United States v. Anthony Kebodeaux

STEWART, Force, Before DENNIS and was convicted under Article 120 of HAYNES, Judges. Military Circuit of Uniform Code Justice (“UCMJ”), § of U.S.C. Carnal

PER CURIAM: Child, Knowledge With a and sentenced to banc, three months of petition rehearing en confinement and bad discharge. conduct The victim was a fif- petition panel rehearing, treated as teen-year-old with whom prior Kebodeaux had opin- GRANTED. We withdraw our Kebodeaux, ion, sexual relations to which the victim assent- United States ed in fact Cir.2011), though she the legal and substitute the fol- lacked ability to lowing. consent. Kebodeaux served his discharged sentence and was from the mil- Defendant, Kebodeaux, Anthony a fed- itary. supervised No term of release was offender, erally-adjudged convict- imposed. knowingly ed of failing update to his sex 8, 2007, August On regis- Kebodeaux registration offender after his intrastate Paso, (from Texas, tered a sex offender El of change residence El Paso to San Antonio, Texas) reported his residence at a street ad- required the Sex dress in that city, compliance with SOR- Registration Offender and Notification Act NA. (“SORNA”), 2250(a)(2)(A) See On January U.S.C. 16913. 18 U.S.C. El police Paso were unable to U.S.C. He was sentenced to locate Kebodeaux that address. On day imprison- twelve months and one of 12, 2008, March Kebodeaux was appeal, ment. On found and argues he Antonio, arrested San Constitution Texas. Kebo- grant Congress does not deaux update admits that he did 2250(a)(2)(A), his enact read registration or otherwise together §with inform authori- that provi- because ties of his relocation from El Paso regulates purely activities, sion to San intrastate as required by Antonio any aspect rather than SORNA.1 On Congress’s of 2, 2008, April grand jury proper domain of indicted interstate commerce— Kebodeaux on count no one of violation other Article I of source of au- SORNA, 2250(a). U.S.C. thority permits Congress impose SOR- registration NA’s and notification obli- 2250(a) Section punish- makes a crime gations on him. We conclude that by up able years to ten imprisonment if a is constitutional. person who: required register under [SOR-

BACKGROUND NA]; 1999, Kebodeaux, (A) a twenty-one-year- is a sex offender as defined for old member of the United purposes States Air reason [SORNA] 16913(a) provides: name, residence, 1. 42 U.S.C. "A change sex of- after each em- register, shall keep fender status, ployment, appear person or student current, jurisdiction in each where offend- jurisdiction pursuant in at least involved resides, er employee, where the offender is an (a) subsection section this and inform that and where the offender is a student. For jurisdiction changes of all in the information only, purposes initial a sex of- required for that offender in the sex offender register fender shall jurisdiction also in the registry. jurisdiction That immediately shall jurisdiction which if convicted such is differ- provide jurisdic- that information to all other jurisdiction ent from the residence.” required tions in which the offender is 16913(c) provides, also "A sex of- register.” shall, days fender not later than 3 business (in- recommendation to Sentencing law Guidelines under Federal a conviction [UCMJ]), day imprison- law of the and one twelve months cluding the ment, Columbia, five-year tribal term of supervised Indian with a District of territory law, any timely appeals of or the law release. Kebodeaux or States; or constitutionality of the United of conviction and sen- possession his (B) foreign or in interstate travels tence. leaves, or re-

commerce, enters or or in, country; and sides Indian DISCUSSION (3) update or register fails to knowingly to consti challenges review We by [SOR- required a a novo. tutionality of conviction de United NA], (5th 256 Thus, imposes criminal lia- 2250 “Section Cir.2009). who fail categories persons of bility on two chal- narrowly Kebodeaux focuses his registration [and to adhere to SORNA’s 2250(a)(2)(A)’s exclusively lenge pun- on any person who requirements: updating] ishment of a federal sex offender—who a conviction ‘by reason of a sex offender previously registered has under SORNA— law, the law of District under Federal knowingly failing update regis- to his law, or the law Columbia, tribal Indian of tration after an intrastate relocation territory possession or Unit- any registration requirement violation of States’, 2250(a)(2)(A), any other ed imposed by 16913. He concedes register under SORNA required to person validity constitutional balance of foreign or com- ‘travels in interstate who provisions. in, leaves, merce, or resides or or enters 2250(a)(2)(B).” Carr v. country,’ Indian begin any must assessment We — States, 130 U.S. S.Ct. duly-enacted a constitutionality of the (alter- 2229, 2238, L.Ed.2d 1152 “presumption with a of con statute removed). Accordingly, per- “[f]or ation Morrison, v. stitutionality.” United States under feder- convicted of sex offenses sons 598, 607, 529 U.S. law, Indian tribal interstate travel al or (2000). it presumption L.Ed.2d 658 This liability.” a Id. prerequisite not “Due grounded self is the Constitution: 2250(a)(2)(A)). 2235 n. 3 a respect for the decisions of coordinate that we fil- branch of Government demands response pre-trial to Kebodeaux’s congressional it a enactment invalidate ings, the Government stated Congress has upon plain showing solely because he fell charging Kebodeaux 2250(a)(2)(A), exceeded its constitutional bounds.” as he under remain, course, mindful that in some purpose “for the We as a sex offender qualified party making cases a will succeed this “by reason of a conviction of’ SORNA it “plain showing,” that in those cases knowingly ... [UCMJ]” is our the law uncon obligation his when he declare update failed Morrison, intra-state, After a stitutional. moved within Texas.2 Cf. (holding part facts stipulated trial on the de-

