633 F. App'x 501
10th Cir.2016Background
- Glen Earl Cotonuts was convicted under 18 U.S.C. § 2250 for failing to register as a sex offender after release from custody; he had prior convictions for abusive sexual contact (1989) and aggravated sexual abuse of a child (1993) and was classified Tier III under SORNA.
- The Attorney General issued regulations applying SORNA’s registration requirements to offenders convicted before SORNA’s enactment pursuant to 42 U.S.C. § 16913(d); Cotonuts moved to dismiss arguing that this delegation violated the nondelegation doctrine.
- At sentencing the PSR recommended sex-offender treatment that “may include” penile plethysmograph testing; the district court imposed a supervised-release condition requiring participation in treatment that may include plethysmograph testing, explaining the condition by reference to risk factors and Colorado SOMB standards.
- Cotonuts challenged both the constitutionality of the Attorney General’s retroactive application of SORNA (nondelegation) and the plethysmograph supervised-release condition (failure to make particularized findings).
- The Tenth Circuit (binding on this panel by United States v. Nichols) affirmed the SORNA conviction, holding the statute supplies an intelligible principle; the court dismissed as moot Cotonuts’s challenge to the plethysmograph condition because the original supervised-release order was revoked and replaced (and later vacated), so no live controversy remained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Congress unconstitutionally delegated legislative power by allowing the Attorney General to decide SORNA’s retroactive applicability | Cotonuts: The AG’s authority lacks an intelligible principle; delegation is impermissibly broad | Govt: SORNA’s text, purpose, and specific registration rules provide adequate guidance | Affirmed: SORNA supplies a constitutionally sufficient intelligible principle (court follows Nichols) |
| Whether the district court adequately made particularized findings before imposing penile plethysmograph testing as a supervised-release condition | Cotonuts: Court failed to make the required individualized findings; plethysmograph implicates fundamental liberty and is not shown necessary | Govt: Condition justified by risk factors, SOMB practices, and treatment necessity in Colorado | Dismissed as moot: Subsequent revocation and replacement (and later vacatur) of the supervised-release orders left no live controversy; appeal as to condition dismissed |
| Whether collateral consequences keep the sentencing issue live after revocation and replacement of supervised-release orders | Cotonuts: (implicitly) collateral consequences or interpretation of new order might preserve review | Govt: New orders omit the challenged condition; appeal as to original order has no effect | Court: No showing of continuing collateral consequences; mootness doctrine bars review |
| Whether this panel is bound by circuit precedent on nondelegation | Cotonuts: Challenges precedent’s reasoning | Govt: Nichols controls | Court: Bound by Nichols; concurrence notes personal disagreement but concurs under stare decisis |
Key Cases Cited
- United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014) (held SORNA’s delegation constitutionally adequate)
- Whitman v. American Trucking Associations, 531 U.S. 457 (2001) (nondelegation standard: intelligible principle)
- Mistretta v. United States, 488 U.S. 361 (1989) (discusses permissible delegation and practical necessity)
- Touby v. United States, 500 U.S. 160 (1991) (upheld AG authority under intelligible principle)
- Yakus v. United States, 321 U.S. 414 (1944) (standards for administrative guidance)
- A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (historical nondelegation invalidation)
- Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (historical nondelegation invalidation)
- Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998) (Article III limits and mootness/jurisdiction principles)