvania had

sex offender registries in place after SORNA’s enactment,

SORNA demanded that Shenandoah update his registration by

registering in Pennsylvania and informing New York of his

change of address and employment. Nothing in this record

demonstrates that this was impossible for Shenandoah to do.

Furthermore, the directive found in 42 U.S.C. § 16913(a)

applies to sex offenders — not to states. When combined with

SORNA’s enforcement provision, 18 U.S.C. § 2250(a), an

independent and federally enforceable duty is placed on sex

offenders to register. 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

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registrations. When 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. 18 U.S.C. § 2250(a); see also May, 535 F.3d at

921.

Shenandoah’s reliance on the Attorney General’s

SORNA Guidelines, 72 F ED.R EG. 30210 (May 30, 2007), is

misplaced. In May 2007, the Attorney General issued proposed

Sex Offender Sentencing, Monitoring, Apprehending,

Registering, and Tracking (“SMART”) Guidelines ostensibly to

provide assistance to those states implementing SORNA. 72

F ED.R EG. at 30210. Shenandoah maintains that one of these

SMART guidelines plainly instructs that convicted sex offenders

have a duty to register only after a jurisdiction implements

SORNA:

With respect to sex offenders with pre-SORNA

[enactment] or pre-SORNA implementation

convictions who remain in the prisoner,

supervision, or registered sex offender

populations at the time of implementation . . .

jurisdictions should endeavor to register them in

conformity with SORNA as quickly as possible.

72 Fed.Reg. 30210, 30228 (May 30, 2007). Shenandoah argues

that this language shows that SORNA was not intended to be

enforced until after the states had implemented the law's

requirements. We disagree. The plain language of SORNA

requires an offender to update their state registration,

independent of any construction of the statute by the Attorney

General. Shenandoah’s obligation to register was triggered by

the enactment of the statute; it is not contingent upon a green

light from the Attorney General. Moreover, in 72 F ED. R EG.

30210, also issued in May 2007, the Attorney General explicitly

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stated that the applicability of SORNA is not limited to sex

offenders who committed the predicate sex crime after a

jurisdiction's implementation of a conforming registration

program; rather, SORNA’s requirements are applicable to all

sex offenders. The regulation states that “registered sex

offender populations” should be registered under SORNA’s

requirements. This suggests that, even before full

implementation of SORNA, the obligation to register with the

state applies. Instead of indicating that no obligation to register

applies until SORNA is implemented, the regulation conveys

that sex offenders should be registered at all times. Shenandoah

was a “sex offender” under SORNA and as of July 27, 2006, he

was required to — and capable of — registering and keeping his

registration current in the jurisdiction in which he resided. New

York and Pennsylvania both had registration processes

Shenandoah could have employed in order to comply with §

16913(a) prior to either state's implementation of SORNA.

Nothing in SORNA or its guidelines indicates that a

jurisdiction’s failure to comply with SORNA relieves offenders

of the obligation to register in that jurisdiction. We reject,

therefore, Shenandoah’s arguments that he was unable to

register under SORNA or that SORNA did not apply to him

because neither New York nor Pennsylvania had implemented

the law.

B. Ex Post Facto Clause

The Ex Post Facto Clause of the Constitution forbids any

law that “changes the punishment, and inflicts a greater

punishment” for pre-existing conduct. Hameen v. State of

Delaware, 212 F.3d 226, 235 (3d Cir. 2000) (citing Calder v.

Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)). Shenandoah

argues that subjecting him to punishment for failing to register

under SORNA — a law not yet enacted when he was discharged

from prison in New York — would violate the Ex Post Facto

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Clause of the Constitution. We need not dwell long on this

issue. Specifically, SORNA’s criminal provision is violated

when an offender who was (1) required to register in some

jurisdiction; (2) knowingly failed to register or update a prior

registration; and (3) traveled in interstate commerce. 18 U.S.C.

