Petition for Writ of Certiorari — Allen Dodson, Petitioner v. United States

Supreme Court briefNov 8, 2019

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IN THE

Supreme Court of the United States

________________

ALLEN DODSON, BRYAN SIX, KENDAL RAY WILLIAMS,

KENNETH ROY GIBSON, ERIC RONALD BOLDUAN, AND

MONTY ENGLEHART,

Petitioners,

UNITED STATES OF AMERICA,

Respondent.

________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

________________

JOINT PETITION FOR A WRIT OF CERTIORARI

________________

VIRGINIA GRADY

Federal Public Defender

DEAN SANDERFORD

Assistant Federal Defender

VERONICA S. ROSSMAN

Assistant Federal Defender

FEDERAL PUBLIC DEFENDER FOR THE

DISTRICTS OF COLORADO AND WYOMING

633 17th Street, Suite 1000

Denver, Colorado 80202

(303) 294-7002

Counsel for Petitioners Bolduan, Gibson,

Six, and Williams

MELODY BRANNON

Federal Public Defender

DANIEL T. HANSMEIER

Appellate Chief

Counsel of Record

KANSAS FEDERAL PUBLIC DEFENDER

500 State Avenue, Suite 201

Kansas City, Kansas 66101

(913) 551-6712

daniel_hansmeier@fd.org

Counsel for Petitioner Dodson

Eric K. Klein

Johnson & Klein, PLLC

1470 Walnut Street, Suite 101

Boulder, CO 80302

(303) 444-1885

Counsel for Petitioner Englehart

__________________________________________________________________

QUESTION PRESENTED

In 34 U.S.C. § 20913(d), Congress delegated to the Attorney General the power to

apply the Sex Offender Registration and Notification Act (SORNA) to individuals

convicted of sex offenses prior to SORNA’s enactment. In Gundy v. United States, 139

S.Ct. 2116 (2019), a four-Justice plurality held that this delegation did not violate the

nondelegation doctrine. Three Justices dissented. Justice Kavanaugh did not

participate. Justice Alito concurred only in the judgment, noting his willingness to

reconsider this Court’s nondelegation jurisprudence.

Gundy’s 4-1-3 fractured decision “resolves nothing.” Gundy, 139 S.Ct. at 2131

(Gorsuch, J., dissenting). Until the full Court revisits Gundy, pre-Act offenders (like

petitioners here) will continue to bring nondelegation-doctrine challenges to their

prosecutions. The sooner the Court revisits Gundy, the better. It is time that this

Court reconsider the approach it has taken to resolve nondelegation challenges. The

question presented here is:

Whether this Court should revisit its nondelegation doctrine precedent and, in

doing so, overrule Gundy and hold that 34 U.S.C. § 20913(d) is an unconstitutional

delegation of legislative authority to the Executive Branch.

RELATED PROCEEDINGS

United States v. Dodson, Case No. 2:18-cr-20048-DDC (D. Kan. Dec. 31, 2018)

United States v. Dodson, Case No. 19-3098 (10th Cir. Aug. 14, 2019)

United States v. Six, Case No. 1:18-cr-00136-WYD (D. Colo. June 28, 2018)

United States v. Six, Case No. 19-1023 (10th Cir. Aug. 14, 2019)

United States v. Williams, Case No. 1:17-cr-00239-SWS (D. Wyo. May 11, 2018)

United States v. Williams, Case No. 18-8053 (10th Cir. Aug. 16, 2019)

United States v. Gibson, Case No. 2:18-cr-00070-NDF (D. Wyo. July 9, 2018)

United States v. Gibson, Case No. 18-8083 (10th Cir. Aug. 16, 2019)

United States v. Bolduan, No. 1:17-cr-00384-CMA) (D. Colo. March 14, 2019)

United States v. Bolduan, No. 19-1050 (10th Cir. Aug. 21, 2019)

United States v. Englehart, No. 2:12-cr-00026-ABJ (D. Wyo. Oct. 16, 2018)

United States v. Englehart, No. 19-8006 (10th Cir. June 25, 2019)

TABLE OF CONTENTS

QUESTION PRESENTED ............................................................................................. i

RELATED PROCEEDINGS........................................................................................... i

TABLE OF CONTENTS ................................................................................................ ii

INDEX TO APPENDIX ................................................................................................ iii

TABLE OF AUTHORITIES CITED ............................................................................ iv

Cases ........................................................................................................................ iv

Statutes ..................................................................................................................... v

Other Authorities .................................................................................................... vi

PETITION FOR WRIT OF CERTIORARI ................................................................... 1

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 2

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED ................................. 2

STATEMENT OF THE CASE ....................................................................................... 4

A. Statutory and Legal Background ....................................................................... 5

B. Proceedings Below ............................................................................................ 12

REASONS FOR GRANTING THE WRIT .................................................................. 14

The fractured decision in Gundy resolved nothing. ........................................... 14

II. This issue is extremely important. ..................................................................... 18

III. The Gundy plurality’s statutory analysis is not a fair reading of SORNA’s

text........................................................................................................................ 19

IV. The Court should revisit, and overrule, the nondelegation doctrine’s

intelligible principle test. .................................................................................... 22

V. These cases are excellent vehicles. ..................................................................... 28

CONCLUSION............................................................................................................. 28

INDEX TO APPENDIX

Appendix A: Tenth Circuit’s Unpublished Decision in Dodson ................................. 1a

Appendix B: Order Denying Dodson’s Motion to Dismiss Indictment ...................... 3a

Appendix C: Tenth Circuit’s Unpublished Decision in Six ........................................ 7a

Appendix D: Order Denying Six’s Motion to Dismiss Indictment ........................... 10a

Appendix E: Tenth Circuit’s Unpublished Decision in Williams............................. 13a

Appendix F: Order Denying Williams’s Motion to Dismiss Indictment .................. 15a

Appendix G: Tenth Circuit’s Unpublished Decision in Gibson ................................ 18a

Appendix H: Order Denying Gibson’s Motion to Dismiss Indictment..................... 21a

Appendix I: Tenth Circuit’s Unpublished Decision in Bolduan .............................. 29a

Appendix J: District Court’s Oral Ruling in Bolduan .............................................. 21a

Appendix K: Tenth Circuit’s Unpublished Decision in Englehart ........................... 37a

Appendix L: Tenth Circuit’s Order Denying Rehearing in Englehart..................... 40a

Appendix M: Order Denying Englehart’s Motion to Dismiss Indictment ............... 41a

iii

TABLE OF AUTHORITIES CITED

PAGE

Cases

Abramski v. United States, 134 S.Ct. 2259 (2014) ..................................................... 10

Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016) ........................................................ 8

Bowsher v. Synar, 478 U.S. 714 (1986) ......................................................................... 7

Carr v. United States, 560 U.S. 438 (2010) ......................................................... passim

Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc.,

467 U.S. 837 (1984)................................................................................................... 10

DOT v. Ass’n of Am. R.R., 135 S.Ct. 1225 (2015) ............................................. 8, 23, 24

Ex Parte United States, 287 U.S. 241 (1932) ................................................................ 7

Field v. Clark, 143 U.S. 649 (1892) ............................................................................. 23

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) .............................. 8

Geier v. Am. Honda Motor Co., 529 U.S. 861 (2000) .................................................... 8

Gundy v. United States, 139 S.Ct. 2116 (2019) .................................................. passim

INS v. Chadha, 462 U.S. 919 (1983) ............................................................................. 7

J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394 (1928) ............................... 11

Landgraf v. USI Film Prods., 511 U.S. 244 (1994) ...................................................... 9

Loving v. United States, 517 U.S. 748 (1996) ............................................................... 8

Mistretta v. United States, 488 U.S. 361 (1989) ........................................................... 7

Nichols v. United States, 136 S.Ct. 1113 (2016) ................................................... 12, 21

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) ............................................. 10, 25

Reynolds v. United States, 565 U.S. 432 (2012).............................................. 20, 21, 25

Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) ........................... 10, 25

Sessions v. Dimaya, 138 S.Ct. 1204 (2018) ................................................................... 9

Smith v. Goguen, 415 U.S. 566 (1974) .......................................................................... 9

Touby v. United States, 500 U.S. 160 (1991) .............................................................. 26

United States v. Apel, 134 S.Ct. 1144 (2014) .............................................................. 10

United States v. Evans, 333 U.S. 483 (1948) .................................................... 9, 25, 26

United States v. George, 228 U.S. 14 (1913) ............................................................... 10

United States v. Kozminski, 487 U.S. 931 (1988) ................................................... 9, 26

United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014) .............................. 12, 13, 14

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77 (1932)..................... 11

USTA v. FCC, 855 F.3d 381 (D.C. Cir. 2017) ............................................................. 18

Wayman v. Southard, 23 U.S. 1 (1825) ................................................................. 11, 23

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001) .............................................. 11

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................... 7

Statutes

18 U.S.C. § 2241 ............................................................................................................. 4

18 U.S.C. § 2250 ......................................................................................................... 3, 4

18 U.S.C. § 2250(a) .............................................................................................. passim

18 U.S.C. § 3231 ............................................................................................................. 2

28 C.F.R. § 72.3 .......................................................................................................... 4, 6

28 U.S.C. § 1254(1) ........................................................................................................ 2

28 U.S.C. § 1291 ............................................................................................................. 2

34 U.S.C. § 20901 ..................................................................................................... 5, 20

34 U.S.C. § 20911(1) ................................................................................................ 5, 20

34 U.S.C. § 20911(5) ...................................................................................................... 5

34 U.S.C. § 20913 ........................................................................................................... 3

34 U.S.C. § 20913(a) ...................................................................................................... 5

34 U.S.C. § 20913(d) ............................................................................................ passim

Adam Walsh Child Protection and Safety Act, Pub. L. No. 109-248, Tit. L,

120 Stat. 587 (2006) .................................................................................................... 5

Minn. Stat. § 609.343................................................................................................... 12

Mo. Stat. § 566.030 ...................................................................................................... 12

Other Authorities

Applicability of the Sex Offender Registration and Notification Act, 72 F.3d.

Reg. 8894 (Feb. 28, 2007) ........................................................................................... 6

Bill of Attainder Clause, Art. I, § 9, .............................................................................. 8

Brett Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring

Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907

(2014)......................................................................................................................... 18

H.R. 4472, 109th Congr. § 111(3) ................................................................................ 22

Rachel E. Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev.

989 (2006)............................................................................................................ 23, 27

S. 1086, 109th Cong. § 104(a)(8) ................................................................................. 22

The Federalist No. 47 (James Madison) (Clinton Rossiter ed., 1961) ......................... 7

U.S. Const. amend VI .................................................................................................. 27

U.S. Const. amend VIII ............................................................................................... 27

U.S. Const. amend. IV ................................................................................................. 27

U.S. Const. amend. V ................................................................................................... 27

U.S. Const. art. I, § 1 ..................................................................................... 2, 7, 23, 24

PETITION FOR WRIT OF CERTIORARI

Petitioners Allen Dodson, Bryan Six, Kendal Ray Williams, Kenneth Roy Gibson,

Eric Ronald Bolduan, and Monty Englehart respectfully petition for a writ of

certiorari to review the judgments of the United States Court of Appeals for the Tenth

Circuit.

OPINIONS BELOW

The Tenth Circuit’s unpublished order in Mr. Dodson’s appeal is available at 775

Fed. Appx. 442, and is included as Appendix A. The district court’s unpublished order

denying Mr. Dodson’s motion to dismiss is available at 2018 WL 6839661, and is

included as Appendix B.

The Tenth Circuit’s unpublished order in Mr. Six’s appeal is available at 775 Fed.

Appx. 443, and is included as Appendix C. The district court’s unpublished order

denying Mr. Six’s motion to dismiss is not available on a commercial legal database

but is included as Appendix D.

The Tenth Circuit’s unpublished order in Mr. Williams’s appeal is available at 775

Fed. Appx. 449, and is included as Appendix E. The district court’s unpublished order

denying Mr. Williams’s motion to dismiss is not available on a commercial legal

database but is included as Appendix F.

The Tenth Circuit’s unpublished order in Mr. Gibson’s appeal is available at 775

Fed. Appx. 446, and is included as Appendix G. The district court’s unpublished order

denying Mr. Gibson’s motion to dismiss is available at 2018 WL 9371677, and is

included as Appendix H.

The Tenth Circuit’s unpublished order in Mr. Bolduan’s appeal is available at 775

Fed. Appx. 455, and is included as Appendix I. The district court’s oral ruling rejecting

Mr. Bolduan’s nondelegation challenge is included as Appendix J.

The Tenth Circuit’s unpublished order in Mr. Englehart’s appeal is available at

772 Fed. Appx. 722, and is included as Appendix K. The Tenth Circuit’s order denying

panel rehearing is included as Appendix L. The district court’s unpublished order

denying Mr. Englehart’s motion to dismiss is not available on a commercial legal

database but is included as Appendix M.

JURISDICTION

The district courts had jurisdiction under 18 U.S.C. § 3231. The Tenth Circuit had

jurisdiction under 28 U.S.C. § 1291. The Tenth Circuit affirmed Mr. Dodson’s

conviction and Mr. Six’s conviction on August 14, 2019. The Tenth Circuit affirmed

Mr. Williams’s conviction and Mr. Gibson’s conviction on August 16, 2019. The Tenth

Circuit affirmed the district court’s ruling imposing a registration requirement as a

condition of Mr. Bolduan’s supervised release on August 21, 2019. The Tenth Circuit

affirmed Mr. Englehart’s conviction on June 25, 2019, and denied Mr. Englehart’s

petition for rehearing on July 23, 2019. Justice Sotomayor has extended the time for

Mr. Englehart to petition for certiorari to December 26, 2019. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND OTHER PROVISIONS INVOLVED

Article I, Section 1 of the U.S. Constitution provides:

Section 1. All legislative Powers herein granted shall be vested in a

Congress of the United States.