bench above, Against Women Act outside Con Kebodeaux was convicted Violence scribed enact); authority to gress’s below the United States subsequently sentenced having an Indian reser- also that it was not commerce entered 2. The Government stated 2250(a)(2)(B), update knowingly having failed vation and charging Kebodeaux under registration. foreign his having in interstate or traveled 549, 567-68, Lopez, regulatory the law was “a scheme (holding nonpunitive” 131 L.Ed.2d 626 civil and in intention and in fact). Act rejected Gun-Free School Zones unconstitu- challenges We have to the tional). application of SORNA Due under the Pro cess Clause where the involved states lines, Along these we note that we do registries maintained but sex offender had SORNA, not write on blank slate as formally implemented SORNA. Unit scrutiny constitutional has withstood Heth, ed States v. years number fronts since its Cir.2010). alsoWe have held that SORNA enactment. court previously Our has held “compel not does the States to enact or that, as applied sex offenders who trav regulatory program” enforce lines, 16913, eled across state to taken violation of the Tenth Amendment. Unit 2250(a)(2)(B), §with gether does not run Johnson, 912, States v. 632 ed F.3d 920 Clause, of afoul the Commerce United (5th Cir.2011) Printz v. United (5th 254, v. 577 States F.3d 258 States, 898, 935, 2365, 521 117 U.S. S.Ct. Cir.2009), Clause, the Due Process id. at (1997)), 914 petition 138 L.Ed.2d cert. 262, doctrine, non-delegation or the id. at (U.S. filed, May 3, No. 10-10330 filed 264. We have also held com that SORNA 2011).3 Furthermore, no other circuit has ports requirements with the of the Ex Post any portion held of unconstitut SORNA Facto Clause because “the act forbidden ional,4 [viz., few district courts that register] failure to not one which rejected legal any part of appellant] at SORNA as un [the the time com it.” mitted v. constitutional have all been Young, United States 585 reversed (5th 199, Cir.2009); See, F.3d overruled on the e.g., 203-04 see also merits. United Doe, 84, 92, v. Waybright, 1154, Smith 538 States v. F.Supp.2d U.S. 123 S.Ct. 561 1140, 155 (D.Mont.2008), L.Ed.2d 164 (holding Alas 1168 by overruled United 1124, ka’s state sex offender run George, statute did not States v. 1129 n. 2 (9th of Cir.2010); afoul the Ex Post Powers, Facto Clause because United States v. 09-50438, 1655321, *1, haveWe moreover reiterated and reaffirm 2010 WL at 2010 8585, holdings range unpub (5th U.S.App. ed each these in a Apr. LEXIS at *2-3 Cir. 26, 2010) Byrd, lished cases. (following Whaley); See United States v. No. Heth Unit 09-51108, 990304, *4-5, Letourneau, 24, 2011 WL 2011 ed States Fed.Appx. v. 342 26- 5962, (5th (5th U.S.App. Cir.2009) (following LEXIS at *10-12 Cir. 27 Whaley), cert. de - 22, nied, 2011) -, 1736, (following Whaley); Mar. Heth and U.S. S.Ct. 130 176 Koch, 917, (2010); Puente, Fed.Appx. United States v. L.Ed.2d 403 917 214 United States v. (5th Cir.2010) 76, (5th (follow Cir.2009) (following Whaley); Fed.Appx. 348 77 United Ross, 364, (5th denied, -, Whaley), States v. cert. Fed.Appx. 385 - U.S. 365 130 1747, Cir.2010) (2010). (following Whaley), 176 L.Ed.2d 219 Heth and cert. - denied, -, 583, 131 S.Ct. 178 (2010); Marrufo, L.Ed.2d 425 United States v. 4. The portion Ninth Circuit had held that one 403, (5th Cir.2010) Fed.Appx. 381 regulations 404-05 Attorney issued Gen- (following Whaley); Heth and United posed States v. eral under SORNA an Ex Post Facto Contreras, 434, (5th Fed.Appx. problem 380 435-36 category as to the narrow Cir.2010) (following Whaley); Heth federally-adjudicated juvenile Unit delinquents. McBroom, 09-50443, Male, ed States v. No. 2010 See United v. States Juvenile F.3d 590 11113, U.S.App. (9th Cir.2010). Court, LEXIS June *3-4 Cir. 924 The 1, 2010) however, (following Whaley), recently Heth and cert. vacated that decision on - denied, 484, grounds 178 reaching mootness without the mer- (2010); Slater, L.Ed.2d 306 ruling. United States v. its Ninth Circuit's United States 526, (fol (5th Cir.2010) Male, 09-940, Fed.Appx. 373 527 Juvenile v. No. WL 2011 Knezek, 2518925, lowing (U.S. Young)-, 2011). United States v. No. at *3 June

141 so, (M.D.Fla.2008), doing v. reason” for United States sive 1336 F.Supp.2d (5th Cir.2002). (11th Cir.2009) Adam, rev’d, F.3d Guzman, v. curiam); United States (per high, though faces a Kebodeaux thus (N.D.N.Y.2008), 305, 315 F.Supp.2d insurmountable, hurdle to reversal: he (2d Cir.2010), rev’d, 83, 89-91 F.3d presumption consti- must overcome — U.S. -, denied, cert. tutionality statute and we accord federal (2010); 177 L.Ed.2d split. us create a circuit convince Hall, F.Supp.2d States assessment, has not Kebodeaux our (N.D.N.Y.2008), nom. United rev’d sub this cleared bar. Guzman, F.3d 89-91. arguments The Kebodeaux made upholding cases position these various the district court support Of his SORNA, briefing Ninth decision in his initial to our court Circuit’s directly addressed As dis- the one that focused the Commerce Clause. George is above, it a appeal. this SORNA makes presented cussed the issue 2250(a)(2)(B), offense, through acted a sex held that Ninth Circuit convicted under state or federal that “SOR- offender explaining powers, within its fail to his SORNA knowingly update in law to requirements NA’s in traveling after interstate 2250(a)(2)(A) valid based on ] are [§ others This court and commerce. supervisory ‘direct government’s 2250(a)(2)(B) § consistently held that is 625 federal sex offenders.” interest’ over Carr, Congress’s pow- at constitutional execution of 1130 F.3d at of, 2239).5 persons course, regulate not er to the channels does George, of While in, Kebodeaux does chary interstate commerce.6 us, always are to create “[w]e bind Comm’r, question holdings those or the consti- F.3d v. 349 split,” circuit Alfaro 2250(a)(2)(B). § He (5th Cir.2003), tutionality argues 225, “persua- absent a 229 16, 2009); (5th filed Mar. United 50204 Cir. that have considered 5. The district courts 1134, Senogles, F.Supp.2d 570 1147 consistently question held have likewise (D.Minn.2008); v. see also United States 2250(a)(2)(A) § See United is constitutional. David, 1:08-cr-11, 2045830, Morales, 401, WL No. 2008 406 F.R.D. v. 258 States 38613, *8-9, docketed, at *26 n. 2008 U.S. Dist. LEXIS (E.D.Wash.2009), No. 09- appeal 12, (W.D.N.C. 2008) May (suggesting 23, 2009); 11 (9th Sept. United Cir. filed 30344 dicta), 2250(a)(2)(A) 143, constitutional Thompson, F.Supp.2d 145— v. 595 States Cir.2009) (un (4th aff'd, Fed.Appx. 726 333 (D.Me.2009), grounds, No. on other 46 aff'd Voice, published); United States v. 621 2163601, 09-1946, U.S.App. WL 2011 2011 741, (D.S.D.2009) F.Supp.2d (holding 3, 760 (1st 2011) (unpub June LEXIS 11408 Cir. under federal that a sex offender convicted lished); Yelloweagle, 08- v. No. United States country residing then 5378132, *1-2, law in Indian cr-364, 2008 U.S. 2008 WL constitutionally 23, country could be con (D.Colo. Indian 105479, Dec. at *3-5 Dist. LEXIS 'd, 2250(a)(2)(A)), 09-1247, victed 2008), grounds, on other No. aff aff'd denied,- U.S. -, (8th Cir.2010), cert 1632095, 870 U.S.App. LEXIS 2011 2011 WL (2011). 1058, S.Ct. 178 L.Ed.2d 875 2, 2011); 131 (10th May v. United States 8934 Cir. 941, Santana, F.Supp.2d 946-47 584 258; docketed, (W.D.Tex.2008), George, 08- F.3d at accord appeal No. 6. 1129-30; Guzman, 5, 2008); (5th 591 F.3d at United 625 F.3d at Cir. filed Dec. Gould, 459, Reeder, EP-08-CR-977, 90; v. F.3d WL States v. No. States - denied, Cir.2009), (4th 4790114, cert. Dist. LEXIS 105968 470-72 2008 U.S. 1686, (2010); docketed, (W.D.Tex. 2008), appeal No. 176 L.Ed.2d S.Ct. Oct. Ambert, 26, 2008); (5th Unit v. 1210— Cir. filed Nov. United States 08-51212 Cir.2009); Torres, May, F.Supp.2d United States v. 935-36 ed States (8th Cir.2008). docketed, (W.D.Tex.2008), 921-22 appeal No. 09- F.3d 2250(a)(2)(A) into carrying unconstitution- Execution” the enumerated an attempt I, al because it is invalid Con- powers. art. cl. 18. Const., activities, gress to intrastate rath- regulate analysis governed by Our of this issue is — than commerce. er interstate Comstock, U.S. -, United States v. (2010). 176 L.Ed.2d 878 argument ignores the Kebodeaux’s depend does not fact the Court held constitu- jurisdictional commerce” “interstate civil tional a commitment statute for sexu- expressly subsection hook. That deals ally-dangerous prisoners, 18 U.S.C. persons with convicted under federal sex Necessary Proper under the conspicuously offender statutes and is Id. at pointed Clause. 1954. The Court lacking the interstate travel element of supported “five considerations” that 2250(a)(2)(B); plainly this distinction conclusion that statute constitu- intentional, Carr, 130 see tional: Federal sex offender statutes themselves are promulgated provisions under various (1) the breadth of the See, 2243(a) e.g., of Article I. 18 U.S.C. Clause, history long (criminalizing “sexual abuse of minor arena, federal involvement this “special ward” United States maritime sound reasons the statute’s enact- jurisdiction”, and territorial pursuant in light ment of the Government’s custo- Congress’s Article I define and “[t]o safeguarding dial interest public punish ... felonies the high committed on dangers from posed by those in federal seas”). case, present Congress In the had (4) custody, the statute’s accommodation authority the to enact Article 120 of the interests, of state and the statute’s UCMJ, criminalizing sexual of a mi abuse scope. narrow nor a of military, pursuant member the Id. at 1965. These five considerations power its to regulate military to the under part here, must I, be of our assessment but 8, Article Section 14 the Unit we note the outset that these ed States “consider- Constitution.7 Kebodeaux does suggest not ations” are not factors Congress lacked the au to be balanced or thority to may criminalize the of which that against conduct cut for or the constitu- he was convicted that the statute under of a tionality statute but rather an articula- which he was convicted was unconstitution every tion of supporting reason the Court’s al. conclusion the civil commitment issue in Comstock was constitutional. question