§ 2250(a). SORNA is not being applied retroactively. Instead,

SORNA’s focus is prospective. It creates a new punishment for

a new offense, this new offense being traveling in interstate

commerce and failing to register as a sex offender under

SORNA after July 27, 2006. See United States v. Zuniga, 579

F.3d 845, 849 (8th Cir. 2009).

Shenandoah was required by law to update his

registration as a sex offender. He failed to do so when he

traveled from New York to Pennsylvania. His travel took place

in August of 2007, after the enactment of the statute. Neither

SORNA nor Shenandoah’s conduct implicate the Ex Post Facto

clause because neither contemplate retroactive events. Congress

created a new law. Shenandoah committed a new crime.

Furthermore, the Ex Post Facto Clause would protect

Shenandoah only if all the acts required for criminal punishment

occurred before 18 U.S.C. § 2250 took effect. If any act took

place later, the clause does not apply. United States v. Dixon,

551 F.3d 578, 584-85 (7 th Cir. 2008). As just noted, Shenandoah

was and is obliged to keep a current registration as a sex

offender under SORNA and he had a reasonable opportunity to

do so after enactment of the statute. Indeed, when he left prison,

Shenandoah was properly registered under New York law, as

required by SORNA. More than five years later (and more than

a year after the enactment of SORNA), Shenandoah traveled

interstate and then failed to update his registration. The Ex Post

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Facto Clause has no application to his situation.4

C. Notice Arguments

Shenandoah next claims that he had no duty to register

under SORNA because the Government failed to notify him of

these new requirements. He argues that without this

notification, he could not “knowingly fail to register.” See 18

U.S.C. § 2250(a)(3). A provision of SORNA, 42 U.S.C. §

16917(a), requires that offenders being discharged from prison,

be advised of their duty to register. Of course, because

Shenandoah was released from prison before SORNA was

enacted, it follows that he could not have been informed of the

federal registration requirement upon release from custody as

described in § 16917(a).

Shenandoah argues therefore, that because 18 U.S.C. §

2250(a) requires a knowing violation as an element of the

offense, the Government did not allege a prima facie violation

of § 2250(a). We disagree.

4.

Shenandoah also raises a Due Process Clause

argument, which we find baseless. He argues that it violates due

process to criminalize his failure to do something that is

impossible. He maintains it was “impossible” for him to satisfy

SORNA’s requirements because neither Pennsylvania nor New

York had implemented the Act. However, we have previously

determined that it was not impossible for Shenandoah to comply

with SORNA’s requirements. As the District Court correctly

determined here, “A state’s failure to update its registration

system to conform with SORNA does not alter a sex offender’s

independent duty to register all information that is required by

then-existing state law. United States v. Shenandoah, 572

F.Supp.2d 566, 578 (M.D. Pa. 2008).

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Overlooked in this argument is the fact that SORNA’s

criminal provision is not a specific intent law. See United States

v. Gould, 568 F.3d 459, 468 (4 th Cir. 2009). As set out in 18

U.S.C. § 2250(a), “knowingly” modifies “fails to register.” As

the Court of Appeals for the Fourth Circuit held, “[t]here is no

language requiring specific intent or a willful failure to register

such that he must know his failure to register violated federal

law.” Id., citing Bryan v. United States, 524 U.S. 184, 192-93

(1998) (noting that “the term ‘knowingly’ does not necessarily

have any reference to a culpable state of mind or to knowledge

of the law” and that “the term ‘knowingly’ merely requires proof

of knowledge of the facts that constitute the offense”). Receipt

of notice by a sex offender under 42 U.S.C. § 16917 is not an

element of the federal offense with which Shenandoah was

charged.

It is axiomatic that ignorance of the law does not provide

a defense, for it is presumed that every person knows the law.

See Cheek v. United States, 498 U.S. 192, 199 (1991); see also

United States v. Carbo, 572 F.3d 112, 116 (3d Cir. 2009).