U.S. Const. art. I, § 1.

18 U.S.C. § 2250 provides in relevant part:

(a) In general.--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.

34 U.S.C. § 20913 provides in relevant part:

(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.

...

(d) Initial registration of sex offenders unable to comply with

subsection (b)

The Attorney General shall have the authority to specify the applicability of

the requirements of this subchapter to sex offenders convicted before the

enactment of this chapter 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).

28 C.F.R. § 72.3 provides:

The requirements of the Sex Offender Registration and Notification Act apply

to all sex offenders, including sex offenders convicted of the offense for which

registration is required prior to the enactment of that Act.

Example 1. A sex offender is federally convicted of aggravated sexual abuse

under 18 U.S.C. 2241 in 1990 and is released following imprisonment in 2007.

The sex offender is subject to the requirements of the Sex Offender

Registration and Notification Act and could be held criminally liable under 18

U.S.C. 2250 for failing to register or keep the registration current in any

jurisdiction in which the sex offender resides, is an employee, or is a student.

Example 2. A sex offender is convicted by a state jurisdiction in 1997 for

molesting a child and is released following imprisonment in 2000. The sex

offender initially registers as required but relocates to another state in 2009

and fails to register in the new state of residence. The sex offender has violated

the requirement under the Sex Offender Registration and Notification Act to

liable under 18 U.S.C. 2250 for the violation because he traveled in interstate

commerce.

STATEMENT OF THE CASE

Last term, this Court granted certiorari in Gundy v. United States, 139 S.Ct. 2116

(2019), to resolve whether 34 U.S.C. § 20913(d) is an unconstitutional delegation of

legislative authority to the Executive Branch. This Court (without Justice

Kavanaugh’s participation) fractured in Gundy. As the three-Justice dissent noted,

the four-Justice plurality opinion “resolves nothing.” 139 S.Ct. at 2131 (Gorsuch, J.,

dissenting). The petitioner in Gundy has petitioned for rehearing. Gundy v. United

States, No. 16-1829 (July 11, 2019). The petition is still pending. This Court should

grant the petition for rehearing in Gundy and hold this petition pending Gundy’s

disposition on rehearing. Two other petitions have also been relisted, Paul v. United

States, 17-8830 & Caldwell v. United States, 18-6852. If this Court grants either of

those petitions, it should hold this petition pending that case’s disposition. Otherwise,

this Court should grant this petition to reconsider the question presented (but not

resolved) in Gundy.

As Justice Alito remarked in his concurrence in Gundy, it is also time for this

Court to revisit the nondelegation doctrine. 139 S.Ct. at 2131. As it exists now, the

doctrine is ineffective. If the Court does not grant the petition for rehearing in Gundy,

it should use this petition to adopt an approach to the nondelegation doctrine that

actually enforces the Constitution’s separation of powers. Under a meaningful

approach to legislative delegations, § 20913(d)’s delegation to the Executive Branch

would not pass constitutional muster.

A. Statutory and Legal Background

In 2006, Congress enacted the Adam Walsh Child Protection and Safety Act ("the

Adam Walsh Act"), Pub. L. No. 109-248, Tit. L, 120 Stat. 587 (2006), to establish a

comprehensive national registration system for sex offenders. 34 U.S.C. § 20901, et

seq. The Sex Offender Registration and Notification Act (“SORNA”) comprises a

significant portion of the Adam Walsh Act. See 34 U.S.C. §§ 20901-20929. SORNA

requires certain sex offenders to register in jurisdictions where they reside, work, or

attend school. 34 U.S.C. §§ 20911(5), 20913(a); see also 34 U.S.C. § 20911(1) (defining

a “sex offender” as “an individual who was convicted of a sex offense”). SORNA

requires these offenders to report periodically in person, and to provide additional

information, including school and employment locations, DNA, finger and palm

prints, vehicle descriptions, and Internet identifiers. 34 U.S.C. §§ 20914, 20916,

20918. SORNA also makes it a federal felony for a sex offender who is required to

knowingly fail to register or update a sex-offender registration. 18 U.S.C. § 2250(a).

Congress did not decide when or how SORNA’s registration requirements, and its

related criminal penalties, apply to the more than 500,000 people convicted of a sex

offense before the law’s July 27, 2006 enactment.1 Instead, Congress delegated to the

Attorney General the power to decide SORNA’s retrospective application to these preAct offenders. Section 20913(d) provides, intra alia: “The Attorney General shall have

the authority to specify the applicability of the requirements of this subchapter to sex

offenders convicted before the enactment of this chapter . . . and to prescribe rules for

the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).2 The question

presented here is whether § 20913(d)’s delegation violates the constitutional

separation of powers, as embodied in the nondelegation doctrine.

The Constitution establishes a tripartite system of government that separates

1 It is our position that Congress also did not decide whether SORNA’s registration requirements, and

its related criminal penalties, apply to pre-Act offenders. We address this issue in Section II, infra, as

it has divided this Court and is in need of resolution.

2 It was not until six months after SORNA’s enactment that the Attorney General issued guidance on

SORNA’s applicability to pre-Act offenders. This interim rule stated that SORNA requires registration

of “all sex offenders, including sex offenders convicted of the offense for which registration is required

prior to the enactment of the Act.” 28 C.F.R. § 72.3; Applicability of the Sex Offender Registration and

Notification Act, 72 F.3d. Reg. 8894 (Feb. 28, 2007). The four-Justice plurality in Gundy concluded

that this “rule has remained in force ever since.” 139 S.Ct. at 2128. In Section II, infra, we dispute that

point in light of additional rules promulgated by subsequent Attorneys General. See 139 S.Ct. at 2132

(Gorsuch, J., dissenting).

power among the three federal branches. All legislative powers are vested in

Congress. U.S. Const. art. I, § 1. Laws must be made according to “a single, finely

wrought and exhaustively considered, procedure,” including bicameralism and

presentment. INS v. Chadha, 462 U.S. 919, 951 (1983). In contrast, the Executive

Branch enforces the laws passed by Congress. Ex Parte United States, 287 U.S. 241,

251 (1932).

The nondelegation doctrine prohibits Congress from delegating its legislative

powers to the Executive. See, e.g., Mistretta v. United States, 488 U.S. 361, 371-372

(1989). “If Congress could pass off its legislative power to the executive branch, . . .

the entire structure of the Constitution would make no sense.” Gundy, 139 S.Ct. at

2134-2135 (Gorsuch, J., dissenting) (cleaned up).

At its core, the nondelegation doctrine protects individual liberty. Mistretta, 488

U.S. at 380; Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952). The

Framers understood that “[t]he accumulation of all powers, legislative, executive, and

judiciary, in the same hands . . . may justly be pronounced the very definition of

tyranny.” The Federalist No. 47, at 301 (James Madison) (Clinton Rossiter ed., 1961);

see also Bowsher v. Synar, 478 U.S. 714, 722 (1986) (“Even a cursory examination of

the Constitution reveals the influence of Montesquieu’s thesis that checks and

balances were the foundation of a structure of government that would protect

liberty.”). The people, via the Constitution, vested “the power to prescribe rules

limiting their liberties in Congress alone.” Gundy, 139 S.Ct. at 2133 (Gorsuch, J.,

dissenting).

The nondelegation doctrine also promotes democratic accountability. “Article I’s

precise rules of representation, member qualifications, bicameralism, and voting

procedure make Congress the branch most capable of responsive and deliberate

lawmaking.” Loving v. United States, 517 U.S. 748, 757-758 (1996). Both deliberation

and responsiveness are key: the Constitution’s specific, structured lawmaking

process promotes the regularity and stability that the rule of law requires, while

Congress’s representative nature ensures broad participation in lawmaking. Gundy,

139 S.Ct. at 2134 (Gorsuch, J., dissenting). Precluding Congress from delegating its

lawmaking function also ensures that citizens can readily identify the source of laws,

thereby preventing government actors from “wield[ing] power without owning up to

the consequences.” DOT v. Ass’n of Am. R.R., 135 S.Ct. 1225, 1234 (2015) (Alito, J.,

concurring). The “lines of accountability” are clear; the “sovereign people know,

without ambiguity, whom to hold accountable for the laws they have to follow.”

Gundy, 139 S.Ct. at 2134 (Gorsuch, J., dissenting) (cleaned up).

Finally,

the

nondelegation

doctrine

preserves

federalism.

Within

our

constitutional framework, states maintain their sovereign interests, in part, through

their representative’s participation in the federal legislature, particularly the Senate.

See Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 550-551 (1985). “[T]he

structural safeguards inherent in the normal operation of the legislative process

operate to defend state interests from undue infringement.” Geier v. Am. Honda

Motor Co., 529 U.S. 861, 907 (2000) (Stevens, J., dissenting).

This Court has enforced the nondelegation doctrine most rigorously in the

criminal context. See, e.g., Bank Markazi v. Peterson, 136 S.Ct. 1310, 1327 (2016)

(noting that Congress may single out parties to a civil suit, whereas the Bill of

Attainder Clause, Art. I, § 9, as an implementation of separation of powers, prevents

Congress from singling out persons for criminal punishment); Landgraf v. USI Film

Prods., 511 U.S. 244, 270 (1994) (permitting retroactive civil liability, whereas the Ex

Post Facto Clause, in order to uphold separation of powers principles, prohibits

retroactive criminal punishment). This Court has made clear that “defining crimes”

is a “legislative” function, United States v. Evans, 333 U.S. 483, 486 (1948), and that

Congress cannot delegate “the inherently legislative task” of determining what

conduct “should be punished as crimes,” United States v. Kozminski, 487 U.S. 931,

949 (1988). To “unite the legislative and executive powers in the same person would

be to mark the end of any meaningful enforcement of our separation of powers and

invite the tyranny of the majority that follows when lawmaking and law enforcement

responsibilities are united in the same hands.” Gundy, 139 S.Ct. at 2144-2145

(Gorsuch, J., dissenting) (cleaned up).

The void-for-vagueness doctrine reflects this special prohibition on congressional

delegation of criminal lawmaking power. Vague criminal statutes are prohibited both

because individuals are entitled to sufficient notice as to what constitutes a crime and

to prevent legislatures from “abdicat[ing] their responsibilities for setting the

standards of the criminal law.” Smith v. Goguen, 415 U.S. 566, 574-575 (1974). The

void-for-vagueness doctrine is thus “a corollary of the separation of powers—

requiring that Congress, rather than the executive or judicial branch, define what

conduct is sanctionable and what it not.” Sessions v. Dimaya, 138 S.Ct. 1204, 1212

(2018).

Because the Constitution forbids the legislature from transferring power to define

crimes, the Court has also withheld Chevron3 deference for agencies’ interpretations

of criminal statutes. The Court’s refusal to grant Chevron deference in the criminal

context reflects the Court’s repeated admonition that Congress, not the Executive,

must specify the terms of criminal laws. See, e.g., Abramski v. United States, 134 S.Ct.

2259, 2274 (2014) (rejecting agency interpretation of criminal statute as irrelevant

because “criminal laws are for courts, not the Government, to construe”); United

States v. Apel, 134 S.Ct. 1144, 1151 (2014) (“we have never held that the

Government’s reading of a criminal statute is entitled to any deference”).

There was a time when this Court enforced the nondelegation doctrine in the

criminal context. See, e.g., Schechter Poultry Corp. v. United States, 295 U.S. 495,

529, 542-543 (1935) (holding that Congress could not delegate to the Executive the

power to approve codes of fair competition promulgated by trade associations, when

the “[v]iolations of the provisions of the codes are punishable as crimes”); Panama

Refining Co. v. Ryan, 293 U.S. 388 (1935) (holding, with respect to legislation

providing for criminal sanctions, that Congress unconstitutionally delegated its

legislative power to the Executive Branch); United States v. George, 228 U.S. 14, 2022 (1913) (rejecting government’s argument that federal agency could promulgate

regulations creating a federal crime to fail to abide by agency requirements). But that

is no longer true (and has not been true for the last 84 years). Gundy, 139 S.Ct. at

2131 (Alito, J., concurring).

3 Chevron U.S.A., Inc. v. Natural Resource Defense Council, Inc., 467 U.S. 837 (1984).

Under the “intelligible principle” test, if “Congress shall lay down by legislative

act an intelligible principle to which the person or body [to whom power is delegated]

is directed to conform, such legislative action is not a forbidden delegation of

legislative power.” J.W. Hampton Jr., & Co. v. United States, 276 U.S. 394, 409

(1928). With respect to the Executive Branch, this test has required little more than

that Congress “fix[] a primary standard,” leaving the Executive “to fill up the details.”

United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 85 (1932). The doctrine

is at its least utility in areas of “less interest” and “relatively minor matters.”

Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 475 (2001); Wayman v. Southard, 23

U.S. 1, 43 (1825). And while this Court has sometimes commented that the doctrine

requires “substantial guidance,” Whitman, 531 U.S. at 475, when delegations affect

“important subjects,” Wayman, 23 U.S. at 43, at no point during the last 84 years has

this Court applied the doctrine to strike down a legislative delegation as

unconstitutional.

