UNITED STATES of America, Plaintiff--Appellee, v. Frank Costa ROGERS, Defendant--Appellant.
No. 10-5099
United States Court of Appeals, Fourth Circuit
March 6, 2012
468 Fed.Appx. 359
Argued: Jan. 27, 2012.
Staten did not resolve whether
We conclude that Staten controls the outcome in Tooley‘s appeal. As in Staten, Tooley argues that his right to self-defense is conduct that falls within the scope of the Second Amendment. Tooley thus argues that strict scrutiny is the appropriate form of means-end scrutiny to test the constitutiоnality of
In Staten, we concluded that the government “carried its burden of establishing a reasonable fit between the substantial government objective of reducing domestic gun violence and keеping firearms out of the hands of” persons who have been convicted of domestic violence or threatened the use of a deadly weapon against a person with whom the defendant had a domestic relationship. Id. at 167-68. Accordingly, we held that
Tooley also made a facial challenge to
Accordingly, we affirm the judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
Before GREGORY, DAVIS, and DIAZ, Circuit Judges.
Affirmed in part; vacated and remanded in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
Frank Costa Rogers appeals his conviction and twenty-one month sentence on one count of traveling in interstate commerce while failing to register as a sex offender in violаtion of
I.
Rogers first contends that the district court erred in denying his motion to dismiss the indictment. He raises challenges to the application of SORNA based on the Ex Post Facto Clause, the Commerce Clause, due process, the non-delegation doctrine, and the Administrative Procedure Act (“APA“), specifically
We note, as Rogers concedes, that we have, in published authority, rejected virtually identical Ex Post Facto, Commerce Clause, due process, and APA challenges to SORNA. See United States v. Gould, 568 F.3d 459 (4th Cir. 2009), cert. denied, --- U.S. ---, 130 S.Ct. 1686, 176 L.Ed.2d 186 (2010). “[A] panel of this court cannot overrule, explicitly or implicitly, the precedent sеt by a prior panel of this court. Only the Supreme Court or this court sitting en banc can do that.” Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271 n. 2 (4th Cir. 2002) (internal quotation marks omitted). Accordingly, we conclude that Rogers‘s Ex Post Facto, Commerce Clause, due process, and APA challenges to SORNA lack merit.
We briefly consider Rogers‘s remaining challenge, that in enacting SORNA, Congress violated the non-delegation doctrine by impermissibly delegating legislative functions to the Attorney General, namely, the discretion to determine whether SORNA‘s registration requirements would apply to sex offenders convicted prior to SORNA‘s enaсtment. Gould did not address this issue, although this court has, in two non-precedential decisions, concluded that Congress did not impermissibly delegate legislative authority to the Executive Branch. See United States v. Stewart, 461 Fed.Appx. 349, 350-51, 2012 WL 130746, at *1 (4th Cir. 2012) (unpublished); United States v. Burns, 418 Fed.Appx. 209, 211-12 (4th Cir. 2011) (unpublished).
“We review de novo a properly preserved constitutional claim.” United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009). The non-delegation doctrine “is based on the principle of preserving the separation of powers between the coordinate branches of government.” United States v. Ambert, 561 F.3d 1202, 1212 (11th Cir. 2009). While Congress may delegate some functions to the Executive Branch, the Supreme Court has held that where Congress has delineated an “intelligible principle” guiding the exercise of that authority, the non-delegation doctrine is not offended. See J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928). Even a general legislative directive is a constitutionally sufficient intelligible principle “if Congress clearly delineates the general poliсy, the public agency which is to apply it, and the boundaries of this delegated authority.” Mistretta v. United States, 488 U.S. 361, 372-73, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989)
Rogers argues that there is no “intelligible principle” to guide the Attorney General in the exercise of his discretion to promulgate rules or otherwise to administer the application of SORNA. This сlaim is without merit. We are satisfied that the persuasive reasoning of the panels in Burns and Stewart, although those decisions are not controlling, fully disposes of the claim here. We agree with the views of the panels in Burns and Stewart, noting Congress‘s statement that SORNA‘s purpose is “to protect the public from sex offenders and offenders against children’ through ‘a comprehensive national system for the registration of those sex offenders.‘” Burns, 418 Fed.Appx. at 211 (quoting
II.
Next, Rogers claims that the district court abused its discretion when it imposed the following improper conditions of supervised release: ordering him to submit to substance abuse, mental health, and sex offender treatment programs (the latter coupled with random polygraph examinations). “District courts have broad latitude to impose conditions on supervised release, and so we review such conditions only for abuse of discretion.” United States v. Armel, 585 F.3d 182, 186 (4th Cir. 2009) (internal quotation marks omitted). The sentencing court may impose any condition that is reasonably related to the relevant statutory sentencing factors, which include: “the nature and circumstances of the offense and the history and characteristics of the defendant,”
The sentencing court must also ensure that the condition “involves no greater deprivation of liberty than is reasonably necessary” to afford adequate deterrence, protect the public from further crimes, and to provide the defendant with training, care or treatment.
Guided by the above principles, our review of the record leads us to conclude that the district court abused its discretion in its imposition as a condition of super-
Although the presentence investigation report indicated that Rogers‘s 1989 criminal sexual conduct conviction arose out of the forcible rape of an adult female, there was no evidence before the district court that such an act of violence has characterized Rogers‘s offense behaviors in the many years since he was released frоm incarceration. Nor did the government argue that such a condition was appropriate in the circumstances of this case. The district court failed even to order that Rogers first be professionally evaluated for the purpose of obtaining a reliable expert opinion whether participation in a treatment program for sexual offenders actually comported with the needs of society or of Rogers himself. See United States v. Smith, 655 F.3d 839, 844, 847 (8th Cir. 2011) (sustaining imposition of condition requiring defendant convicted solely of failure to register to “undergo a sеx offense-specific evaluation and participate in a sex offender treatment and/or mental health treatment program approved by the U.S. Probation Officer,” while observing that passage of twelve years since defendant‘s underlying sex offense “might not by itself support the condition,” and ultimately concluding that propriety of the condition was “a close question“) (emphasis added). This failure is in keeping with the court‘s conclusory observation that “the sex offender treatment will be commensurate with what [is] appropriate in light of [this] defendant‘s record,” J.A. 233, which is an inadequate basis on which to rest the condition it imposed.
Even in light of the broad discretion afforded district courts in their imposition of supervised release conditions, we fail to see how a practice such as that followed here comports with the necessity of reasonableness in the imposition of conditions of release.*
We are persuaded that the district court was on firmer ground as to its imposition of the remaining challenged conditions. The court pointed to Rogers‘s prior convictions (including a conviction fоr armed robbery) to support its conclusion that mental health treatment is appropriate. The district court relied on
Finally, Rogers suggests that there are “less restrictive” options for drug testing that the court should have considered. Appellant‘s Br. 40. He does not elaborate as to what those options are, or why it was an аbuse of the district court‘s wide latitude to decline to employ them. Therefore, we discern no abuse of discretion as to the drug testing requirement.
III.
For the reasons set forth, we affirm the conviction and so much of the judgment as imposed as special conditions of supervised release participation in a mental health and a drug treatment program. We conclude, however, that the district court abused its discretion in its singular reliance on a decades old sexual assault conviction to order as a special condition of supervised release that Rogers participate in a sex offender treatment program (and the related requirement of random polygraphs). As to the latter, we vacate the judgment and remand for the entry of a modified judgment striking those conditions of supervised release.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
PER CURIAM