Shenandoah argues further that even in the absence of actual

notice of criminal liability, due process requires that a statute not

criminalize “wholly passive conduct.” Relying on the Supreme

Court’s decision in Lambert v. California, 355 U.S. 225, 228

(1957), Shenandoah claims that he is being prosecuted for

wholly passive conduct, namely his failure to register. In

Lambert, when considering a city ordinance that required all

felons to register, the Supreme Court noted that “circumstances

which might move [a felon] to inquire as to the necessity of

registration are completely lacking” with respect to such a law.

Id. at 229.

Unlike an isolated city ordinance that requires all

members of the broad class of all felons to register, SORNA

instead criminalizes the failure to register of a much more

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narrowly targeted class of persons in a context where

sex-offender registration has been the law for years and

Shenandoah knew that. It is undisputed that Shenandoah knew

that he was required to register under New York law, which

mandated that he update his registration if he traveled or moved

out of state and that he register in the new state. The registration

form that Shenandoah signed notified him of his legal

obligations as a sex offender even though he was not, and could

not have been, notified of his duty under federal law. When

SORNA was enacted, every State had registration requirements

for sex offenders. These circumstances do not permit us to

conclude that Shenandoah’s due process rights, based on lack of

notice, were violated. See May, 535 F.3d 912, 921 (8th Cir.

2008) (holding that notice of the duty to register under state law

provides notice of the duty to register under SORNA); United

States v. Hinckley, 550 F.3d 926, 938-39 (10th Cir. 2008)

(same).

We can find no reason to hold that SORNA’s notice

provision was intended to dilute the effect of state notice

requirements. We conclude that Shenandoah had notice of his

registration obligations based on the information provided him

in the New York registration forms, even if that notice did not

explain that a consequence of failing to register would be a

violation of federal law and state law.

IV.

Shenandoah also brings several other broader

Constitutional challenges to SORNA. He argues that the statute

violates the Commerce Clause and the Tenth Amendment of the

Constitution. He also argues that SORNA violates his

constitutional right to interstate travel.

A. Commerce Clause

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Shenandoah contends that Congress exceeded its

commerce clause authority when it passed SORNA because the

statute, he argues, contains neither a sufficient nexus to

commerce, nor a substantial effect on interstate commerce.

Although we have not had occasion to address this issue, we

now join the other courts of appeals that have done so, and hold

SORNA to be a proper regulation under Congress’ commerce

power. See, e.g., May, 535 F.3d at 921-22; United States v.

Howell, 552 F.3d 709, 713 (8 th Cir. 2009); Hinckley, 550 F.3d

at 939-40; United States v. Lawrance, 548 F.3d 1329, 1336-37

(10 th Cir. 2008); United States v. Ambert, 561 F.3d 1202, 1210-

11 (11 th Cir. 2009).

Congress’ commerce clause power is derived from

Article I, section 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.

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).

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. The Supreme Court struck down the statute, identifying

three categories of activity that Congress may regulate under its

commerce power: (1) “Congress may regulate the use of the

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

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(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).

SORNA requires the government to prove that

Shenandoah traveled in interstate or foreign commerce, and

thereafter failed to register as required by SORNA. See 18

U.S.C. § 2250(a)(2)(B); May, 535 F.3d at 921. SORNA thus

derives its authority from each prong of Lopez, and most

specifically, the ability to regulate “persons or things in

interstate commerce” and “the use of the channels of interstate

commerce.” Shenandoah was undeniably a “person ... in

interstate commerce” in that he traveled and relocated between

New York and Pennsylvania. Shenandoah did so via the “use of

the channels of interstate commerce.” It has been long

established that 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.” May, 535 F.3d at 922 citing Brooks v.

United States, 267 U.S. 432, 436 (1925); see also Gould, 568

F.3d at 470. Congressional regulation of the channels of

interstate commerce has also been upheld when the punishment

“was intended to prevent the use of interstate commerce to

facilitate ... forms of immorality.” Brooks, 267 U.S. at 437

(citation omitted). SORNA contains a sufficient nexus to

interstate commerce.