The four-Justice plurality in Gundy upheld § 20913(d)’s delegation under the

intelligible principle test. 139 S.Ct. at 2130. The three dissenters criticized the

intelligible principle test as a “mutated version” of prior precedent with “no basis in

the original meaning of the Constitution, in history, or even in the decision from

which it was plucked.” 139 S.Ct. at 2139 (Gorsuch, J., dissenting). Justice Alito

signaled his willingness to reconsider the test. 139 S.Ct. at 2131 (Alito, J.,

concurring). Justice Kavanaugh took no part in Gundy because he was not yet on the

Court. In light of this history, we can discern no good reason for this Court not to

grant rehearing in Gundy. But if not, review is appropriate here.

B. Proceedings Below

1. In 1995, prior to SORNA’s enactment, Allen Dodson was convicted in Missouri

of statutory rape under Mo. Stat. § 566.030. In 2016, Mr. Dodson moved to Kansas,

but failed to register as a sex offender in Kansas. In 2018, a federal grand jury in

Kansas charged Mr. Dodson with failure to register as a sex offender under 18 U.S.C.

§ 2250(a). Pet. App. 3a. Mr. Dodson moved to dismiss the indictment on nondelegation

grounds. Pet. App. 4a. He argued that Congress’s delegation to the Attorney General

to determine the applicability of SORNA to pre-Act offenders violated the

nondelegation doctrine. Pet. App. 4a. The district court denied the motion in light of

binding Tenth Circuit precedent. Pet. App. 5a (citing United States v. Nichols, 775

F.3d 1225 (10th Cir. 2014), rev’d on other grounds, 136 S.Ct. 1113 (2016)). The Tenth

Circuit summarily affirmed in light of Nichols and the plurality opinion in Gundy.

Pet. App. 2a.

2. In February 2006, prior to SORNA’s enactment, Bryan Six was convicted in

Minnesota of attempted second-degree criminal sexual conduct under Minn. Stat.

§ 609.343. Pet. App. 10a. Mr. Six later moved to Colorado but did not register as a sex

offender there. Mr. Six was indicted in Colorado for failure to register under § 2250(a),

and he moved to dismiss the indictment on the grounds that SORNA’s delegation to

the Attorney General of the power to decide the statute’s retroactive application

violated the constitutional nondelegation doctrine. Pet. App. 10a. The district court

denied the motion under Nichols. Pet. App. 10a-11a. The Tenth Circuit summarily

affirmed based on Nichols and the Gundy plurality opinion. Pet. App. 7a-9a.

3. Mr. Kendal Ray Williams was charged in Wyoming with failure to register

under § 2250(a). Pet. App. 15a. Like Mr. Dodson and Mr. Six, Mr. Williams was

required to register because of a conviction that pre-dated SORNA’s enactment. Pet.

App. 15a. He moved to dismiss the indictment on the grounds that SORNA’s

delegation to the Attorney General of the power to decide the statute’s retroactive

application violated the constitutional nondelegation doctrine. Pet. App. 15a-16a. The

district court denied the motion under Nichols, Pet. App. 16a. The Tenth Circuit

affirmed under Nichols and the Gundy plurality opinion. Pet. App. 13a-14a.

4. Mr. Kenneth Roy Gibson was also charged in Wyoming with failure to register

under § 2250(a) based on a conviction that pre-dated SORNA’s enactment. Pet. App.

21a. He also moved to dismiss the indictment on nondelegation grounds. Pet. App.

23a. The district court denied the motion under Nichols. Pet. App. 23a-24a. The Tenth

Circuit affirmed under Nichols and the Gundy plurality opinion. Pet. App. 18a-20a.

5. In 1993, before SORNA’s enactment, Mr. Eric Ronald Bolduan was convicted

in Minnesota of attempted criminal sexual assault. Pet. App. 29a-30a. He was

required to register as a predatory offender in Minnesota. Id. In January 2019, Mr.

Bolduan was convicted in a federal district court in Colorado of transmitting threats

by interstate communications and stalking by electronic means. Pet. App. 30a. Before

sentencing, Mr. Bolduan objected to the imposition of a mandatory condition of

supervised release requiring that he register under SORNA. Pet. App. 33a-34a. Mr.

Bolduan argued that his offenses of conviction were not qualifying sex offenses under

SORNA and that his 1993 Minnesota offense—which predated SORNA’s enactment

by almost thirteen years—could not serve as a basis for the SORNA registration

requirement. Id. Specifically, Mr. Bolduan argued that SORNA’s delegation to the

Attorney General of the power to decide the statute’s retroactivity violated the

constitutional nondelegation doctrine. Pet. App. 30a-31a. The district court disagreed

and imposed the supervised release condition. Pet. App. 35a. The Tenth Circuit

affirmed under the plurality opinion in Gundy. Pet. App. 31a.

6. In 1997, prior to SORNA’s enactment, Mr. Englehart was convicted in Illinois

of aggravated criminal sexual abuse. Pet. App. 38a. Mr. Englehart thereafter moved

to Wyoming, but he did not register there. In 2012, a federal grand jury in Wyoming

indicted Mr. Englehart for, inter alia, failure to register as a sex offender, 18 U.S.C.

§ 2250(a). Pet. App. 38a. He, too, moved to dismiss the indictment on nondelegation

grounds. Pet. App. 38a. The district court denied the motion under Nichols, and the

Tenth Circuit affirmed under the Gundy plurality opinion. Pet. App. 39a. Mr.

Englehart petitioned for panel rehearing in light of the fractured decision in Gundy

and the petition for rehearing filed in Gundy. Pet. App. 40a. The Tenth Circuit denied

the petition for rehearing. Pet. App. 40a.

This timely joint petition follows.

REASONS FOR GRANTING THE WRIT

I. The fractured decision in Gundy resolved nothing.

The four-Justice plurality in Gundy held two things: (1) Congress delegated to the

Executive Branch only when and how to implement SORNA against pre-Act

offenders, not whether to apply SORNA to pre-Act offenders, 139 S.Ct. at 2123-2129;

and (2) this delegation passed constitutional muster under the intelligible principle

test, id. at 2129-2130. Despite the plurality opinion, as the dissent noted, there is no

good reason to think that Gundy resolved either of these issues. 139 S.Ct. at 2131

(Gorsuch, J., dissenting). In fact, the plurality opinion “resolves nothing.” Id.

1a. On the first issue, four Justices concluded that § 20913(d) requires the

Attorney General to apply SORNA to all pre-Act offenders. Gundy, 139 S.Ct. at 2123.

According to these four Justices, § 20913(d) only delegates to the Attorney General

the task of applying SORNA to these pre-Act offenders “as soon as feasible.” Id. The

plurality concluded that this delegation “falls well within constitutional bounds.” Id.

at 2130.

b. The three-Justice dissent took the opposite view. Gundy, 139 S.Ct. at 21452148. According to the dissent, § 20913(d) invests “the Attorney General with sole

power to decide whether and when to apply SORNA’s requirements to pre-Act

offenders.” Id. at 2148. The dissent concluded that this delegation was plainly

unconstitutional (“delegation running riot”). Id. at 2148.

c. Justice Alito concurred only in the judgment. Id. at 2130-2131. Justice Alito’s

four-sentence concurrence focused solely on the nondelegation doctrine (and his

willingness to reconsider the intelligible principle test) and said nothing whatsoever

as to the scope of SORNA’s delegation to the Attorney General. Id.; see also id. at

2131 (Gorsuch, J., dissenting) (“Justice ALITO . . . does not join . . . the plurality’s . .

. statutory analysis”).

Justice Alito answered that question, however, in his dissent in Carr v. United

States, 560 U.S. 438 (2010). And his answer is on all fours with the three-Justice

dissent in Gundy. “Congress elected not to decide for itself whether [SORNA’s]

registration requirements—and thus § 2250(a)’s criminal penalties—would apply to

persons who had been convicted of qualifying sex offenses before SORNA took effect.

Instead, Congress delegated to the Attorney General the authority to decide that

question.” Carr, 560 U.S. at 466 (Alito, J., dissenting) (emphasis added). In reaching

this conclusion, Justice Alito studied at least six lower court decisions on this issue.

Id. at 466 n.6. Justice Alito found that the “clear negative implication of th[e]

delegation [was] that, without such a determination by the Attorney General, the Act

would not apply to those with pre-SORNA sex-offense convictions.” Id.

d. As it currently stands, four Justices believe that § 20913(d) does not delegate to

the Attorney General the power to apply (or not) SORNA to pre-Act offenders (just

when and how to do so feasibly), whereas four Justices believe that § 20913(d) in fact

delegates to the Attorney General the power to apply (or not) SORNA to pre-Act

offenders. Compare Gundy, 139 S.Ct. at 2123-219 (plurality), with Gundy, 139 S.Ct.

at 2145-2148 (dissent) & Carr, 560 U.S. at 466 (Alito, J., dissenting). Only Justice

Kavanaugh can break this tie. This Court must rehear Gundy, with Justice

Kavanaugh participating. If not, this Court should grant this petition so that a full

nine-member Court can actually resolve this important issue.

e. Resolution is particularly important because the four-Justice plurality

acknowledged that, if § 20913(d) delegated to the Attorney General the power to

determine SORNA’s applicability to pre-Act Offenders (“to require them to register,

or not, as she sees fit, and to change her policy for any reason at any time”), as the

three Gundy dissenters and Justice Alito have concluded, then the Court “would face

a nondelegation question.” Gundy, 139 S.Ct. at 2123. In other words, if the delegation

includes whether to apply SORNA to pre-Act offenders, then it is likely that at least

seven Justices (the four in the plurality and the three in dissent) would find the

delegation unconstitutional.

As we see it, the better reading of Justice Alito’s concurrence in Gundy, when

combined with his dissent in Carr, is that Justice Alito would find that this broader

type of delegation (delegating whether SORNA applies at all) passes constitutional

muster under the intelligible principle test (as currently understood). Gundy, 139

S.Ct. at 2131 (Alito, J., concurring). This is significant in two respects. First, it

indicates just how weak the intelligible principle test is (and the need to be rid of it).

And second, it confirms that Justice Alito’s concurrence should not be treated as a

logical subset of the plurality opinion. Whereas the plurality found a more limited

delegation constitutional under the intelligible principle test without questioning

that test, Justice Alito found an expansive delegation constitutional under the

intelligible principle test, yet indicated his willingness to abandon that test. There is

no consistency between the two. This Court was hopelessly fractured in Gundy.

Again, this Court (with Justice Kavanaugh) should rehear Gundy. If not, this Court

should grant this petition.

2a. The calculus is the same with respect to the constitutional nondelegation issue.

The four-Justice plurality did not indicate any concern with the nondelegation

doctrine’s intelligible principle test. Gundy, 139 S.Ct. at 2130. But the three-Justice

dissent did, noting that the doctrine “has no basis in the original meaning of the

Constitution, in history, or even in the decision from which it was plucked.” Id. at

2139 (Gorsuch, J., dissenting). The dissent also noted the doctrine’s abuse: “where

some have claimed to see intelligible principles many less discerning readers have

been able only to find gibberish.” Id. at 2140 (cleaned up). Justice Alito also indicated

his willingness to reconsider the intelligible principle test. 139 S.Ct. at 2131 (Alito,

J., concurring).

With a 4-to-4 Justice split on this exceptionally important issue, there is no reason

why a full 9-member Court should not rehear Gundy. Like other unconstitutional

delegations, § 20913(d) does not provide a “clear congressional authorization” to

require registration of pre-Act offenders. See USTA v. FCC, 855 F.3d 381, 417 (D.C.

Cir. 2017) (Kavanaugh, J., dissenting from the denial of rehearing en banc). If we

expect Congress to speak clearly when delegating “decisions of vast economic and

political significance” to agencies, then so to when Congress delegates authority to

the Executive Branch to define the (civil and criminal) reach of a national sex offender

registry. See id. It is one thing for the Executive to “act unilaterally to protect liberty.”

Brett Kavanaugh, Our Anchor for 225 Years and Counting: The Enduring

Significance of the Precise Text of the Constitution, 89 Notre Dame L. Rev. 1907, 1931

(2014). “[B]ut with limited exceptions, the President cannot act, except pursuant to

statute, to infringe liberty and imprison a citizen.” Id. Whether § 20913(d) is just such

a statute is an issue that this Court failed to resolve in Gundy. This Court should

rehear Gundy. If not, this Court should grant this petition.

II. This issue is extremely important.

1. Review is also necessary because this issue is extremely important. There are

some 500,000 pre-Act offenders. Gundy, 139 S.Ct. at 2131 (Gorsuch, J., dissenting).

Whether SORNA applies to a half-million people is obviously a question of

exceptional importance. We know this because of the grant of certiorari in Gundy

itself. This Court would not have granted certiorari in Gundy if the issue is

unimportant. Because the fractured decision in Gundy failed to resolve anything,

review is necessary again.

2. It is also critically important that this Court revisit the nondelegation doctrine’s

intelligible principle test. It is a test that was born from historical accident and that

“has no basis in the original meaning of the Constitution.” Gundy, 139 S.Ct. at 2139

(Gorsuch, J., dissenting). It is a test condemned by judges and scholars “representing

a wide and diverse range of views” “as resting on misunderstood historical

foundations” Id. at 2139-2140 (cleaned up). It is a test that “has been abused to permit

delegations of legislative power that on any other conceivable account should be held

unconstitutional.” Id. at 2140. It is a test that allows even the broadest delegations –

delegations to the executive to define the reach of a crime – to pass constitutional

muster. 139 S.Ct. at 2131 (Alito, J., dissenting). It is a test that considers “small-bore”

broad legislative delegations that affect the liberty of hundreds of thousands of

individuals. 139 S.Ct. at 2130. Its ineffectiveness is stratospheric. This Court should

rehear Gundy. If not, this Court should grant this petition to reconsider, and

ultimately overrule, the intelligible principle test.