The then becomes whether require Comstock does that every one Congress’s power over federal sex offenses present every these considerations be enough stretches far encompass regis- case, any respect nor does Comstock in requirement. Necessary tration and purport to Proper prior overrule the Court’s deci- gives Clause of the Constitution Rather, Congress power sional the all law. “[t]o make laws Comstock demon- necessary shall which be and proper application strates the distillation and applies To the extent that the erning may employed UCMJ such them Part of be members of the when National Guard en- any in the Service of the United States.” In service, gaged in certain functions event, Kebodeaux, applied at the time 802(a)(3), likely 10 see Article 120 regular his conviction a member of the armed I, 16, also derives from Article clause States, forces the United the relevant organizing, which "for authorizes laws arm- source is clause 14. Militia, ing, disciplining, gov- and the and for Necessary inqui- the fundamental and We thus address law existing under Necessary ry Proper under to a statute. particular Proper Clause Clause, is, the first and third Com- it cases on which and the As Comstock challenged stock factors: is the statute clear, two of consider- make relies rationally an related to enumerated have first third —are and ations —the reasonably adapted to that end? serve every case decided required long been questions, these Court’s On Clause: offers, as the Ninth Cir- decision Carr first, statute must challenged George, guidance. useful cuit noted in a means that “constitute[ ] 2250(a)(2)(B) §why should be explaining of a implementation 2250(a)(2)(A), consti- differently related read from power,” id. at 1956 tutionally enumerated Court held (4 Maryland, v. Congress M’Culloch ... chose handle federal

Wheat.) (1819), differently. and state sex offenders 4 L.Ed. 579 nothing There is about “anomalous]” States, 541 U.S. v. Sabri United contrary, such choice. To (2004)); L.Ed.2d 891 S.Ct. entirely Congress to have reasonable second, must similar- and, that the statute “ assigned spe- Federal Government a “reasonably ... ‘means ly reflect ensuring with compliance cial role in legitimate of a to the attainment adapted” registration requirements power, an enumerated id. end under’ persons typi- who federal sex offenders — Raich, 545 U.S. (quoting Gonzales cally spent have time under feder- would 1, 37, 162 L.Ed.2d similarly supervision. al criminal It is J., (Scalia, concurring) given reasonable for to have 100, 121, Darby, responsibility for su- primary the States (1941))); 451, 85 see also L.Ed. ensuring compliance pervising (“Moreover, § ‘reason- at 1961 id. among sex offenders and to state to Congress’ power to act as ably adapted’ subjected offenders federal crim- such to (a power custodian responsible federal when, liability only inal after SORNA’s rests, turn, in federal criminal that on in- enactment, they use the channels of legitimately seek to imple- that statutes evading in a State’s terstate commerce authori- constitutionally ment enumerated reach. 121,

ty.” (quoting Darby, 312 U.S. 451))). remaining three consid- S.Ct. to exposed ... in further in- addressed Comstock erations liability, penalties federal criminal with See, inquiry. rather than form define up years’ imprisonment, persons to 10 (‘We recognize at 1959 even a e.g., id. under over required register to SORNA related federal ac- longstanding history of has a whom the Federal Government not a statute’s con- or who supervisory tion does demonstrate direct interest efficacy involvement, statutory of the stitutionality. history A threaten the com- by traveling scheme interstate however, ‘helpful in re- can nonetheless be merce. congressional viewing the substance of ” (internal statutory 2238-39; citations George, scheme.’ see also 130 S.Ct. at omitted) Raich, 21, Carr, (quoting 545 U.S. at F.3d S.Ct. 2239). 2195)). quotation from Carr8 This above, prisoners typ- "who prior paragraph sentence refers to quoted to this 8. As 2250(a) suggests argues thus makes SOR- Kebodeaux en- Comstock’s categories sex of- NA two applicable Congress’s “power regu- dorsement of to for two distinct reasons: state fenders prisoners’ late behavior even after their who offenders move across state lines release,” id., power refers to the to offend- thus threaten undermine the sex probation supervised authorize release every er has laws state sentence; of a criminal part he then enacted, and federal offenders —not be- powers contends these are different any cause of federal concern about their obligations from imposed kind impact relationship or to the nationwide they imposed SORNA because are at the scheme, rather but because judgment. of the criminal pur- time This consideration of Federal distinct “the ported question distinction conflates the supervisory direct inter- Government's] Article I power impose obligation an former prisoners. est” over Id. at with that of the limitations that the Ex This logic 2239.9 traces the Clause, I, case, Facto art. through Kebodeaux’s the Post Const., Necessary and ulti- Proper 3,10 Clause back cl. interposes. permissible To be a mately to power “make Rules for of Congress’s powers, exercise a law must Regulation Government and of course both be authorized under Article land and naval Forces.” U.S. art. Const., I, prohibited and not be under Article I, is, cl. 14. That inasmuch as Con- I, 9,§ provisions the various other gress power had to enact 120 of Article to the amendments Constitution that UCMJ, Congress also has pose limits on Congress’s pow- substantive power people the additional to imprison (“The See er. 130 S.Ct. at 1956 ], ... who violate th[at] law[ question presented is whether the Neces- power provide additional for the safe Clause, sary I, Art. cl. management and reasonable of those grants Congress authority sufficient to en- prisons, and the reg- additional act the resolving statute before us. prisoners’ ulate the behavior even after question, assume, we we but do not course, their release. Of each of those decide, that provisions other of the Consti- powers, powers like the addressed