We conclude that SORNA is a proper regulation of

commerce under the Lopez categories because it not only

regulates persons or things in interstate commerce, but also

regulates the use of channels of interstate commerce and the

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instrumentalities of interstate commerce.5

B. Tenth Amendment

Shenandoah argues that SORNA is unconstitutional

because it compels New York law enforcement to accept

registrations from federally-mandated sex offender programs in

violation of the Tenth Amendment, which 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. We need

not tarry long on this argument, because Shenandoah lacks

standing to raise this issue. See United States v. Hacker, 565

F.3d 522, 525-26 (8th Cir. 2009). A “private party does not

have standing to assert that the federal government is

encroaching on state sovereignty in violation of the Tenth

Amendment absent the involvement of a state or its

instrumentalities.” Id.; see also Brooklyn Legal Servs. Corp. v.

Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir. 2006);

Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir. 2005); United

States v. Parker, 362 F.3d 1279, 1284 (10th Cir. 2004).

Here, just as in Hacker, Shenandoah is challenging

SORNA in his individual capacity, and he does not assert the

5.

In so holding, we join those courts that have found

SORNA to derive its authority under the various Lopez

categories. See, e.g., Gould, 568 F.3d 459 (channels and

instrumentalities); Ambert, 561 F.3d 1202 (channels and

instrumentalities); United States v. Hinckley, 550 F.3d 926 (10th

Cir.2008) (channels and instrumentalities); May, 535 F.3d 912

(8th Cir.2008) (channels and instrumentalities); United States v.

Dixon, 551 F.3d 578 (7th Cir.2008) (Commerce Clause

challenge rejected outright); United States v. Lawrance, 548

F.3d 1329 (10th Cir.2008) (channels and instrumentalities).

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“involvement of a state or its instrumentalities.” Hacker, 565

F.3d at 526. Shenandoah has not argued that his interests are

aligned with any state’s interest. Because Shenandoah is a

private party, he lacks standing to raise a Tenth Amendment

challenge to SORNA.

C. Right to Travel

Shenandoah next argues that 18 U.S.C. § 2250(a)

impermissibly infringes upon his constitutional right to travel

because it punishes him for traveling to another state. He

further argues that SORNA subjects sex offenders who travel to

another state to a harsher penalty than sex offenders who remain

in one state. Neither argument is persuasive.

“[T]he ‘constitutional right to travel from one State to

another’ is firmly embedded in our jurisprudence.” Saenz v. Roe,

526 U.S. 489 (1999) (quoting United States v. Guest, 383 U.S.

745, 757 (1966)). There are several constitutional bases for the

right to travel, including general constitutional principles, see,

e.g., United States v. Guest, 383 U.S. 745 (1966); the Privileges

and Immunities Clause of Article IV, § 2 of the Constitution;

Hess v. Pawloski, 274 U.S. 352 (1927); the Privileges or

Immunities Clause of the Fourteenth Amendment, Twining v.

State of N.J., 211 U.S. 78 (1908); and the Due Process Clause of

the Fifth Amendment; State v. Barker, 252 Kan. 949, 850 P.2d

885 (Kan.1993).

In Saenz v. Roe, the Supreme Court struck down a

California law that limited welfare benefits for new residents.

526 U.S. 489 (1999). The Supreme Court held that the

Constitution protects the rights of United States citizens to

choose where they live and not be treated differently than

long-term residents. Id. at 500. This right to travel “protects the

right of a citizen of one State to enter and to leave another State,

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the right to be treated as a welcome visitor rather than an

unfriendly alien when temporarily present in the second State,

and, for those travelers who elect to become permanent

residents, the right to be treated like other citizens of that State.”

Id. at 500.

Most right to travel cases, however, focus on the

Constitutionality of a particular state statute that may treat a

state’s citizens in a preferred manner as compared to newly

arrived migrants. See e.g. Doe v. Pa. Bd. Probation and Parole,

513 F.3d 95 (3d Cir. 2008). Here Shenandoah insists: “SORNA

penalizes a distinct group of sex offenders for exercising their

right to travel because they are then subject to federal

prosecution for failing to register as a sex offender where

individuals who do not travel interstate are not so penalized.”