III. The Gundy plurality’s statutory analysis is not a fair reading of SORNA’s

text.

Section 20913(d) delegates to the Attorney General “the authority to specify the

applicability of the [registration] requirements . . . to sex offenders convicted before

the enactment of this chapter . . . and to prescribe rules for the registration of any

such sex offenders.” The Gundy plurality found that this language requires the

Attorney General to apply SORNA to all pre-Act offenders; the “Attorney General’s

discretion extends only to considering and addressing feasibility issues.” 139 S.Ct. at

2123-2124. The plurality found that this Court had already effectively decided that

issue in Reynolds v. United States, 565 U.S. 432 (2012). Gundy, 139 S.Ct. at 21242126. The plurality further relied on SORNA’s stated purpose (to establish a

“comprehensive national” sex offender registry), 34 U.S.C. § 20901, its past-tense

definition of sex offender (“an individual who was convicted of a sex offense”), 34

U.S.C. § 20911(1) (emphasis added), and its legislative history, Gundy, 139 S.Ct. at

2126-2129. Finally, the four-Justice plurality concluded that no Attorney General had

ever excluded pre-Act offenders from SORNA’s reach. Id. at 2128 n.3.

The three-Justice dissent rightfully disagreed with all of this. 139 S.Ct. at 21452148 (Gorsuch, J., dissenting). As has Justice Alito. Carr, 560 U.S. at 466 n.6. To

begin, Reynolds held that SORNA’s registration requirements “do not apply to preAct offenders until the Attorney General specifies that they do.” 565 U.S. at 435. That

holding must mean that it is the Attorney General who decides whether SORNA

applies to pre-Act offenders. “Reynolds plainly understood the statute itself as

investing the Attorney General with sole power to decide whether and when to apply

SORNA’s requirements to pre-Act offenders.” Gundy, 139 S.Ct. at 2148 (Gorsuch, J.,

dissenting).

SORNA’s purpose – to establish a comprehensive national registry, 34 U.S.C.

§ 20901 – does not mention feasibility and does not attempt to guide the Attorney

General’s discretion at all. Gundy, 139 S.Ct. at 2146 (Gorsuch, J., dissenting). And

“comprehensive” does not mean “coverage to the maximum extent feasible.” Id. We

know this because SORNA exempts a wide cast of sex offenders from its registration

requirements. Id. at 2146 n.97 (citing, intra alia, 34 U.S.C. § 20915 (setting a lessthan-life duration registration requirement for the majority of sex offenders)); Nichols

v. United States, 136 S.Ct. 1113, 1118-19 (2016) (rejecting Government’s argument

that SORNA’s purpose means it must be interpreted to cover offenders who move

abroad); Reynolds, 565 U.S. at 442 (rejecting Government’s argument that SORNA’s

purpose means the statute must be construed to cover pre-Act offenders of its own

force); Carr, 560 U.S. at 443, 454-57 (rejecting Government’s argument that SORNA’s

purpose requires construing its criminal provision to cover

offenders who traveled interstate before the Act’s effective date).

SORNA’s definition of “sex offender” as an individual who “was convicted of a sex

offense” is also not enough to command the registration of all sex offenders, as there

are individuals who meet the definition of a “sex offender,” yet still are not required

to register under SORNA. See, e.g., 34 U.S.C. § 20915 (durational requirements that

permit the majority of sex offenders to time out of any registration requirements);

Gundy, 139 S.Ct. at 2147. At most, this definition confirms that Congress wanted the

Attorney General to have the option of covering pre-Act offenders.

The plurality’s use of committee reports and statements by individual legislators

is also not persuasive evidence of the meaning of a statute. Gundy, 139 S.Ct. at 21472148 (Gorsuch, J., dissenting). “[E]ven taken on their own terms, these statements

do no more than confirm that some members of Congress hoped and wished that the

Attorney General would exercise his discretion to register at least some pre-Act

offenders.” Id. at 2148. The statutory history of SORNA actually undermines the

plurality’s opinion. While a House of Representatives bill would have made the law

applicable to pre-Act offenders, H.R. 4472, 109th Congr. § 111(3) (as passed by House

Mar. 8, 2006), a Senate bill left the retroactivity question to the Attorney General, S.

1086, 109th Cong. § 104(a)(8) (as passed by Senate, May 4, 2006). Congress ultimately

enacted a final version similar to the Senate bill. Carr, 560 U.S. at 466 (Alito, J.,

dissenting).

SORNA’s history undermines the plurality’s view in another respect. According to

the Gundy plurality, the Attorney General’s initial interim rule applying SORNA to

pre-Act offenders was never altered by subsequent Attorneys General. 139 S.Ct. at

2128 n.3. As the dissent noted, however, “different Attorneys General have exercised

their discretion in different ways.” 139 S.Ct. at 2132. Attorney General Mukasey, for

instance, issued guidelines “directing States to register some but not all past

offenders.” Id. These differing guidelines confirm that § 20913(d) delegates to the

Attorney General whether (not just how and when) to apply SORNA to pre-Act

offenders.

In any event, as mentioned above, the Court is currently split 4-to-4 on this issue.

It should rehear Gundy, with Justice Kavanaugh participating, to resolve the issue.

If not, it should resolve the issue via this petition.

IV. The Court should revisit, and overrule, the nondelegation doctrine’s

intelligible principle test.

The intelligible principle test should have never come about. Its application has

been a “misadventure” with no basis in the original meaning of the Constitution.

Gundy, 139 S.Ct. at 2139, 2141 (Gorsuch, J., dissenting). This Court should

reconsider the nondelegation doctrine and adopt a different approach. Gundy, 139

S.Ct. at 2131 (Alito, J., concurring).

1. Under an originalist interpretation of the Constitution, the legislative nature

of § 20913(d)’s delegated powers ends the inquiry and requires this Court to

invalidate the delegation. See, e.g., DOT, 135 S.Ct. at 1246 (Thomas, J., concurring)

(“[T]he original understanding of the federal legislative power . . . require[s] that the

Federal Government create generally applicable rules of private conduct only through

the constitutionally prescribed legislative process.”); Gundy, 139 S.Ct. at 2131 (Alito,

J., concurring) (“The Constitution confers on Congress certain ‘legislative [p]owers,’

Art. I, § 1, and does not permit Congress to delegate them to another branch of the

Government.”). “That congress cannot delegate legislative power to the president is a

principle universally recognized as vital to the integrity and maintenance of the

system of government ordained by the Constitution.” Field v. Clark, 143 U.S. 649,

602 (1892). This “bright-line rule approach [] requires each branch to exercise only a

certain type of power and to follow all of the constitutional procedures associated with

the exercise of that power.” Rachel E. Barkow, Separation of Powers and the Criminal

Law, 58 Stan. L. Rev. 989, 1035 (2006).

Under this test, this is an easy case. It is up to Congress, not the Executive, to

determine whether, when, and how SORNA, and its concomitant criminal penalties,

apply to pre-Act offenders. Wayman, 23 U.S. at 42-43 (“It will not be contended that

Congress can delegate . . . powers which are strictly and exclusively legislative. . . .

[Those powers] must be entirely regulated by the legislature itself.”). “The

Constitution promises that only the people’s elected representatives may adopt new

federal laws restricting liberty.” Gundy, 139 S.Ct. at 2131 (Gorsuch, J., dissenting).

The Framers understood “that it would frustrate the system of government ordained

by the Constitution if Congress could merely announce vague aspirations and then

assign others the responsibility of adopting legislation to realize its goals.” Id.

(quotations omitted). “Through the Constitution, after all, the people had vested the

power to prescribe rules limiting their liberties in Congress alone. No one, not even

Congress, had the right to alter that arrangement.” Id.; see also DOT, 135 S.Ct. at

1237 (Alito, J., concurring) (“Congress, vested with enumerated ‘legislative Powers,’

Art. I, § 1, cannot delegate its ‘exclusively legislative’ authority at all.”).

Yet, § 20913(d) “purports to endow the nation’s chief prosecutor with the power to

write his own criminal code governing the lives of a half-million citizens.” Gundy, 139

S.Ct. at 2131 (Gorsuch, J., dissenting). In doing so, gone is the need to “win approval

of two Houses of Congress” and to secure “the President’s approval or obtain enough

support to override his veto.” Id. at 2134. Gone is the separation of powers. Id. (“If

Congress could pass off its legislative power to the executive branch, the vesting

clauses, and indeed the entire structure of the Constitution, would make no sense.”)

(cleaned up).

[E]nforcing the separation of powers isn’t about protecting institutional

prerogatives or governmental turf. It’s about respecting the people’s sovereign

choice to vest the legislative power in Congress alone. And it’s about

safeguarding a structure designed to protect their liberties, minority rights,

fair notice, and the rule of law. So when a case or controversy comes within the

judicial competence, the Constitution does not permit judges to look the other

way; we must call foul when the constitutional lines are crossed. Indeed, the

framers afforded us independence from the political branches in large part to

encourage exactly this kind of fortitude to do our duty as faithful guardians of

the Constitution.

Id. (cleaned up). This Court should strike § 20913(d) as an unlawful delegation of

legislative authority to the Executive Branch.

2. This Court might also adopt a nondelegation doctrine similar to the one used

prior to the intelligible principle test. Gundy, 139 S.Ct. at 2135-2138 (Gorsuch, J.,

dissenting). This Court could ask: (1) despite the delegation, is Congress still required

to make all underlying policy decisions; (2) has Congress made the application of its

rule dependent on executive fact-finding; (3) does the delegation at issue overlap with

authority the Constitution vests separately in another branch; and (4) has Congress

offered meaningful guidance with respect to its delegation. Id. at 2136-2137. When

this Court has asked these questions, it has readily (and rightfully) struck down

statutes under the nondelegation doctrine. Id. at 2137-2138 (discussing A.L.A.

Schechter Poultry, 295 U.S. 495, and Panama Refining Co., 293 U.S. 388); see also

Evans, 333 U.S. 483 (refusing to read a penalty provision into a criminal statute

where the statute itself did not provide the necessary penalties).

Under this test, § 20913(d) is easily an unconstitutional delegation of legislative

authority. The statute provides no meaningful guidance to the Attorney General. It

does not simply leave “the Attorney General with only details to dispatch,” but

instead delegates all of the relevant policy decisions to the Executive Branch. Gundy,

139 S.Ct. at 2143 (Gorsuch, J., dissenting). “As the government itself admitted in

Reynolds, SORNA leaves the Attorney General free to impose on 500,000 pre-Act

offenders all of the statute's requirements, some of them, or none of them.” Id. “In the

end, there isn’t a single policy decision concerning pre-Act offenders on which

Congress even tried to speak . . . .” Id. “Because members of Congress could not reach

consensus” on this issue, this was “one of those situations where they found it

expedient to hand off the job to the executive and direct there the blame for any later

problems that might emerge.” Id.

SORNA is also not “an example of conditional legislation subject to executive factfinding.” Id. “Instead, it gave the Attorney General unfettered discretion to decide

which requirements to impose on which pre-Act offenders.” Id. SORNA also “does not

involve an area of overlapping authority with the executive.” Id. “If the separation of

powers means anything, it must mean that Congress cannot give the executive

branch a blank check to write a code of conduct governing private conduct for a halfmillion people.” Id. at 2144.

3. At a minimum, this Court should forego the intelligible principle test in this

criminal case. “[D]efining crimes” is a “legislative” function. Evans, 333 U.S. at 486.

Congress cannot delegate “the inherently legislative task” of determining what

conduct “should be punished as crimes.” Kozminski, 487 U.S. at 949. Nor can

Congress leave to another branch the authority to adopt criminal penalties. Evans,

333 U.S. at 495. To “unite the legislative and executive powers in the same person

would be to mark the end of any meaningful enforcement of our separation of powers

and invite the tyranny of the majority that follows when lawmaking and law

enforcement responsibilities are united in the same hands.” Gundy, 139 S.Ct. at 21442145 (Gorsuch, J., dissenting) (cleaned up).

This Court has left unresolved whether more specific guidance is needed “when

Congress authorizes another Branch to promulgate regulations that contemplate

criminal sanctions.” Touby v. United States, 500 U.S. 160, 165-166 (1991). At a

minimum, this Court should revisit the nondelegation doctrine to require more

guidance in the criminal context. See, e.g., Barkow, 58 Stan. L. Rev. at 990

(advocating for a “more stringent enforcement of the separation of powers in criminal

cases, where it is most needed”). The power to punish is constitutionally distinct, as

reflected in the Bill of Rights (and, specifically, the Fourth, Fifth, Sixth, and Eighth

Amendments). It is reflected in a range of doctrines, from the rule of lenity to voidfor-vagueness principles. And it is manifest in the Constitution’s prohibitions against

criminal ex post facto laws and bills of attainder.

Under a heightened standard, § 20913(d) is unconstitutional. “[I]t’s hard to see

how giving the nation’s chief prosecutor the power to write a criminal code rife with

his own policy choices might be permissible.” Gundy, 139 S.Ct. at 2144 (Gorsuch, J.,

dissenting). It is also “hard to see how Congress may give the Attorney General the

discretion to apply or not apply any or all of SORNA’s requirements to pre-Act

offenders, and then change his mind at any time.” Id. “If the separation of powers

means anything, it must mean that Congress cannot give the executive branch a

blank check to write a code of conduct governing private conduct for a half-million

people.”