Sabñ, Hall, McCulloch, tution —such as the Due Process Clause— ultimate- ly issue].”). power. prohibit “derived from” an enumerated do law at [the Su- pervised release must be imposed part Comstock, 130 at 1964 (quoting Unit- Otto) Hall, (8 of criminal judgment punitive, v. because it is ed States 98 U.S. 345 (1879)). precedent but our followingthe Su- holds^— ically spent would have portion Supreme time federal under of a recent Court decision supervision.” (emphasis criminal Id. at discussing very this statute. added). distinguish Carr therefore does not government's between the Young, federal interest in 10. As we noted in there in fact are two prisoners; and current former con- barring government to the clauses the federal as trary, language suggests past this enacting that federal any well the "from states law supervision punishment criminal can still be a a imposes basis for ‘which a for an act present permit regis- sufficient interest to punishable the which was not at the time it was committed; requirement imposes tration at issue punish- here. additional prescribed ment that then ....'” language Missouri, concerning The in Can- at 202 Cummings F.3d (4 325-26, strictly part Wall.) is not of the bind- L.Ed. holding (1867)). I, opinion, of the Court's we are but Article the clause clause any nevertheless hesitant to discard government’s power. wholesale restricts that the federal may question Congress minimal whether reporting the Court—that preme non-punitive establish collater- puni- permissibly not are SORNA requirements for all crimes— consequences al federal the Ex Post meaning within tive offenses; may rely on the only sex we 202-06 Young, F.3d at Clause. Facto provide sepa- Ex Post Facto Clause to Smith, 538 U.S. at boundary on kinds of obli- rate outer 1140). however, Both, post-release are Congress may require. that gations fed- of former behavior regulations short, limited au- this extension of federal the same from derive prisoners eral thority unlikely gen- to devolve into the I, § Article authority an source that Court police eral is, no that Con- That one contests matter. not rest repeatedly has cautioned does obli- may impose post-release some gress government. with the federal case this prisoner; on a federal gations of whether question simply presents Turning to the second consid- Comstock are, as those regulations fact that history of action in eration —the federal are, non-punitive, civil collateral arena, agree we sex of- federal Ex subject to thus not consequences relatively registration fender laws are of —and limitations —weakens Facto Clause Post Carr, vintage. See recent authority to the of unconstitu- point reg- (noting sex offender no tionality. Kebodeaux offers 1994). However, laws date to we istration does, it not. and we hold that does “relatively consider that recent vin- do not tage” dispositive, to be and the Court fifth analysis converges with the This not make it Comstock did so. consideration, scope narrow Comstock is, That we challenged statute. consideration, The fourth the extent of today con- holding “fear that our need not inter- the statute’s accommodation of state general ‘police power, Congress ests, fers degree addressed to some our the National the Founders denied which in Johnson. We held there opinion reposed in the States.’” Government a whole no Tenth poses SORNA as (quoting Mor- 130 S.Ct. at 1964 im- problem because the law Amendment 1740). rison, 529 U.S. the states: poses no actual mandate on narrow, specific applies SORNA trav- orders sex offenders “While SORNA who class of federal offenders register keep their eling interstate to the present high current, risk has concluded not re- SORNA does the non- imposes only them public comply the States to with its di- quire —and Instead, basic obligation they provide juris- punitive the statute allows rectives. local its implement information to state to decide dictions whether draw percent does not ten their fed- governments.11 law or lose provisions sweep all convicted of for crimi- persons funding its eral otherwise allocated within crimes, at 920 impose justice nal assistance.” 632 F.3d it does 16925(a)). § By afford- burdens on those to whom U.S.C. significant is, option comply to to not, decide states the decline need that even applies. We obligations dy), recognize as nar- but the limited nature of the We that SORNA is not 11. registra- imposes scope as is and application SORNA row in of its —notification sharply civ- with the indefinite § at 1964-65 tion—contrasts see ap- in a Bureau Prisons mental been il commitment (explaining that the law had § facility so as to civilly sexually-danger- health 4248 authorizes plied to commit expansive extend SORNA’s more persons, and that law did not counterbalance ous wholly persons federal custo- reach. to released from specific requirements, day with the SOR- months and of imprison- law’s twelve one provides NA of state appeal, argues some accommodation ment. On he that the Con- Further, ques- grant Congress interests. subsection stitution does not the au- 2250(a)(2)(A) thority § tion the federal to enact addresses interest because George, See F.3d at provision regulates purely convict. intra-state activities, any aspect rather than of Con- gress’s proper domain of interstate com- We therefore read Comstock and Carr conclude, however, I merce. holding Congress our supporting 2250(a)(2)(A) § is constitutional because it I had the of the Article statute, part is not stand-alone but is narrow, non-puni- devise a Constitution to SORNA and necessary make SORNA regulatory consequence tive collateral of, effective regulating the channels and particular high-risk this category feder- in, persons interstate commerce. al criminal convictions. Kebodeaux has Morrison, “plain,” 2250(a)(2)(B), § failed to make Under SORNA makes it “persua- U.S. at sex federal offense for a offender con- sive,” Adam, 332, showing 296 F.3d at we victed under state or federal law to know- demand overturning ingly update before the considered fail to registra- his SORNA judgment legislative of the executive traveling tion after in interstate commerce. government branches of the federal court This and others have consistently 2250(a)(2)(B) departing from remainder held that is a constitutional judicial branch. Congress’s power execution of to regulate of, in, the channels persons interstate CONCLUSION commerce.1 question Kebodeaux does not holdings those constitutionality Accordingly, we conclude 2250(a)(2)(B). 2250(a)(2)(A)’s argues He only that application to intra-state 2250(a)(2)(A), isolation, is unconstitu- violations of SORNA offenders con- tional because it is an invalid attempt by victed under federal law is constitutional. regulate activities, intra-state judgment of the district court is AF- than rather interstate commerce. FIRMED. challenge Kebodeaux’s is without merit DENNIS, Judge, concurring Circuit 2250(a)(2)(A) because is an integral part judgment assigning reasons: SORNA, rather than a stand-alone pro- Kebodeaux, Anthony Defendant a feder- vision, and, such, it is a constitutional offender, ally-adjudged sex convicted regulation of intra-state activities that is of knowingly failing update his sex of- necessary proper SORNA, to make fender registration after his intra-state 2250(a)(2)(B), particularly effective as a (from change of residence El to San Paso regulation of interstate commerce. As Texas) Antonio, as required by structured, the Sex designed SORNA is to “ad- Registration Offender and Notification Act dress the prior deficiencies in law that (“SORNA”), 18 U.S.C. and had slip enabled sex offenders to through 16913. He was sentenced the cracks” moving interstate.2 It rec- (11th Cir.2009); 1. United v. States 577 F.3d 1210-11 United States (5th Cir.2009): May, Cir.2008). accord United v. 921-22 States Guz- man, (2d Cir.2010); Gould, - States, 470-72 2. Carr Cir.2009); Ambert, 2229, 2240, United States v. 176 L.Ed.2d 1152 disruption of or of “‘every enacted sources interference ha[s] state ognizes registration For had objective. example, offender] Con- type [sex some’ ... condi- “Congress system”3 and that sex offend- gress not criminalized federal funds on States’ undocumented, federal tioned certain intra-state residence ers’ any on penalties’ of ‘criminal adoption would no deterrence to changes, there be register to under a State ‘required person re-regis- moving their intra-state without fails to so knowingly ... who program disparate would tering. This have caused cur- keep such register delayed of SORNA enforcement manner, gave In this SORNA rent.’”4 offenders, allowing sex against federal for su- primary responsibility “the States in some them to establish residences ensuring among compliance pervising and abiders, apparent which states as law Through sex offenders.”5 state to moni- have made them difficult would 2250(a)(2)(B), however, “exposed com- either in-state in interstate tor persons ... re- liability criminal federal merce. ... who under quired register SORNA statutory efficacy threaten I. com- traveling in interstate scheme 2, 2008, April grand jury On federal Moreover, did not