This is true, but meaningless. Shenandoah may travel interstate,

but when he does, must register in the new state, while a

convicted sex offender who remains within a state need only

remain properly registered therein. There is simply no

Constitutional violation. Moreover, moving from one

jurisdiction to another entails many registration requirements

required by law which may cause some inconvenience, but

which do not unduly infringe upon anyone’s right to travel. The

essential part of the charged crime in this matter is the failure to

register; Shenandoah’s right to travel is incidental to this

obligation, and not constitutionally offended.

Finally, it is worth noting that the Constitutional right of

interstate travel is not an absolute right, and the burden imposed

upon Shenandoah is necessary to achieve a compelling interest.

Sex offender registration requirements may be burdensome, and

the consequences may interfere with a registrant's freedom.

However, society, through its legislative processes, has decided

again and again that it has a compelling and strong interest in

preventing future sex crimes. We conclude that this interest

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outweighs any burden imposed. See also Ambert, 561 F.3d at

1210 (“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.”). Any impediment on

Shenandoah’s travel does not reach the Constitutional threshold

of his right to travel interstate.

V.

Shenandoah additionally argues that Congress’

delegation of authority to the Attorney General under 42 U.S.C.

§ 16913(d) violates the nondelegation doctrine. He also

maintains that the Attorney General’s Interim Rule of February

28, 2007, violated the Administrative Procedures Act, 5 U.S.C.

§ 553, by failing to provide a public notice and comment period.

We do not reach these issues. The allegations contained

in the indictment here do not establish a record of Shenandoah’s

failure to comply with the initial registration requirements

discussed in 42 U.S.C. § 16913(b) & (d). Since Shenandoah was

already a registered sex offender when SORNA was enacted,

SORNA only required him to keep his registration current on

and after July 27, 2006. To the extent that he argues that the

passage of SORNA should be construed to mean that all

registered sex offenders are once again required to initially

register pursuant to § 16913(b) & (d), we disagree. Such a

reading of the statute is not warranted by the statutory language

or common sense. While subsections (b) and (d) when read

together seem to contemplate the need for clarification as to

“initial registrations” by persons convicted of qualifying sex

offenses prior to July 27, 2006, that need for clarification applies

to a limited class of persons who, for various reasons, did not

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have a registration requirement prior to the passage of SORNA

but nonetheless were subject to sex offender registration

requirements after SORNA became law on July 27, 2006.

Shenandoah does not fall within this class of persons.

The allegations in this case clearly pertain to

Shenandoah’s failure to keep his registration current and, as

such, are covered by 42 U.S.C. § 16913(a) & (c). See May, 535

F.3d at 918-19. Under these subsections, Shenandoah was

required to “keep [his] registration current, in each jurisdiction”

in which he resided and “not later than 3 business days after

each change of . . . residence . . . appear in person in at least 1

jurisdiction . . . and inform that jurisdiction of all changes in the

information required . . . in the sex offender registry.” 42 U.S.C.

§ 16913(a) & (c).

The regulations promulgated by the Attorney General

pursuant to § 16913(d) do not apply here and we express no

opinion on their validity. The manner in which these regulations

were promulgated pursuant to the delegation contained in §

16913(d), is likewise irrelevant since we have concluded that the

allegations against Shenandoah do not involve an “initial

registration” pursuant to § 16913(b). See May, 535 F.3d at

916-19. Because Shenandoah had already initially registered as

a sex offender under state law when SORNA was enacted,

subsection (d) of Section 16913 did not apply to him. He was

required to keep his registration current under subsections (a)

and (c). He did not do so. Shenandoah was then charged under

the congressionally-defined crime in 18 U.S.C. § 2250 and in

particular for failing to update his registration. The Attorney

General’s interim rule as to initial registrations simply does not

apply. Shenandoah, therefore, does not have standing to

challenge the rule or the manner in which it was promulgated.

VI.

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The judgment of the District Court will be affirmed.

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