The question presented here has broad implications. As Justice Gorsuch sounded

in dissent, it is not “hard to imagine how the power at issue in this case—the power

of a prosecutor to require a group to register with the government on pain of weighty

criminal penalties—could be abused in other settings.” 139 S.Ct. at 2144.

To allow the nation's chief law enforcement officer to write the criminal laws

he is charged with enforcing—to ‘unite the legislative and executive powers in

the same person—would be to mark the end of any meaningful enforcement of

our separation of powers and invite the tyranny of the majority that follows

when lawmaking and law enforcement responsibilities are united in the same

hands.

Id. at 2144-2145 (cleaned up). Whatever else the nondelegation doctrine might

protect against, it must protect against this. Because the intelligible principle test

falls short even in this regard, this Court should revisit that test and replace it with

a more meaningful one.

V. These cases are excellent vehicles.

If this Court declines to rehear Gundy, this joint petition is an excellent vehicle to

resolve the issue left unresolved in Gundy. Each petitioner was convicted of a sex

offense prior to SORNA’s enactment. Pet. App. 3a, 7a, 15a, 21a, 29a-30a, 38a. Each

petitioner moved to dismiss the federal failure-to-register charge, 18 U.S.C. § 2250(a),

via a pretrial motion to dismiss (or objected to a condition requiring registration as a

sex offender). Pet. App. 3a, 10a, 15a, 21a, 30a, 33a, 38a. Each petitioner thereafter

appealed the denial of his motion to dismiss to the Tenth Circuit (or the imposition of

a sex-offender-registration condition), who affirmed each conviction (and sentence) on

the merits. Pet. App. 1a-2a, 7a-9a, 13a-14a, 18s-20a, 31a, 37a-39a. The issue was

preserved in every case. There are no vehicle problems that would preclude this Court

from resolving, on the merits, the issue left unresolved in Gundy.

CONCLUSION

This Court should grant rehearing in Gundy. If not, this Court should grant this

petition.

Appellate Case: 19-3098

Document: 010110212201

Date Filed: 08/14/2019

UNITED STATES COURT OF APPEALS

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

August 14, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

No. 19-3098

(D.C. No. 2:18-CR-20048-DDC-1)

(D. Kan.)

ALLEN DODSON,

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.

_________________________________

This panel has determined unanimously that oral argument would not

materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2);

10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

This matter comes on for consideration of the parties’ Joint Motion for

Summary Disposition. Upon consideration thereof, the motion is granted and the

district court’s judgment is affirmed.

The defendant was convicted, following the entry of a conditional guilty plea,

of failure to register as a sex offender, in violation of the Sex Offender Registration

This order and judgment is not binding precedent, except under the doctrines

of law of the case, res judicata, and collateral estoppel. It may be cited, however, for

its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appendix A

Appellate Case: 19-3098

Document: 010110212201

Date Filed: 08/14/2019

Page: 2

and Notification Act (“SORNA”), 18 U.S.C. § 2250. He was sentenced to 10 months’

incarceration plus five years of supervised release.

On appeal, the only argument the defendant presents is that application of

SORNA to him, a pre-act offender, violates the nondelegation doctrine. This court

has rejected that argument in United States v. Nichols, 775 F.3d 1225, 1230-31 (10th

Cir. 2014), rev’d on other grounds sub nom. Nichols v. United States, 136 S.Ct. 1113

(2016). See also Gundy v. United States, 139 S.Ct. 2116 (2019).

Accordingly, the judgment of the district court is AFFIRMED. The mandate

shall issue forthwith.

Entered for the Court

Per Curiam

Case 2:18-cr-20048-DDC Document 24 Filed 12/31/18 Page 1 of 4

Appellate Case: 19-3098

Document: 010110193628

Date Filed: 07/08/2019

Page: 27

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 18-20048-01-DDC

ALLEN DODSON,

Defendant.

MEMORANDUM AND ORDER

This matter is before the court on defendant Allen Dodson’s Motion to Dismiss

Indictment (Doc. 20). Mr. Dodson asserts that the statute under which he was convicted, the Sex

Offender Registration and Notification Act (“SORNA”), is unconstitutional. The government

has filed a Response (Doc. 23). For reasons explained below, the court denies Mr. Dodson’s

Motion.

Background

A grand jury indicted Mr. Dodson on July 25, 2018, under 18 U.S.C. § 2250. The grand

jury found that, “[f]rom on or about August 22, 2017[,] up to and including on or about July 25,

2018,” Mr. Dodson was required to register under SORNA because of an earlier conviction in

Morgan County, Missouri. Doc. 1 at 1. The grand jury also found that Mr. Dodson had failed to

Mr. Dodson does not challenge the substance of the Indictment against him. Rather, he

challenges the constitutionality of a portion of the statute under which the grand jury indicted

him. Mr. Dodson was convicted of the crime underlying his Indictment before Congress enacted

SORNA. Congress delegated authority under SORNA to the United States Attorney General to

Appendix B

Vol. 1 - pg. 27

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Appellate Case: 19-3098

Document: 010110193628

Date Filed: 07/08/2019

Page: 28

decide how to apply the statute to individuals like Mr. Dodson—defendants whose convictions

predated SORNA’s enactment. Mr. Dodson argues that Congress’s delegation of this authority

itself is unconstitutional under the nondelegation doctrine.

Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 on July 27,

2006. 34 U.S.C. § 20901 et seq. This statute includes SORNA, which requires states to

“maintain . . . jurisdiction-wide sex offender registr[ies],” among other mandates. 34 U.S.C.

§ 20912. Specifically, SORNA outlines rules for offenders’ initial registrations and their duty to

update these registrations when they change “name, residence, employment, or student status.”

34 U.S.C. § 20913(c). Mr. Dodson challenges 34 U.S.C. § 20913(d):

The Attorney General shall have the authority to specify the applicability of the

requirements of this subchapter to sex offenders convicted before the enactment of

this chapter 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).

34 U.S.C. § 20913(d).

Mr. Dodson asserts that Congress, when delegating this discretion to the Attorney

General, failed to “‘articulate any policy or standard that would serve to confine the discretion’”

of the Attorney General. Doc. 20 at 5 (quoting Mistretta v. United States, 488 U.S. 361, 374 n.7

(1989)). This failure, Mr. Dodson contends, renders Congress’s delegation “‘constitutionally

invalid.’” Id. (quoting Mistretta, 488 U.S. at 374 n.7). Mr. Dodson asserts that SORNA allows

the Attorney General, “without any explicit guidance[,] . . . to decide whether to apply SORNA

retroactively.” Id.

But the government argues that the Tenth Circuit and every other Circuit except the

Federal Circuit all have rejected constitutionality challenges to SORNA under the nondelegation

doctrine. Doc. 23 at 6. The government asserts that the Tenth Circuit in United States v. Nichols

Vol. 1 - pg. 28

Case 2:18-cr-20048-DDC Document 24 Filed 12/31/18 Page 3 of 4

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Document: 010110193628

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Page: 29

explicitly identified Congress’s statutory policy statement that “‘convey[ed] the intelligible

principles upon which the Attorney General’s delegated authority must be based.’” Id. at 6–7

(citing United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014), rev’d on other grounds,

Nichols v. United States, 136 S. Ct. 1113 (2016)).

II.

Analysis

The Tenth Circuit’s rejection of a constitutionality challenge to SORNA under the

nondelegation doctrine binds this court.1 The Circuit concluded—as the government argues—

that SORNA includes a clear congressional policy statement about the statute’s intent: “‘to

protect the public from sex offenders and offenders against children’ by establishing ‘a

comprehensive national system for the registration of those offenders.’” Nichols, 775 F.3d at

1231 (quoting 42 U.S.C. § 16913(d) (transferred to 34 U.S.C. § 20913(d))). Congress also

plainly articulated the “boundaries of the authority it delegated to the Attorney General.” Id.

This authority comprises “a single, narrow decision: to determine SORNA’s application to

preenactment sex offenders.” Id. “The Attorney General cannot do much more than simply

determine whether or not SORNA applies to those individuals.” Id. at 1231–32 (internal

quotations omitted). Congress explicitly provided that the Attorney General would exercise this

authority. Id. at 1232. And Congress specified the location, timing, method, and required

information for sex offender registration under SORNA, as well as penalties for failing to

The court recognizes that an appeal based in part on a constitutional challenge to SORNA under the

nondelegation doctrine currently is pending before the United States Supreme Court. United States v.

Gundy, 695 F. App’x 639 (2d Cir. 2017), cert. granted, 138 S. Ct. 1260 (2018).

Vol. 1 - pg. 29

Case 2:18-cr-20048-DDC Document 24 Filed 12/31/18 Page 4 of 4

Appellate Case: 19-3098

Document: 010110193628

Date Filed: 07/08/2019

Page: 30

General’s authority. Id. The Tenth Circuit thus held that SORNA withstands constitutional

challenges based on the nondelegation doctrine. Id.

Here, Mr. Dodson’s constitutional challenge mirrors the challenge defendant Lester

Nichols brought against SORNA in Nichols. But, as the Circuit has concluded, SORNA does not

violate the nondelegation doctrine. Instead, Congress outlined a clear policy, several boundaries,

and a specific agency to enforce SORNA’s retroactive application to pre-enactment sex

offenders. The court thus denies Mr. Dodson’s Motion to Dismiss Indictment based solely on

this constitutional challenge.

IT IS THEREFORE ORDERED THAT defendant Allen Dodson’s Motion to Dismiss

Indictment (Doc. 20) is denied.

IT IS SO ORDERED.

Dated this 31st day of December, 2018, at Kansas City, Kansas.

s/ Daniel D. Crabtree

Daniel D. Crabtree

United States District Judge

Vol. 1 - pg. 30

Appellate Case: 19-1023

Document: 010110212065

Date Filed: 08/14/2019

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

August 14, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

No. 19-1023

(D.C. No. 1:18-CR-00136-WYD-1)

(D. Colo.)

BRYAN SIX,

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HOLMES, MURPHY, and CARSON, Circuit Judges.

_________________________________

In 2006, Defendant Bryan Six pled guilty to attempted kidnapping and attempted

criminal sexual conduct in the second degree in Minnesota state court. Later in 2006,

Congress enacted the Sex Offense Registration and Notification Act (“SORNA”).

SORNA established a comprehensive, national sex offender registration system. In

SORNA, Congress gave the Attorney General the authority to determine SORNA’s

retroactive reach. Exercising that authority, the Attorney General concluded that

After examining the briefs and the appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. It may be cited, however, for its persuasive value consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Appendix C

Appellate Case: 19-1023

Document: 010110212065

Date Filed: 08/14/2019

Page: 2

SORNA should apply to all pre-Act offenders—thus requiring Defendant to comply with

the new registration scheme.

Defendant failed to register. A federal grand jury indicted Defendant, charging

him with Failure to Register in violation of 18 U.S.C. § 2250(a)(1), 2(B), and (3).

Defendant filed a motion to dismiss the indictment, asserting that Congress

unconstitutionally delegated legislative power to the Attorney General when it authorized

him to determine SORNA’s applicability to sex offenders convicted before the enactment

of the statute.

In his motion, Defendant acknowledged that Tenth Circuit precedent forecloses

his argument. See United States v. Nichols, 775 F.3d 1225, 1232 n.3 (10th Cir. 2014)

(concluding that the Attorney General’s ability to determine SORNA’s retroactive

application does not violate the nondelegation doctrine), rev’d on other grounds by

Nichols v. United States, 136 S. Ct. 1113 (2016). Defendant, nevertheless, preserved this

argument because the United States Supreme Court granted certiorari to address this

issue. The district court denied Defendant’s motion to dismiss, concluding that it was

bound by our decision in Nichols.

On June 20, 2019, the Supreme Court of the United States issued an opinion

upholding Congress’s SORNA delegation. Gundy v. United States, 139 S. Ct. 2116,

2129, 2131 (2019). Because the Supreme Court’s decision in Gundy did not disturb our

prior holding in Nichols that Congress did not violate the nondelegation doctrine—which

Defendant concedes—Defendant’s argument fails.

Appellate Case: 19-1023

Document: 010110212065

Date Filed: 08/14/2019

Accordingly, we AFFIRM.

Entered for the Court

Joel M. Carson III

Circuit Judge

Page: 3

Case 1:18-cr-00136-WYD Document 27 Filed 06/28/18 USDC Colorado Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Case No. 18-cr-00136-WYD

UNITED STATES OF AMERICA,

Plaintiff,

1. BRYAN SIX,

Defendant.

ORDER

THIS MATTER is before the Court on Defendant Bryan Six’s Motion to Dismiss

the Indictment. (ECF No. 23).

On February 27, 2006, Defendant pled guilty to attempted kidnapping and

attempted criminal sexual conduct in the second degree. Due to these convictions,

Defendant was required to register as a sex offender under the Sex Offender

Registration and Notification Act (“SORNA”), although SORNA was not enacted until

July 27, 2006. On March 20, 2018, Defendant was indicted on a violation of 18 U.S.C.

§ 2250(a)(1), (2)(B), and (3) for failing to register as a sex offender. Defendant moves

to dismiss that indictment, arguing that Congress violated the non-delegation doctrine

when it enacted SORNA.