merce.”6 count of violat- indicted Kebodeaux one re- the states the additional delegate to 2250(a).7 SORNA, 18 U.S.C. Section offenders prosecuting sex sponsibility 2250(a) im- provides years’ for to ten up fail to law who convicted for: prisonment in-state registrations after their update Whoever— Rather, changes. SORNA residence required register under the re-registration such an intra-state makes Offender and Notifi- Registration Sex pros- a federal offense amenable failure Act; cation Ac- government. ecution (2)(A) sex offender as defined to make helps cordingly, purposes Reg- com- the Sex Offender regulation of interstate byAct rea- by obviating potential istration and Notification merce effective current, (also stating, jurisdiction each the offend- quoting 42 U.S.C. 16901 as where " resides, chapter 'Congress in this establishes a com- employee, er where offender is an system registra- prehensive national where the offender is a student. For ” (alteration origi- offenders' [sex] tion registration purposes only, a sex of- initial nal)). register jurisdiction in shall also fender jurisdiction if is differ- which convicted such (alteration omitted) (quoting at 2239 n. 7 3. jurisdiction ent of residence.” from Doe, 84, 90, Smith v. 16913(c) provides, "A sex of- also (2003)). L.Ed.2d 164 shall, days fender not later than 3 business residence, (second name, origi- change 2238-39 alteration in em- 4. Id. at after each nal) Against status, Wetterling Crimes appear person Jacob ployment, or student Regis- Sexually Violent Offender Children jurisdiction pursuant least 1 in at involved XVII, Act, 103-322, tit. Pub.L. tration (a) of this and inform subsection section (1994) (codified 170101(c), 108 Stat. 2041 jurisdiction changes of all in the information 14071(d))). at 42 U.S.C. required offender for that offender in the sex jurisdiction immediately registry. That shall 5. Id. at 2238. jurisdic- provide all other that information to required to which the tions in offender Id. at 2239. register.” 16913(a) requires, “A of- 7. 42 U.S.C. register, keep shall fender el,” son of a conviction under Federal law 130 S.Ct. at 2233—“Section 2250 is not of Mili- (including response problem Uniform Code a stand-alone to the of Justice), tary missing offenders; law of the District sex it is embedded in Columbia, law, statutory Indian the law broader tribal or scheme” [the] any territory possession or Safety the Adam Walsh Child Protection and States; 109-248, or United Act of Pub.L. No. 120 Stat. 587, which was “enacted to (B) address the foreign travels interstate or prior deficiencies in law had enabled commerce, leaves, or or enters or re- slip through sex offenders to the cracks” of in, country; sides Indian registration sex sys- state-based offender or knowingly register up- fails to Carr, (also tems. quot- registration required by date a 16901 for the proposition Registration Sex Notifi- Offender “ ‘Congress chapter in this establishes cation Act. comprehensive system national for the Thus, imposes “Section criminal lia- ” (alteration registration of [sex] offenders’ bility categories on of persons two who fail also, e.g., in original)); see United States v. registration adhere to SORNA’s [and (5th Cir.2009) updating] requirements: any person who (“SORNA[] problem on the focus[es] ‘by is a sex offender reason of a conviction sex offenders their escaping registration law, under Federal the law of the District requirements through interstate travel Columbia, law, Indian tribal the law or ----”); Ambert, United States v. of any territory possession or of the Unit- (11th Cir.2009) 1202, 1212 (Congress enact- States,’ 2250(a)(2)(A), any ed other ed “to system SORNA create an interstate person required register SORNA to counteract danger posed by sex who foreign ‘travels interstate or com- slip through offenders who the cracks or merce, leaves, in, or enters or resides exploit weak registration system by state 2250(a)(2)(B).” Indian country,’ Carr v. traveling or moving to another state with- — States, registering out therein.’ 42 U.S.C. (2010) (alter- 2238, 176 L.Ed.2d 1152 16901)). omitted). ation Accordingly, per- “[f]or sons convicted of sex offenses under feder- Carr, Accordingly, the Supreme law, al or Indian tribal travel interstate is Court described how SORNA’s various not a prerequisite liability.” work together sections to further joint 2250(a)(2)(A)). (citing § 2235 n. 3 goals comprehensive state-federal iden- tification and of all state and Kebodeaux narrowly his chal- focuses offenders and punishing those lenge 2250(a)(2)(A)’s exclusively §on pun- knowingly who avoid updating regis- their ishment of a federal sex offender trations: knowingly failing update his

after an intra-state relocation. He con- Among many its provisions, SORNA in- cedes the constitutional validity of the bal- structs States to maintain sex-offender provisions. ance of SORNA’s registries compile array an of infor- offenders, mation about sex [42 U.S.C.]

II. 16914; to make this information pub- Yet, recently as the online, 16918; Court ex- licly available to share plained in holding Carr United jurisdictions the information with other States — 2250[(a)(2)(B) that “[l]iability under ... ] with the Attorney General for inclu- cannot be predicated pre-SORNA trav- sion a comprehensive national sex-

149 16919-16921; purely activity.” §§ and ensnares some intrastate registry, offender Raich, 1, 22, 125 in- penalty a criminal that Gonzales v. 545 U.S. S.Ct. “provide to (2005). 2195, Raich, imprison- a maximum term of 1 162 L.Ed.2d In the cludes year 1 than for the greater the ment Court held that under Controlled Sub comply a to with (“CSA”), failure of sex offender 21 stances Act et U.S.C. 801 subchapter,” of this requirements the Necessary seq., through Proper the and 16913(e). offenders, turn, are Sex effectuate power Clause to the Commerce keep reg- “register, to and the required Congress authority, regulate Clause could current, jurisdiction in each istration production marijuana the intra-state resides, the where the where offender “Congress concluded could and the employee, is an where offender impact that the national aggregate the student,” 16913(a), is a and to offender regulated market the” of all intra-state to “allow person periodically appear unquestionably activities “is substantial.” photo- take a current jurisdiction to 32, 125 S.Ct. 545 2195. verify and the information graph, Raich, Justice Scalia concurred in the registry in which offender each judgment separately explain and wrote to to 16916. required registered,” be that, “agree[d] although he with the Carr, 2240-41. 130 S.Ct. at The Court holding may validly Court’s that the [CSA] continued, “By facilitating the collection of applied respondents’ be cul- [intra-state] and its information dissemi sex-offender tivation, distribution, and possession among these jurisdictions, provi nation marijuana use,” personal, for medicinal his sions, 2250, center stand “understanding of the doctrinal foundation missing Congress’ effort to account is, holding on which rests if not incon- Therefore, 2241. 28 Id. at offenders.” Court, sistent with that of at least 2250(a)(2)(A), of that subsection 33, more nuanced.” Id. at statute, clearly was not enacted as a same (Scalia, J., concurring judgment). provision, but rather as a com stand-alone explained He that the combination of the provisions. Act’s other plement Cf. Necessary Proper power Clause (stating 577 F.3d at authority the Commerce Clause means “complementary” § 2250 is authority that “Congress’s to enact laws (cit §in registration requirements necessary for the proper regulation Dixon, ing United States v. F.3d is not laws interstate commerce limited to (7th Cir.2008))). against directed economic activities that