Defendant asserts that SORNA, specifically 34 U.S.C. § 20913(d), is an

unconstitutional delegation of legislative power to the extent it authorizes the Attorney

General “to specify the applicability of the requirements of this subchapter to sex

offenders convicted before the enactment of this chapter.” In other words, Defendant

Appendix D

10a

Case 1:18-cr-00136-WYD Document 27 Filed 06/28/18 USDC Colorado Page 2 of 3

challenges the Attorney General’s authority to apply SORNA’s requirements and

penalties to predicate sex offenses which predate SORNA. Defendant contends this

provision violates the non-delegation doctrine because “Congress failed to articulate

any policy to guide the Attorney General in determining the law’s applicability to pre-Act

offenders.” (ECF No. 23 at 4).

As Defendant acknowledges, the Tenth Circuit has held the Attorney General’s

authority to apply SORNA retroactively does not violate the non-delegation doctrine. In

United States v. Nichols, the Tenth Circuit concluded that the Attorney General’s ability

to determine SORNA’s retroactive application under 42 U.S.C. 16913(d), now codified

as 34 U.S.C. § 20913(d), “does not violate the nondelegation doctrine” and “passes

constitutional muster.” 775 F.3d 1225, 1232 n. 3 (10th Cir. 2014) rev’d on other

grounds by Nichols v. United States, 136 S.Ct. 1113 (2016). The Tenth Circuit has

since reaffirmed this holding. United States v. Cotonuts, 633 Fed. App’x 501, 506-07

(10th Cir. 2016) (“Because we are bound by our controlling decision in Nichols, we

conclude that [defendant’s] nondelegation challenge fails.”).

Defendant also highlights that the United States Supreme Court has granted

certiorari on the issue of “[w]hether SORNA’s delegation of authority to the Attorney

General to issue regulations under 42 U.S.C. § 16913(d) violates the nondelegation

doctrine.” Petition for Writ of Certiorari, Gundy v. United States, 2017 WL 8132120

(U.S. Sept. 20, 2017) (17-6086); see Gundy v. United States, 695 Fed. App’x 639 (2nd

Cir. 2017), cert granted in part, 86 U.S.L.W. 3438 (U.S. March. 5, 2018) (No. 17-6086).

But, the “granting of certiorari does not disturb the binding nature of” Nichols, United

States v. Thomas, 2018 WL 2656559, at *2 (N.D. Iowa June 4, 2018), and I am bound

11a

Case 1:18-cr-00136-WYD Document 27 Filed 06/28/18 USDC Colorado Page 3 of 3

by Nichols. See, e.g., Colo. Rail Passenger Ass’n v. Fed. Transit Admin., 843

F.Supp.2d 1150, 1165 n.6 (D. Colo. 2011) (“[T]his Court is bound by Tenth Circuit law

and, despite Plaintiff’s invitation, cannot ignore binding precedent on this issue.”).

Based on the foregoing, Defendant’s Motion to Dismiss the Indictment (ECF No.

23) is DENIED.

The parties are ordered to file a joint status report by July 9, 2018 advising the

court of the next likely steps to occur in this matter.

Dated: June 28, 2018.

BY THE COURT:

/s/ Wiley Y. Daniel

Wiley Y. Daniel

Senior United States District Judge

12a

Appellate Case: 18-8053

Document: 010110213556

Date Filed: 08/16/2019

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

August 16, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

KENDAL RAY WILLIAMS,

a/k/a Kendall Ray Williams,

No. 18-8053

(D.C. No. 1:17-CR-00239-SWS-1)

(D. Wyo.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.

_________________________________

Kendal Ray Williams pleaded guilty to one count of failing to register and to

update his registration as required by the Sex Offender Registration and Notification

Act (SORNA), 34 U.S.C. § 20913, in violation of 18 U.S.C. § 2250(a). He was

sentenced to 15 months’ imprisonment and five years’ supervised release.

Mr. Williams’s conditional plea allowed him to appeal from the district court’s

denial of his motion to dismiss the indictment. In that motion Mr. Williams had

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument. This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata, and collateral estoppel. It

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

Appendix E

13a

Appellate Case: 18-8053

Document: 010110213556

Date Filed: 08/16/2019

Page: 2

argued that 34 U.S.C. § 20913(d) violates the constitutional nondelegation doctrine

by allowing the Attorney General to decide whether the registration requirement

applies to offenders convicted before SORNA was enacted. Mr. Williams recognized

that his argument was foreclosed by this circuit’s precedent. See United States v.

Nichols, 775 F.3d 1225, 1231-32 (10th Cir. 2014), rev’d on other grounds, 136 S. Ct.

1113, 1118-19 (2016). But he sought to preserve the argument in light of the

Supreme Court’s grant of certiorari to consider whether § 20913(d) violates the

nondelegation doctrine. See United States v. Gundy, 695 F. App’x 639 (2d Cir.

2017), cert. granted, 138 S. Ct. 1260 (2018) (No. 17-6086). The district court denied

the motion to dismiss, citing Nichols.

Mr. Williams’s appeal raises only the nondelegation argument. After the

parties filed their briefs, the Supreme Court held that § 20913(d) does not violate the

nondelegation doctrine. See Gundy v. United States, 139 S. Ct. 2116, 2121, 2129

(2019). This court thus directed the parties to file supplemental memorandum briefs

addressing Gundy’s impact on this appeal. Mr. Williams concedes his appeal was

contingent on the success of the petitioner in Gundy, and Gundy’s outcome therefore

precludes his appeal. The government agrees.

Because Gundy decided Mr. Williams’s only appeal point adversely to him,

the district court’s judgment is affirmed.

Entered for the Court

Harris L Hartz

Circuit Judge

14a

Case 1:17-cr-00239-SWS Document 40 Filed 05/11/18 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF WYOMING

U>- V/ fOjMJMp

mm 11 p,i ,,50

UNITED STATES OF AMERICA,

Plaintiff,

Case No. 17-CR-239-SWS

KENDAL RAY WILLIAMS,

Defendant.

ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

This matter comes before the Court on the Defendant's Motion to Dismiss

Indictment (EOF No. 37) and the Government's response (ECF No. 38). Having

considered the parties' arguments, reviewed the record herein, and being otherwise fully

advised, the Court denies the motion.

Defendant Kendal Williams is charged with two counts offailing to register as a sex

offender as required by the Sex Offender Registration and Notification Act (SORNA).

(ECF No. 13.) He was convicted of running an interstate prostitution ring several years

before SORNA was enacted and was not ordered to register as a sex offender at the time

of his sentencing. See United States v. Williams, 291 F.3d 1180 (9th Cir. 2002). He

contends Congress violated the nondelegation doctrine at the time it passed SORNA

because it improperly delegated to the United States Attorney General the determination

Page 1 of3

Appendix F

15a

Case 1:17-cr-00239-SWS Document 40 Filed 05/11/18 Page 2 of 3

whether SORNA applies to individuals who, like Mr. Williams, were convicted of a sex

offense before SORNA became law.

Under the U.S. Constitution,"[a]ll legislative Powers herein granted shall be

vested in a Congress ofthe United States." U.S. Const., art. I, § 1. From this

language and based on separation of powers principles, the Supreme Court

"has derived the nondelegation doctrine; that Congress may not

constitutionally delegate its legislative power to another branch of

Government." Toubyv. United States, 500 U.S. 160, 165, 111 S.Ct. 1752,

114 L.Ed.2d 219(1991). Nonetheless, Congress may delegate authority to a

different branch, and "[s]o long as Congress shall lay down by legislative act

an intelligible principle to which the person or body authorized to exercise

the delegated authority is directed to conform, such legislative action is not

a forbidden delegation of legislative power." Mistrettav. United States, 488

U.S. 361,372, 109 S.Ct. 647, 102 L.Ed.2d 714(1989)(brackets and internal

quotation marks omitted). The Supreme Court has further explained that an

intelligible principle exists so long as "Congress clearly delineates [1] the

general policy, [2] the public agency which is to apply it, and [3] the

boundaries ofthis delegated authority."Id. at 372-73, 109 S.Ct. 647.

United States v. Nichols, 775 F.3d 1225, 1230-31 (10th Cir. 2014), rev'd on other

grounds, 136 S, Ct. 1113 (2016).

As both Mr. Williams and the Government note in their documents, the Tenth

Circuit has previously considered this argument and found no violation of the

nondelegation doctrine.' See id. at 1230-32. Specifically, the Tenth Circuit found

Congress clearly delineated (1) the general policy driving SORNA,(2) that the Attorney

General was the agency to apply the authority, and (3) the boundaries of the authority

delegated to the Attorney General. Id. at 1231. Consequently, Mr. Williams' argument is

foreclosed in this Court by the Tenth Circuit's decision in Nichols. See Dobbs v. Anthem

'The Court notes that Mr. Williams' attorney was required by Rules 3.1 and 3.3 ofthe Wyoming Rules ofProfessional

Conduct to disclose the Nichols case as controlling precedent that is directly adverse to the defense's argument, and

commends him for doing so here.

Page 2 of3

16a

Case 1:17-cr-00239-SWS Document 40 Filed 05/11/18 Page 3 of 3

Blue Cross and Blue Shield, 600 F.3d 1275, 1279 (10th Cir. 1990)("a district court is

bound by decisions made by its circuit court").

Mr. Williams presents this motion to ensure the issue is preserved for appeal

because the United States Supreme Court recently granted a petition for certiorari on the

exact question from a case out ofthe Second Circuit. See Gundy v. United States, No. 176086, 138 S, Ct. 1260 (2018) (granting writ of certiorari on the question of whether

SORNA improperly delegated legislative authority to the Attorney General); Pet. Writ of

Cert., 2017 WL 8132120, at *16-19 (filed Sep. 20, 2017). Because the Tenth Circuit's

decision in Nichols is binding on this Court, Mr. Williams' motion must be denied, but the

issue has been properly preserved for appeal pending the Supreme Court's decision in

Gundy.

IT IS THEREFORE ORDERED that the Defendant's Motion to Dismiss

Indictment(ECF No. 37)is hereby DENIED.

DATED this #

day of May,2018.

Skavdahl

United States District Judge

Page 3 of3

17a

Appellate Case: 18-8083

Document: 010110213565

Date Filed: 08/16/2019

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

August 16, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

KENNETH ROY GIBSON,

a/k/a John Worth,

No. 18-8083

(D.C. No. 2:18-CR-00070-NDF-1)

(D. Wyo.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before TYMKOVICH, Chief Judge, BALDOCK and HARTZ, Circuit Judges.

_________________________________

Kenneth Roy Gibson pleaded guilty to one count of failing to register and to

update his registration as required by the Sex Offender Registration and Notification

Act (SORNA), 34 U.S.C. § 20913, in violation of 18 U.S.C. § 2250(a). The district

court sentenced him to 21 months’ imprisonment and five years’ supervised release.

Mr. Gibson’s conditional plea allowed him to appeal from the district court’s

denial of his motion to dismiss the indictment. In that motion Mr. Gibson had

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument. This order and judgment is not binding precedent,

except under the doctrines of law of the case, res judicata, and collateral estoppel. It

may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1

and 10th Cir. R. 32.1.

Appendix G

18a

Appellate Case: 18-8083

Document: 010110213565

Date Filed: 08/16/2019

Page: 2

argued, among other things, that 34 U.S.C. § 20913(d) violates the constitutional

nondelegation doctrine by allowing the Attorney General to decide whether the

registration requirement applies to offenders convicted before SORNA was enacted.

Mr. Gibson recognized that his argument was foreclosed by this circuit’s precedent.

See United States v. Nichols, 775 F.3d 1225, 1231-32 (10th Cir. 2014), rev’d on other

grounds, 136 S. Ct. 1113, 1118-19 (2016). But he sought to preserve the argument in

light of the Supreme Court’s grant of certiorari to consider whether § 20913(d)

violates the nondelegation doctrine. See United States v. Gundy, 695 F. App’x 639

(2d Cir. 2017), cert. granted, 138 S. Ct. 1260 (2018) (No. 17-6086). The district

court denied the motion to dismiss, citing Nichols and further noting that this court,

on direct appeal, had “specifically rejected Gibson’s argument that his prior

conviction should not qualify because it predated SORNA’s enactment.” R. Vol. I

at 54.

Mr. Gibson’s appeal raises only the nondelegation argument. After the parties

filed their briefs, the Supreme Court held that § 20913(d) does not violate the

nondelegation doctrine. See Gundy v. United States, 139 S. Ct. 2116, 2121, 2129

(2019). This court thus directed the parties to file supplemental memorandum briefs

addressing Gundy’s impact on this appeal. Mr. Gibson concedes his appeal was

contingent on the success of the petitioner in Gundy, and Gundy’s outcome therefore

precludes his appeal. The government agrees.

19a

Appellate Case: 18-8083

Document: 010110213565

Date Filed: 08/16/2019

Page: 3

Because Gundy decided Mr. Gibson’s only appeal point adversely to him, the

district court’s judgment is affirmed.

Entered for the Court

Harris L Hartz

Circuit Judge

20a

Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 1 of 8

IN THE UNITED STATES DISTRICT^^oi]^ v;"6r^;;n^

r'.- ini

)\Ji"

11:39

tXT/Cl:L y

FOR THE DISTRICT OF WYOMING^

■' o t j:: V t '•) -1

UNITED STATES OF AMERICA,

u'i — > i_. •' • —

Plaintiff,

Case No: 18-CR-70-F

vs.

KENNETH ROY GIBSON,

Defendant.

ORDER DENYING MOTION TO DISMISS INDICTMENT

This matter is before the Court on Defendant Kenneth Roy Gibson's (Gibson)

Motion to Dismiss Indictment. The Court has reviewed the motion, response and reply.

The Court finds a hearing is not required.

DISCUSSION

Factual Background

Gibson was convicted in the State of Colorado on April 12, 1993 for Third Degree

Sexual Assault. As a result of this conviction, Gibson was required to register as a sex

offender. In 2008, the Government charged Gibson under 18 U.S.C § 2250 for Failure to

with 5 years of supervised release.

After his initial release to federal probation, Gibson violated his probation several

times. Most recently in 2017, he violated conditions of his release and this Court sent him

back to federal prison. Gibson served his time at USP Marion, Illinois, and was released

Appendix H

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 2 of 8

on December 15,2017 with no further supervision. The BOP provided Gibson a bus ticket

from Marion, Illinois to Cheyenne, Wyoming.

On March 16, 2018, the grand jury charged Gibson by Indictment with a single

count of failing to register and update his registration as required by the Sex Offender

Registration Notification Act(SORNA) in violation of 18 U.S.C. § 2250(a) from on or

about December 20, 2017 to March 12, 2018. Gibson filed a motion to dismiss seeking

dismissal of the Indictment for three reasons. First Gibson claims he did not voluntarily

engage in interstate travel as required under SORNA. Second, Gibson argues that even if

the Court finds the travel between Wyoming and Illinois is sufficient to meet the interstate

travel element of SORNA, it should dismiss the Indictment because the Government

"manufactured jurisdiction" by transporting Gibson from Wyoming to Illinois while he

was in custody and then by paying for a bus ticket for him to return from Illinois to

Wyoming. Finally, Gibson challenges the Constitutionality of SORNA based on

Congress' improper delegation of authority to the Attorney General.

SORNA

Congress passed SORNA to create a comprehensive national registry for sex

offenders. 34 U.S.C. § 20901 ("In order to protect the public from sex offenders and

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

against the victims listed below. Congress ...establishes a comprehensive national system

for the registration of[sex] offenders ... ."). SORNA requires a sex offender to register

in each state where he resides, is an employee, and is a student. 34 U.S.C. § 20913(a). An

offender who moves across state lines and fails to register or an offender who is required

22a

Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 3 of 8

to register as a result of a federal conviction and fails to register can be charged with a

federal crime. 18 U.S.C. § 2250(a).

Relevant to Gibson's motion, Congress did not decide whether sex offenders who

committed offenses before SORNA took effect were required to register. 34 U.S.C.

§ 20913(d). Rather, Congress left this decision to the Attorney General. See 34 U.S.C.

§ 20913(d)("The Attorney General shall have the authority to specify the applicability of

the requirements ofthis subchapter to sex offenders convicted before the enactment ofthis

chapter . . . ."). In 2007, the Attorney General issued a rule extending SORNA's

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. As a

result, Gibson's qualifying conviction in 1993 subjects him to SORNA's registration

requirements.

1. Constitutional Challenge to SONAR

For purposes of preserving the issue, Gibson claims SORNA is unconstitutional

because Congress improperly delegated authority to the Attorney General to determine

whether to apply SORNA retroactively. However, Gibson recognizes this argument is

foreclosed by Tenth Circuit precedent. The Tenth Circuit found SORNA does not violate

the nondelegation principle. United States v. Nichols, 775 F.3d 1225, 1231 (10th Cir.

2014), rev'd on other grounds, 136 S.Ct. 1113(2016). Additionally, the Tenth Circuit has

specifically rejected Gibson's argument that his prior conviction should not qualify because

it predated SORNA's enactment. United States v. Gibson, 348 F. App'x 392, 394 (10th

Cir. 2009)

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 4 of 8

While the Court recognizes this issue is currently pending before the United States

Supreme Court in Gundy v. United States, -- S. Ct. —,No. 17-6086, the United States

Supreme Court has not issued a ruling in that case and this Court is boimd by the Tenth

Circuit precedent. For these reasons,the Court finds SORNA is not unconstitutional.

2. Whether the Indictment is Defective

Gibson filed his motion to dismiss, but failed to provide the Court the necessary

framework for determining the motion. Gibson asserts that his motion is brought under

Fed. R. Crim. P. 12(b)(2), which relates to motions for lack of jurisdiction. However,

Gibson fails to provide the Court with any analysis of how the Court lacks jurisdiction in

this case. The Court's jurisdiction for criminal cases is found at 18 U.S.C. § 3231 and

provides "[t]he district courts ofthe United States shall have originaljurisdiction, exclusive

of the courts of the States, of all offenses against the laws of the United States." While

Gibson challenges whether the Court can prove the offense charged in the Indictment, this

does not implicate the Court's jurisdiction over this case.

Rather, it appears Gibson brings this motion under Fed. R. Crim. P. 12(b)(3)(B) for

failure to state a claim. Specifically, Federal Rule of Criminal Procedure 12(b)(3)(B)

allows a motion to dismiss for failure to state a claim, if the motion can be disposed of

without a trial on the merits. Fed. R. Crim. P. 12(b)(3)(B). This is a challenge to the

sufficiency of the Indictment. In considering the sufficiency of the indictment, the Tenth

Circuit has stated:

"An indictment is sufficient if it sets forth the elements ofthe offense

charged, puts the defendant on fair notice of the charges against which he

must defend, and enables the defendant to assert a doublejeopardy defense."

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 5 of 8

United States v. Dashney, 117 F.3d 1197,1205(10th Cir. 1997). Challenging

an indictment is not a means of testing the strength or weakness of the

government's case, or the sufficiency of the government's evidence. United

States V. Hall,20 F.3d 1084, 1087(10th Cir.1994). Rather,"[a]n indictment

should be tested solely on the basis of the allegations made on its face, and

such allegations are to be taken as true." Id, See also United States v.

Sampson,371 U.S. 75,78-79,83 S.Ct. 173,9 L.Ed.2d 136(1962)(finding it

irrelevant that charges had not been established by evidence, because at a

motion to dismiss "the indictment must be tested by its sufficiency to charge

an offense"). Courts should therefore avoid considering evidence outside the

indictment when testing the indictment's legal sufficiency. Hall, 20 F.3d at

1087.

United States v. Todd, 446 F.3d 1062,1067(10th Cir. 2006).

However,in Todd, the Tenth Circuit also recognized that:

In "limited circumstances," however,this Court has held that a district court

may "dismiss charges at the pretrial stage ... where the operative facts are

undisputed and the government fails to object to the district court's

consideration of those undisputed facts in making the determination

regarding a submissible case." Hall,20 F.3d at 1088. Pretrial dismissal based

on undisputed facts is a determination that "as a matter of law, the

government is incapable of proving its case beyond a reasonable doubt." Id,

Dismissal in this manner is the "rare exception," not the rule. Id, Dismissals

under this exception are not made on account ofa lack ofevidence to support

the government's case, but because undisputed evidence shows that, as a

matter oflaw,the Defendant could not have committed the offense for which

he was indicted.

Todd,446 F.3d at 1068.

Gibson claims the Indictment fails to state an offense under 18 U.S.C. § 2250

because his interstate travel was involuntary. Gibson asserts that his travel was compelled

by the Government. Gibson argues the Government transported him out of Wyoming and

housed him in Illinois. While acknowledging that Gibson was not in BOP custody when

he returned to Wyoming, Gibson claims the interstate travel was not of his own volition

because the Government transported him from Wyoming in the first place.

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 6 of 8

To prove a violation of 18 U.S.C. § 2250, the Government must prove Gibson:(1)

was required to register under SORNA; "(2) he knowingly failed to comply with the

obligation; and(3)he traveled in interstate or foreign commerce." United States v. Forster,

549 F. App'x 757,760(10th Cir. 2013). Gibson argues that the element ofinterstate travel

includes a "voluntariness" component.

While this case could potentially fall within one of the "rare exceptions" where the

Court could consider undisputed facts on a motion to dismiss, there are insufficient and

unclear undisputed facts in this case. Assuming the statute requires the interstate travel to

be voluntary, whether Gibson's travel was voluntary is a fact specific issue. The

undisputed facts are that Gibson was transported from Wyoming to Illinois to serve a term

of imprisonment. After his release he had no remaining term of supervision. The BOP

provided him a bus ticket to Cheyenne, Wyoming. However,from that point there are facts

in both Gibson and the Government's brief that are not clear if they are undisputed. For

example,the Government asserts that Gibson requested to return to Cheyenne, Wyoming.

At this stage, the Court fmds that considering this issue on the merits is premature. Rather,

the Court will only consider whether the allegations in the Indictment are sufficient to

establish that Gibson violated SORNA.

The Indictment in this case charges that:

Beginning on or about December 20, 2017, and continuing through

on or about March 12, 2018, in the District of Wyoming, the Defendant,

KENNETH ROY GIBSON, a/k/a John Worth, who is required to register

under the Sex Offender Registration and Notification Act, traveled in

interstate commerce and knowingly failed to register and update his

registration as required by the Sex Offender Registration and Notification

Act.

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 7 of 8

In violation of 18 U.S.C. § 2250(a).

(Doc. 16). In this case, the allegations in the Indictment are sufficient to establish that

Gibson violated SONRA.

3. Virtual Entrapment

Gibson's claim that he was virtually entrapped is also not appropriate for a motion

to dismiss. The concept of"virtual entrapment" finds its origins in United States v. Archer,

486 F.2d 670,682(2d Cir. 1973). In Archer, the Second Circuit reversed the defendants'

Travel Act convictions because the Government "manufactured" the jurisdictional

interstate element. Specifically, the Second Circuit found "the federal officers themselves

supplied the interstate element and acted to ensure that an interstate element would be

present." Id.

Gibson argues that he was virtually entrapped because the Government transported

him out of Wyoming, then paid for his bus ticket back to Wyoming after his release from

prison. Gibson claims that he never would have traveled to Illinois in the first place if it

was not for the Government's intervention in transporting him to Illinois to be incarcerated.

Entrapment is an affirmative defense. Mathews v. United States, 485 U.S. 58, 108

S.Ct. 883, 99 L.Ed.2d 54 (1988). Additionally, "entrapment is a relatively limited

defense." United States v. Russell, 411 U.S. 423, 435 (1973). "The defense has two

elements: first, government agents must have induced the defendant to commit the offense;

and second,the defendant must not have been otherwise predisposed to commit the offense,

given the opportunity." United States v. Fadel, 844 F.2d 1425, 1429 (10th Cir. 1988)

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Case 2:18-cr-00070-NDF Document 28 Filed 07/09/18 Page 8 of 8

(citations omitted). "The defendant's lack of such predisposition is the crux of the

entrapment defense." Id.(citations omitted).

The Court also finds this issue is not appropriate for consideration on the evidence.

There are no undisputed facts regarding Gibson's predisposition for interstate travel and

Gibson's facts were raised in his reply brief. In considering this argument based on the

allegations in the Indictment, there is nothing to suggest the Government provoked Gibson

or manufactured an interstate nexus by contriving the means for obtaining federal

jurisdiction. There is nothing in the Indictment supporting a finding that the Govermnent

manufactured federal jurisdiction. As a result, the Court finds that the Motion to Dismiss

is not appropriate at this time.

CONCLUSION

For all of the above stated reasons, the Court finds Gibson's Motion to Dismiss is

DENIED. Gibson is asking the Court to rule on the evidence in this case, but the Court

finds that such a ruling is premature at this stage. As a result, the Court will not consider

the evidence, but will only review the Motion to Dismiss based on the sufficiency of the

Indictment. The Indictment in this case is sufficient.

IT IS ORDERED that Defendant's Motion to Dismiss is DENIED.

Dated this 7

day of July, 2018.

NANCy» FREUDENTHAL

UNITED^TATES DISTRICT JUDGE

28a

Appellate Case: 19-1050

Document: 010110215764

Date Filed: 08/21/2019

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

August 21, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

ERIC RONALD BOLDUAN,

No. 19-1050

(D.C. No. 1:17-CR-00384-CMA-1)

(D. Colo.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT *

_________________________________

Before MATHESON, MCKAY, and BACHARACH, Circuit Judges.

_________________________________

Mr. Eric Bolduan appeals a supervised-release condition requiring

him to register as a sex offender. We affirm.

The registration requirement. The registration requirement stemmed

from Mr. Bolduan’s 1993 conviction on a Minnesota charge of seconddegree attempted sexual assault. At that time, federal law did not require

The parties do not request oral argument, and it would not materially

help us to decide this appeal. We have thus decided the appeal based on the

appellate briefs and the record on appeal. See Fed. R. App. P. 34(a)(2);

10th Cir. R. 34.1(G).

This order and judgment does not constitute binding precedent except

under the doctrines of law of the case, res judicata, and collateral estoppel.

But the order and judgment may be cited for its persuasive value if

otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).

Appendix I

29a

Appellate Case: 19-1050

Document: 010110215764

Date Filed: 08/21/2019

Page: 2

sex offenders to register. 1 Roughly thirteen years later, Congress enacted

the Sex Offender Registration and Notification Act, requiring registration

of sex offenders. Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, 120 Stat. 590 (2006); 34 U.S.C. §§ 20911(5),

20913(a). But the statute did not say whether the registration requirement

would apply to sex offenders, like Mr. Bolduan, who had already

completed their sentences. For these offenders, the statute authorized the

Attorney General to determine the applicability of the registration

requirement. 34 U.S.C. § 20913(d). The year after Congress enacted the

Sex Offender Registration and Notification Act, the Attorney General

exercised this authority and made the registration requirement applicable

to all sex offenders, including those convicted of a sex offense prior to

enactment of the Act. 28 C.F.R. § 72.3.