III. have a effect on com- substantial interstate [Congress regulate[ merce .... can] ] Necessary Proper Clause of the as ‘an essential [non-economic activities] gives Congress Constitution regulation of economic part larger make all shall Laws which be neces- “[t]o activity, regulatory in which the scheme into sary proper carrying Execu- Const, unless could be undercut the intrastate powers. the enumerated tion” activity regulated.’ were Specifically, respect cl. art. Lopez, S.Ct. 2195 States effectuating pow- the Commerce Clause 514 U.S. er, explained has Court (1995)). “The ques- L.Ed.2d relevant provides tion is the means chosen simply whether “compre- to enact ’ adapted to attainment ‘reasonably are legislation regulate

hensive the inter- legitimate market” end the commerce “regulation state even when 37, at power.” (empha- (quoting Id. 125 S.Ct. 2195 Wrightwood Dairy, 315 U.S. at added) 523). (quoting 118-19, sis United States v. Dar- 62 S.Ct. “Although this 100, 121, 451, by, 312 U.S. 61 S.Ct. 85 power ‘to make ... regulation effective’ (1941)). L.Ed. 609 commonly overlaps with the authority to regulate economic activities that substan- Justice interpretation Scalia based his tially commerce, affect interstate may long Supreme on a line of prece Court in some cases have been confused with 34, dents. at (citing Id. 125 S.Ct. 2195 that authority, the two are distinct. The 294, McClung, Katzenbach v. 379 U.S. regulation of an activity may intrastate be 301-02, 377, 290, 85 S.Ct. 13 L.Ed.2d essential to a comprehensive regulation (1964); Wrightwood United States v. Co., interstate 110, 119, though commerce even in- Dairy 523, the U.S. 62 S.Ct. activity trastate (1942); does not Shreveport 86 L.Ed. 726 itself ‘substan- Rate Cases, 342, 353, 833, tially affect’ 234 U.S. interstate commerce. S.Ct. More- (1914); over, L.Ed. 1341 as the passage Lopez United States v. E.C. from quoted Co., Knight 1, 39-40, 156 U.S. suggests, 15 S.Ct. above Congress may regulate 249, (Harlan, J., 39 L.Ed. 325 dis even activity noneconomic local if that senting); Coombs, States 37 regulation necessary is a part of a more (12 Pet.) 72, 78, (1838)). U.S. 9 L.Ed. 1004 general regulation of interstate com- Moreover, he explained, implicitly “[W]e (altera- merce.” Id. at 125 S.Ct. 2195 acknowledged in ... Lopez [that] Con (footnote omitted) tion in original) gress’s authority to enact necessary laws Lopez, 1624). 514 U.S. at 115 S.Ct. and proper regulation for the of interstate “The relevant question is simply whether commerce is not limited to laws directed the means chosen are ‘reasonably adapt- ’ against economic activities that have a ed to the attainment legitimate of a end substantial effect on interstate commerce. under the power.” commerce (empha- Id. Though the in Lopez conduct was not eco added) sis (quoting Darby, 312 at U.S. nomic, the Court nevertheless recognized 451). 61 S.Ct. that it regulated could be as ‘an essential , — In United States v. U.S. Comstock part of a larger regulation of economic 176 L.Ed.2d 878 activity, in which regulatory the scheme (2010), majority the Supreme the Court could be undercut unless the intrastate ” confirmed Justice Scalia’s view that activity regulated.’ were Id. at Necessary and Proper empowers Clause (quoting S.Ct. 2195 Lopez, 514 U.S. at Congress to enact legislation that 1624). is “rea 561, 115 S.Ct. “This statement re sonably adapted” to effectuating an enu ferred to those permitting cases the regu power. merated Specifically, in lation of intrastate activities ‘which in a upheld Court a way substantial federal civil- interfere with or obstruct ” commitment statute that granted exercise of the “authorizes power.’ Id. Department Co., Wrightwood Dairy Justice to detain mentally a 523) ill, sexually dangerous S.Ct. (citing Darby, prisoner be 118-19, 451; yond U.S. at the date the Shreveport prisoner would other Cases, 833). Rate wise be released. S.Ct. 18 U.S.C. 4248.” 130 “As the put Court Wrightwood 1954. The Court concluded that Dairy, where Congress has authority Congress had such power upon based regulation enact a Necessary interstate com Proper Clause’s authoriza merce, possesses ‘it every power needed tion implement the Commerce Clause regulation make that effective.’ Id. and other powers. enumerated Id. It particu- to enact a legislative whether a to determine explained statute, exercise of lar federal we look to see whether constitutional statute power, “we constitutes a means that the statute constitutes whether the statute implementation look to see to the related rationally related to a means that is constitutionally power.” enumerated constitutionally enu- implementation factor, Regarding at 1956. the second (emphasis at 1956 power.” Id. merated history explained that the of federal Court added); (stating at that also id. see in could not on involvement an area its the is constitutional under the statute a own “demonstrate statute’s constitution- “represents] if it a rational means Clause instead, that it ality”; the Court stated grant a constitutional implementing “the analyzing was a means of reasonable- authority”). The civil-commit- legislative the ness of the relation between new stat- therefore, constitutional, ment statute was pre-existing ute and interests.” “‘reasonably to Con- adapted’ it was Similarly, in expounding Id. at 1958. the a responsible to act as gress’ power factor, that a third the Court stated court rests, turn, custodian!,] in power a that find the reasons for a statute sound should legiti- criminal statutes that upon federal they “satisf[y] if the Constitution’s insis- constitutionally mately implement seek to represent that a federal statute a tence the authority,” including Com- enumerated implementing rational means for a consti- power. (empha- Id. at 1961 merce Clause authority.” grant legislative tutional Id. added) (citation omitted) Dar- (quoting sis at 1962. 451); at see id. by, 312 U.S. jurists and commentators have Other “of- (stating at that criminal statutes majority as hold- also read Comstock ten, rely exclusively” on the “Com- but not “rationally that a is re- ing statute power”). merce Clause “reasonably adapted” to an lated” or majority described five The Comstock a power enumerated constitutional ex- in holding factors it considered pression Necessary Proper was constitution- civil-commitment statute (Kenne- at power. Clause See id. “(1) Necessary and al: the breadth of the J., dy, concurring judgment) in the (2) Clause, history of fed- Proper long (“The that, when deter- Court concludes [legislating eral in in relation involvement au- mining Congress whether has the statutes,’ ‘prison-related mental health thority a law under the specific to enact Comstock, at like the one issue id. Clause, Necessary we look Proper (3) 1958], stat- the sound reasons for the ‘to see whether the statute constitutes ..., the statute’s ac- ute’s enactment rationally related to the means interests, commodation of state constitutionally enu- implementation of a scope.” at 1965. statute’s narrow at 1956 power.’ (quoting merated id. However, majority opinion demon- (majority opinion))); United States v. merely ways strates that these factors are 1275, 2011 Yelloweagle, 643 F.3d WL rephrasing implementing the notion 2011) 2,May at *9 Cir. Congress may pass laws (stating that a statute was constitutional reasonably adapted to the effec- related or Necessary Proper Clause under the powers. tuation of enumerated For exam- a rational factor, “represent[ed] because ple, discussing the first implementing means for constitutional made clear Court wrote: “We ... authority” (quoting that, grant legislative determining whether the Neces- 1962) (internal Comstock, sary Proper grants omitted)); quotation Necessary Proper marks (3d Pendleton, Comstock, Clause.” 130 S.Ct. at Cir.2011) (stating light of Com- 1956)); Virginia ex rel. v. Se Cuccinelli stock, to determine a statute is whether belius, (E.D.Va. F.Supp.2d constitutional under and 2010) (“[T]he inquiry simply relevant Clause, inquiry “the relevant is whether the means chosen are reason simply the means chosen whether are ably adapted to the attainment of a le reasonably adapted to the attainment of gitimate power end under the commerce legitimate end under the commerce or powers under other that the Constitu powers or under other grants Congress tion grants Congress Constitution the author (alteration implement.” original) (quot Comstock, ity to implement” (quoting 1957) (inter 130 S.Ct. at 1957) (internal quotation quotation omitted));8 nal marks 16A Am. omitted)); marks United States v. Bel Jur.2d Constitutional Law 343 (11th Cir.2010) fast, 783, (“In determining whether the Necessary (stating that Comstock holds that to de Proper grants Congress and Clause Necessary termine whether “the and legislative authority particular to enact a Proper grants Congress leg Clause statute, federal the court looks to see particular islative to enact a whether the statute constitutes a means statute, federal we look to see whether rationally that is imple related to the the statute constitutes a means that is constitutionally mentation of a enumerat rationally implementation related to the — Comstock, power.” ed (citing constitutionally of a power” enumerated 878)); 176 L.Ed.2d Comstock, 1956) (quoting 130 S.Ct. at Harrison, Robert R. Health Care Re (internal quotation omitted)); marks Al- Courts, in the Federal 57 Fed. Obama, form Bihani v. 25 n. 11 Law., (“In Sept. Com- (D.C.Cir.2010) J., (Kavanaugh, concurring stock, the Court that scope noted of banc) rehearing the denial of en (sug Necessary Proper Clause is lim Comstock); gesting reading the same inquiry ited ‘whether the means Holder, Mead v. 766 F.Supp.2d (D.D.C.2011) reasonably chosen are (“Courts adapted to the at look to see wheth legitimate tainment of a er the end under the challenged statute constitutes a power commerce ‘rationally powers means that other related to the implementation grants the Constitution constitutionally enu the au merated power’ thority when determining implement.’ (quoting Com stock, 1956-57)).9 whether it Congress’s power falls within factor, Mgmt., See also Gill v. history, proxy Pers. stock is a for determin- Office of (D.Mass.2010) F.Supp.2d (stating "the reasonableness of the relation be- factor, history, tween pre-existing second Comstock the new statute and interests”); Dorf, proxy to determine "the Michael C. reasonable Sexually Dangerous ness of the relation Court’s Decision About between the new statute pre-existing Key Federal Prisoners: Could.It Hold the to the interests” 1952) (internal Constitutionality quota 130 S.Ct. at the Individual Mandate to Insurance?, omitted)); Buy (May tion Health marks Findlaw.com Massachusetts 19, 2010), Servs., Dep’t http://writ.news.findlaw.com/dori7 Health & Human ("[T]he (D.Mass.2010) (same). F.Supp.2d 20100519.html seven Justices in the majority fully [iComstock] were comforta- [] 9. See also 16 Am.Jur. 2d power extending Constitutional Law ble with federal to areas that (2011) (slating § 107 independently regulable, long the second Com- are not so as tionship to the nationwide IV. designed scheme” that SORNA to cre- I conclude Accordingly, ate). By trying justify 2250(a)(2)(A)’s to intra-state application 2250(a)(2)(A) rationally related to the offenders con- of SORNA sex

violations military law under which Kebodeaux was necessary under federal law victed imprisoned, convicted and rather than rea- is, rationally related and to—that proper sonably adapted regulation to SORNA’s to—SORNA’s statuto- reasonably adapted commerce, interstate which scheme, regulate designed which is ry 2250(a)(2)(A) offenders, with was enacted movement of sex the interstate of, power. majority Congress’s integral part Commerce Clause made an using Carr, at 2240 altogether legisla- an different upon See relies 16901). I conclude particular, is, best, only tangential- tive is a constitutional ex- ly related to SORNA’s re- Congress’s ercise I quirement. Consequently, believe that it is relat- power because majority has fallen into serious error 2250(a)’s reasonably adapted to ed and reading arrogate Comstock vast revi- subsection, 2250(a)(2)(B), which we other sionary judges, powers allowing them to already proper as a exercise upheld necessary uphold proper any piece power. Whaley, of the Commerce legislation, regardless by of the vehicle reasons, I at For these 577 F.3d 258. it, Congress long which enacted so as the judgment that the of the district agree judges retrospect can in see a rational must be affirmed. court relationship between that law and some agree majority I the Although with power. enumerated of the district affirming judgment the assertion, Contrary majority’s to the court, join majority opinion I cannot George, United States v. 625 F.3d 1124 departs from the doctrinal because (9th Cir.2010), support no provides its by framework established Majority reasoning. Op. See 140-41. analyzing leg- Commerce Clause Court for constitutionality George addressed the islation, provisions as SORNA and its such 2250(a)(2)(A) response the defen- at in the case. Con- present that are issue provision dant’s claim that the fell “outside teachings the clear of the Su- trary to Congress’s clause powers.” commerce and this court in preme Court Carr panel 625 F.3d at 1129. The then stated majority interprets Whaley, “Congress power that had its 2250(a)(2)(A) as a stand-alone statute authority broad commerce clause to enact pre- to a that related George, at 1130.10 SORNA.” F.3d statute, existing military penal rather than It that explained Commerce Clause necessary and integral part as a includes the “to make all SORNA. Ma- Commeree-Clause-based 2250(a)(2)(A) ‘necessary proper’ that are laws (stating jority Op. accomplishment [Congress’s] com- “any federal concern about does not reflect power,” (quoting id. at 1129 impact on or rela- merce clause [federal offenders’] 470-72; Ambert, reasonably at 561 F.3d at regulation in those areas is related 568 F.3d scope 1210; regulation that is within the of con- Hinckley, F.3d United States v. gressional power.”). (10th Cir.2008); May, 535 F.3d at George, F.3d at 1130. 921. proposition, George support of this 10. 258; Gould, panel at cited Const, (al I, 18), authority.’ cl. which in sional Commerce Clause art. omitted) “intrastate activi regulating turn includes teration States v. United effect on inter ty that a substantial has Guzman, (2d Cir.2010))); commerce,” v. id. Wickard state Cotton, F.Supp.2d United States Filburn, 111, 125, 82, 87 317 U.S. 63 S.Ct. (D.D.C.2011)(same). 116, 139-40 (1942)). L.Ed. 122 more, the Tenth has now Circuit What Carr, George panel quoted further 2250(a)(2)(A) upheld as constitutional proposition for the ground urged my previ- the same that I entirely reasonable for “it is concurring opinion. a ous government to the federal assigned have ensuring compliance with special role Yelloweagle, 643 F.3d 2011 WL registration requirements 2011). 2,May In that Cir. persons typi who federal sex offenders — case, Yelloweagle previously “was convict- spent time under cally would offense,” ed of a federal sex “failed to Imme supervision.” criminal Id. SORNA], register required [by [and] this, diately George panel after also was indicted federal authorities under stated: United States v. Com “Compare provision,” enforcement [SORNA] —stock, 1949, 176 2250(a)(2)(A). appeal, Id. 1276. On (2010) (upholding L.Ed.2d under the “Yelloweagle contended Clause a statute 2250(a)(2)(A) jurisdictional lacked a [§ ] provided for the civil commitment of therefore basis and was unconstitutional.” sexually dangerous prisoners be Citing quoting Id. Kebodeaux yond they the date would otherwise be concurring opinion, the Tenth released).” Circuit con- Thus, holding rather than 2250(a)(2)(A) is constitutional be cluded that was constitu- rationally cause it is related reason and necessary proper tional because it was and ably adapted to a “federal interest in a to facilitate regu- SORNA’s constitutional majority convict”—as the reads the lation of sex offenders’ interstate move- opinion, Majority Op. (citing George, ment, by Congress’s which was authorized at 1130) George performed 625 F.3d the — power under the Commerce Clause. Id. at above, analysis suggest acknowledging I (also quoting 1287-88 v. Ke- United States 2250(a)(2)(A) § part of the broader bodeaux, (5th Cir.2011) 634 F.3d scheme, statutory SORNA whose aim is to (Dennis, in concurring judgment), J. the regulate offenders’ interstate move 2250(a)(2)(A) § proposition for the “that ment, 2250(a)(2)(A) § upholding aas necessary ‘a integral part the com- necessary proper extension of that ”). merce-clause-based SORNA’ so, doing it scheme. relied on the Comstock, reasoning majority in which a The Tenth in Yelloweagle Circuit approved of the Justices Justice Scalia’s surveying reached this conclusion first analysis Commerce Clause in Raich. See Registration “The Sex Offender and En- Ross, also F.Supp.2d Regime.” forcement Id. at 1277. As a (D.D.C. at 2011 WL at *13 result, recognized it that SORNA was en- 2011) Apr.19, (citing George, at 625 F.3d comprehensive statutory acted as support in of the statement “to track keep scheme of sex offenders” agrees ‘every “[t]he Court with circuit that (quoting who move interstate. Id. at 1277 has examined the in concluding issue 1129) (internal legitimate congres- 2250 is a at George, quota- exercise Kebodeaux, omitted).11 (quoting Id. Accordingly, the 16913.” tion marks (in that while the (majority opinion) court concluded at 297 turn Yelloweagle F.3d narrowly 1956)). challenge Comstock, focused his citing defendant 130 S.Ct. at “Sec provisions, 2250(a)(2)(A) one ‘clearly tion was not enacted 2250(a)(2)(A), proper for the it was provision, a stand-alone but rather as a if it were analyze provision panel to complement provi other [SORNA’s] ” In- Id. at 1287-88. statute. a stand-alone (alteration in original) (quot Id. sions.’ 2250(a)(2)(A) stead, court held that Kebodeaux, (Dennis, 634 F.3d at 301 part of SORNA’s constitutional as J., judgment)). concurring “[I]n Therefore, Id. statutory scheme. Kebodeaux, concurring opinion Judge key that Yel- explained that was court relationship be highlighted Dennis challenge his loweagle had “waived and the tween 16913,” panel presume allowing f § o regime 16913---- ‘Section was a valid exercise of the 2250(a)(2)(A)helps reg to make SORNA’s 1284-85, power. Clause Commerce ulation of interstate commerce effective 1286-87.12 obviating potential of interference sources concluded panel The Tenth Circuit then disruption objective. For exam Necessary that “the Congress not ple, had criminalized federal Enact Authority Gives undocumented, sex offenders’ intra-state 2250(a)(2)(A).” Id. at 1286. “As changes, residence there would no [be] recently stated: de- ‘[I]n Court moving deterrence to their intra-state termining whether reregistering. without This would have legisla- grants Congress Proper Clause disparate delayed enforcement caused particular to enact a tive offenders, against federal sex of SORNA statute, the statute we look to see whether allowing them to establish residences relat- constitutes a means abiders, apparent some states as law which implementation of a constitution- ed to the have made them difficult to would monitor ” (al- power.’ Id. at ally enumerated either in-state or interstate commerce.’ original) (quoting teration (third original) Id. at 1288 alteration in 1956). have before the “[W]e (Den Kebodeaux, undisputedly court an valid exercise of nis, J., judgment)). in the concurring power viz., Congress’s Commerce Clause — Therefore, stated, panel the Tenth Circuit offender scheme of the sex conclude that the au “we has Therefore, § Id. at 1287. “[i]t 16913.” thority under the beyond peradventure the crimi- seems 2250(a)(2)(A) § to enact in order to Clause provision nal enforcement validly criminally regis enforce its enacted 2250(a)(2)(A) ‘rationally § related or § provision, tration 16913.” Id. 1289. to the effectuation’ of reasonably adapted registration regime offender the sex Yelloweagle’sassumption § supporting my George 16913 is view that