The imposition of a registration requirement for Mr. Bolduan. Earlier

this year, Mr. Bolduan was convicted on federal charges of making threats

by interstate communications and stalking through electronic means.

18 6U.S.C. §§ 875, 2261A(2)(B). At sentencing, the district court imposed

supervised-release conditions, including a requirement for Mr. Bolduan to

Minnesota law did require registration. Minn. Stat. Ann.

§ 243.166(6)(d)(1). But Minnesota’s registration requirement is not

involved in this appeal.

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Document: 010110215764

Date Filed: 08/21/2019

Page: 3

the condition was based on Congress’s unconstitutional delegation of

power to the Attorney General over the applicability of the registration

requirement.

The decision in Gundy. During the appellate briefing, the Supreme

Court decided Gundy v. United States, 139 S. Ct. 2116 (2019). In Gundy,

the Supreme Court held that Sex Offender Registration and Notification

Act’s delegation to the Attorney General was not an unconstitutional

delegation of Congress’s legislative power. 2 See 139 S. Ct. at 2121

(plurality op.); id. at 2131 (Alito, J., concurring in the judgment). Given

the Supreme Court’s recent decision in Gundy, we conclude that the

district court did not err in requiring Mr. Bolduan to register as a sex

offender.

Affirmed.

Entered for the Court

Robert E. Bacharach

Circuit Judge

We had likewise upheld the constitutionality of this delegation to

the Attorney General. United States v. Nichols, 775 F.3d 1225 (10th

Cir. 2014), reversed on other grounds, 136 S. Ct. 1113 (2016).

31a

Case 1:17-cr-00384-CMA Document 70 Filed 03/14/19 Page 1 of 57

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Criminal Action No. 17-cr-00384-CMA

UNITED STATES OF AMERICA,

Plaintiff,

ERIC RONALD BOLDUAN,

Defendant.

__________________________________________________________

REPORTER'S TRANSCRIPT

(Sentencing Hearing)

__________________________________________________________

Proceedings before the HONORABLE CHRISTINE M.

ARGUELLO, Judge, United States District Court, for the

District of Colorado, commencing at 11:04 a.m. on the 24th

day of January, 2019, Alfred A. Arraj United States

Courthouse, Denver, Colorado.

A P P E A R A N C E S

FOR THE PLAINTIFF:

VALERIA N. SPENCER, Assistant U.S. Attorney, 1801

California St., Suite 1600, Denver, CO 80202

FOR THE DEFENDANT:

MATTHEW C. GOLLA, Assistant Federal Public Defender, 633

17th St., Suite 1000, Denver, CO 80202

DARLENE M. MARTINEZ, RMR, CRR

United States District Court

For the District of Colorado

Appendix J

32a

Case 1:17-cr-00384-CMA Document 70 Filed 03/14/19 Page 12 of 57

THE DEFENDANT:

The information that was submitted

within the PSR report added up to that amount, so I just,

in fairness, I wanted that to be accurately reflected.

THE COURT:

All right.

I am not going to do

anything with that, I am going to award the 7,800.

is what I will award.

All right.

That

The defendant also objects to paragraph

98.

that he's also taking a medicine for high blood pressure.

That has been noted.

further with that.

He essentially just clarifies, not really objects,

So, I don't intend to do anything

Mr. Golla, do you need to make any statement with

respect to that?

MR. GOLLA:

No, Your Honor, thank you.

THE COURT:

The defendant also objects to mandatory

condition No. 6, which requires him to register as a sex

offender under the Sex Offender Registration and

Notification Act.

office that he is required to register as a sex offender

based on the 1993 conviction in Minnesota.

The Court agrees with the probation

Do you wish to make anything further with that?

MR. GOLLA:

No, Your Honor.

THE COURT:

All right.

regards the conditions --

MR. GOLLA:

17, or the next objection

Your Honor, I am sorry, I apologize.

DARLENE M. MARTINEZ, RMR, CRR

United States District Court

For the District of Colorado

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Case 1:17-cr-00384-CMA Document 70 Filed 03/14/19 Page 13 of 57

In that particular objection, Mr. Bolduan is indicating he

never registered as a sex offender in the State of

Minnesota.

THE COURT:

Well, it is indicated that he

registered as a sex offender as recently as January 19,

2017.

THE DEFENDANT:

any point in time to do so.

THE COURT:

I have never taken any action at

I do believe he is required to register

as a sex offender for those prior convictions.

going to order that in my ruling.

MR. GOLLA:

Very well.

So I am

I just wanted to make sure

he is not registered prior to this case as a sex offender

in the State of Minnesota.

Court was aware of that.

THE COURT:

He wanted me to make sure the

All right.

Regarding the conditions of

supervised release, the defendant objects to, I am not

sure, the conditions, because he doesn't know what will

happen if he is unable to pay.

but that is something that is to be worked out with the

probation officer.

arrangements.

The objection is noted,

And if he can't pay, they will make

With respect to the search condition, he indicates

that this condition would circumvent the Fourth Amendment

protections against warrantless searches.

DARLENE M. MARTINEZ, RMR, CRR

United States District Court

For the District of Colorado

34a

I have dealt

Case 1:17-cr-00384-CMA Document 70 Filed 03/14/19 Page 48 of 57

United States v. Fanfan, the United States Sentencing

Commission guidelines have become advisory to this Court.

Although this Court is not bound to apply those

guidelines, it has consulted them and taken them into

account, along with the sentencing factors set forth at 18

United States Code Section 3553(a).

The Court makes the following findings concerning

the objections to the presentence report:

The Court finds that the 2-level enhancement

pursuant to United States Sentencing Guideline Section

2A6.1(b)(2)(A) does apply under Count Group 4.

The Court finds that the defendant is required to

Registration and Notification Act.

all special conditions of supervised release noted in the

sentence recommendation, including the computer limitation

and the search condition, are appropriate in this case.

The Court finds that

The Court determines that no finding is necessary

concerning the remaining objections because those

controverted matters will not be taken into account in

calculating the sentence, nor will they affect the

sentence that this Court imposes.

Neither the Government nor the defendant has

challenged any other aspect of the presentence report,

therefore, the remaining factual statements and guideline

DARLENE M. MARTINEZ, RMR, CRR

United States District Court

For the District of Colorado

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Case 1:17-cr-00384-CMA Document 70 Filed 03/14/19 Page 57 of 57

If you are not able to afford an attorney for an

appeal, the Court will appoint one to represent you.

if you request, the Clerk of the Court must immediately

prepare and file a Notice of Appeal on your behalf.

And,

Is there any other business to be brought to my

attention?

MS. SPENCER:

Not on behalf of the United States.

Thank you, Your Honor.

MR. GOLLA:

No, Your Honor.

THE COURT:

Thank you to the Deputy United States

Marshals for your patience with us.

Mr. Bolduan, I hereby remand you to the custody of

the United States Marshal for the District of Colorado.

Court will be in recess.

(Proceedings conclude at 12:15 p.m.)

R E P O R T E R ' S

I, Darlene M. Martinez, Official Certified

Shorthand Reporter for the United States District Court,

District of Colorado, do hereby certify that the foregoing

is a true and accurate transcript of the proceedings had

as taken stenographically by me at the time and place

aforementioned.

C E R T I F I C A T E

Dated this 14th day of March, 2019.

_____________________________

s/Darlene M. Martinez, RMR, CRR

DARLENE M. MARTINEZ, RMR, CRR

United States District Court

For the District of Colorado

36a

Appellate Case: 19-8006

Document: 010110187337

Date Filed: 06/25/2019

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

June 25, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

MONTY ENGLEHART,

No. 19-8006

(D.C. No. 2:12-CR-00026-ABJ-1)

(D. Wyo.)

Defendant - Appellant.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.

_________________________________

Appellant Monty Englehart, a convicted sex offender, was charged with failing to

§ 20901 et seq. He moved to dismiss the indictment, arguing that SORNA violated the

constitutional nondelegation doctrine by improperly delegating legislative power to the

Attorney General. The district court denied the motion, and Mr. Englehart appealed.

This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and

Tenth Circuit Rule 32.1.

Appendix K

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Appellate Case: 19-8006

Document: 010110187337

Date Filed: 06/25/2019

Page: 2

We hold that Mr. Englehart’s nondelegation argument is foreclosed by Gundy v.

United States, No. 17-6086, 2019 WL 2527473, at *1 (U.S. June 20, 2019). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

In 1997, Mr. Englehart was convicted of aggravated criminal sexual abuse. Nine

years later, Congress enacted SORNA, which requires convicted sex offenders to register

in a national sex offender registry. See 34 U.S.C. § 20913(a). Title 18 U.S.C. § 2250(a)

makes it a felony for an individual “required to register under [SORNA]” to “travel[] in

interstate or foreign commerce” and “knowingly fail[] to register or update a registration

as required by [SORNA].”

SORNA gives the Attorney General “the authority to specify the applicability of

the [registration] requirements . . . to sex offenders convicted before [SORNA’s]

enactment . . . and to prescribe rules for the registration of any such sex offenders.”

34 U.S.C. § 20913(d). Exercising this authority, the Attorney General issued an interim

rule in 2007 applying SORNA’s registration requirements “to all sex offenders, including

sex offenders convicted of the offense . . . prior to the enactment of [SORNA].” 72 Fed.

Reg. 8894-01 (Feb. 28, 2007) (to be codified at 28 C.F.R. § 72.3). In 2010, it issued a

second regulation finalizing SORNA’s retroactive applicability. 28 C.F.R. § 72.3.

Mr. Englehart was charged under 18 U.S.C. § 2250(a) for failing to register as

required under SORNA and the regulation. He moved to dismiss the indictment, arguing

that SORNA’s grant of authority to the Attorney General to specify the extent of the

Act’s retroactive application violated the constitutional nondelegation doctrine. Mr.

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Document: 010110187337

Date Filed: 06/25/2019

Page: 3

Englehart acknowledged that his argument was “currently foreclosed,” ROA at 18, by

United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014), which held that SORNA does

not violate the nondelegation doctrine. Id. at 1231-32. But because Gundy—a case

addressing “this very issue”—was then pending before the United States Supreme Court,

he “raise[d] this argument to preserve it for further review.” ROA at 22.

The district court denied the motion to dismiss, and Mr. Englehart appealed,

urging the same arguments.

II. ANALYSIS

On June 20, 2019, the Supreme Court decided Gundy. The Court held that

Congress did not “make an impermissible delegation when it instructed the Attorney

General to apply SORNA’s registration requirements to pre-Act offenders,” Gundy, 2019

WL 2527473, at *8, and that the “delegation easily passes constitutional muster,” id. at

*2.

III. CONCLUSION

The Supreme Court’s holding in Gundy forecloses Mr. Englehart’s nondelegation

argument. Accordingly, we affirm.

Entered for the Court

Scott M. Matheson, Jr.

Circuit Judge

39a

Appellate Case: 19-8006

Document: 010110204194

Date Filed: 07/29/2019

UNITED STATES COURT OF APPEALS

Page: 1

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA,

July 29, 2019

Elisabeth A. Shumaker

Clerk of Court

Plaintiff - Appellee,

No. 19-8006

MONTY ENGLEHART,

Defendant - Appellant.

_________________________________

ORDER

_________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.

_________________________________

Appellant's petition for rehearing is denied.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

Appendix L

40a

Case 2:12-cr-00026-ABJ Document 126 Filed 10/16/18 Page 1 of 2

FILED

IN THE UNITED STATES DISTRICT COUI^g DISTRICT COURT

FORTHE DISTRICT OF WYOMING pisTRlCT OF Y/YOMING

?018 OGT 16 Pn 3 08

STEPHAN HARRIS. CLERK

UNITED STATES OF AMERICA,

CHEYENNE

Plaintiff,

Case No: 12-CR-26-ABJ

vs.

MONTY ENGLEHART,

Defendant.

ORDER DENYING MOTION TO DISMISS INDICTMENT

This matter comes before the Court on Defendant's Motion to Dismiss Indictment (ECF No.

51) ("Motion") and Plaintiffs Response to Motion to Dismiss Indictment (ECF No. 56)

("Response"). Having considered the written submissions, applicable law, and being otherwise

fully advised, the Court finds the Motion should be DENIED.

This motion seeks dismissal of the indictment on the grounds that the Sex Offender

Registration and Notification Act (SORNA) is based on Congress' improper delegation of

authority to the attorney general. Motion at 1. The Motion admits that this argument is precluded

by current Tenth Circuit case law United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014) but

states the issue is pending before the Supreme Court in Gundy v. United States, 138 S. Ct. 1260

(2018). Id. at 1, 5. Mr. Englehart believes that Gundy will abrogate Nichols and raises the

argument to preserve it for further review. Id. at 5. The Government notes that Mr. Englehart

acknowledges that Nichols is controlling and requests the motion be denied. Response at 3.

Because current case law resolves the issue, the Court finds the Motion should be DENIED.

Appendix M

41a

Case 2:12-cr-00026-ABJ Document 126 Filed 10/16/18 Page 2 of 2

The Court notes that this Motion is only relevant to Count One, Failure to Register as a Sex

Offender, in violation of 18 U.S.C. § 2250(a). Count Two is Possession of Child Pornography, in

violation of 18 U.S.C. § 2252(a)(5)(B) and (b)(2). Why this Motion is a Motion to Dismiss

Indictment instead of a Motion to Dismiss Count One is unclear.

It is hereby ORDERED that the Motion to Dismiss Indictment (ECF No. 51) is DENIED.

Dated this j^ ^ay ofOctober, 2018.

Alan

dan B. Johnson

United States District Judge

42a

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