11. Further 12. 2250(a)(2)(A) necessary under the Commerce Clause is upheld as constitutional holding Congress’s with the affirmative of this proper the exercise of consistent to effectuate Whaley power, 16913 is a constitu- Clause the Tenth Circuit court Commerce necessary proper only George holding, but tional exercise of the not relied on for its suggested George could be to effectuate the Commerce Clause never also 2250(a)(2)(B) any analysis, power, and that constitu- supporting other nor read as pow- split Clause reasoning it tional exercise of the Commerce the Tenth Circuit's had F.3d at 258-61. er. from the Ninth Circuit. Court and Supreme Consistent with SANCHES, Samantha Plaintiff- above, authority cited and unlike

Circuit Appellant, majority, I treat would 2250(a)(2)(A) statute. stand-alone Instead, analyze I we must believe CARROLLTON-FARMERS BRANCH part constitutional as

whether INDEPENDENT SCHOOL DIS- (1) statutory scheme. Because SORNA’s TRICT, Defendant-Appellee. circuit courts Supreme Court and consistently explained No. 10-10325. statutory regulate scheme is intended to Appeals, United States Court of offenders, the interstate movement sex Fifth Circuit. passed pursuant and thus was to Con- gress’s power; Commerce Clause July majority Comstock that a teaches approved Court has now adopted Justice Scalia’s Commerce Raich; analysis 2250(a)(2)(A) clearly facilitates SOR- regulation

NA’s of sex offenders’ inter- movement,

state because it is reasonably

related and adapted pre-

venting offenders “slipping from

through the regis- cracks” of state-based schemes,

tration I uphold would 2250(a)(2)(A) a necessary proper Congress’s

extension of Commerce Clause

power to enact provi- SORNA’s other

sions, 2250(a)(2)(B). particularly Doing

so every would be consistent with other

circuit that has considered the issue. reasons,

For these I concur in the

judgment upholding constitutionality and affirming Kebodeaux’s

conviction and sentence.

Case Details

Case Name: United States v. Anthony Kebodeaux

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 12, 2011

Citation: 647 F.3d 137

Docket Number: 08-51185

Court Abbreviation: 5th Cir.