UNITED STATES of America v. Paul SHENANDOAH, Appellant.
No. 09-1205.
United States Court of Appeals, Third Circuit.
Filed: Feb. 9, 2010.
595 F.3d 151
Submitted Under Third Circuit LAR 34.1(a) Oct. 2, 2009.
I fear the Majority‘s holding will significantly undercut the force of the presumption of arbitrability in cases involving similar arbitration provisions. In such cases, courts in our Circuit will presumably conclude that they may examine the merits of every grievance and, upon determining that the arbitration proponent‘s interpretation of the bargaining agreement is not sufficiently “plausible,” refuse to compel arbitration. I do not believe the Steelworkers Courts envisioned such a screening role for courts, nor do I believe the Litton Court intended to announce an exception to the presumption of arbitrability that would effectively swallow the presumption itself.
For these reasons, I respectfully dissent.
Frederick W. Ulrich, Esq., Thomas A. Thornton, Esq., Office of the Federal Public Defender, Harrisburg, PA, for Appellant.
Martin C. Carlson, Esq., Theodore B. Smith, III, Esq., Office of the United States Attorney, Harrisburg, PA, for Appellee.
Before: McKEE, CHAGARES, and NYGAARD, Circuit Judges.
NYGAARD, Circuit Judge.
Paul Shenandoah was indicted in December of 2007 for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SOR
He pleaded not guilty and asked the District Court to dismiss the indictment, arguing that SORNA violated the Non-Delegation Doctrine, the Administrative Procedure Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment and his right to travel. The District Court denied the motion. United States v. Shenandoah, 572 F.Supp.2d 566 (M.D.Pa.2008). Shenandoah then pleaded guilty to failing to register as a sex offender under SORNA, but reserved his right to appeal the order refusing to dismiss the indictment. See
I.
The factual and procedural background of this appeal is straightforward and undisputed. An abbreviated recitation will suffice. Shenandoah, a New York resident, was convicted of third degree rape in February of 1996.1 He executed a New York state sexual offender registration form when he was paroled in February of 2002. This form requires, among other things, that he apprise New York of any changes in his home address and place of employment. Some time in August of 2007, Shenandoah‘s employment as an iron worker required that he travel to, and relocate in, York County, Pennsylvania. He failed, however, either to register as a sex offender in Pennsylvania, or to modify his New York registration to reflect his change of residence and employment, leading to his indictment.
II.
The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587, was enacted to close the loopholes in previous sex offender registration legislation and to standardize registration across the states.2 See United States v. Ensminger, 567 F.3d 587, 588 (9th Cir.2009). The Adam Walsh Act is divided into seven titles, the first of which contains SORNA.
SORNA creates a national sex offender registry with the goal of eliminating inconsistencies among state laws. Id. SORNA applies to a broadly-defined class of “sex offenders,” which includes persons convicted of child pornography offenses as well as almost all offenses involving illegal sexual conduct. See
(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 em
ployee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.
(b) Initial registration
The sex offender shall initially register-
(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.
(c) Keeping the registration current
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.
(d) Initial registration of sex offenders unable to comply with subsection (b) of this section
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
(e) State penalty for failure to comply
Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.
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.
SORNA requires states to implement the statute or lose “10 percent of the funds that would otherwise be allocated” to the state under the Omnibus Crime Control and Safe Streets Act of 1968 for a given year.
Responding to the directive contained in § 16913(d), the Attorney General initially announced an interim rule that became effective on February 28, 2007. See 72 FED.REG. 8894 (Feb. 28, 2007). Pursuant to this rule, the Attorney General declared that SORNA‘s requirements applied “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of [SORNA].” 28 C.F.R. § 72.3 (2007). The Attorney General then followed up with more detailed proposed guidelines that were subject to notice and comment. See 72 FED.REG. 30210 (May 30, 2007). The Attorney General‘s final regulations on the interpretation and implementation of SORNA became effective on July 2, 2008, one week after Shenandoah filed his Motion to Dismiss. See 73 FED.REG. 38030 (July 2, 2008).
III.
Shenandoah raises numerous challenges to SORNA. He asserts that SORNA did not apply to him since neither New York nor Pennsylvania have implemented the law. Further, he argues that his prosecution under SORNA violates due process because it was impossible for him to comply with the statute‘s dictates and because he did not receive any notice of his duty to register. Shenandoah also asserts that SORNA violates the Commerce Clause, the Tenth Amendment and his constitutional right to travel. Finally, he maintains that SORNA violates the Nondelegation Doctrine and the Administrative Procedure Act. There have been hundreds of similar challenges to the statute filed in federal courts around the nation, each raising constitutional challenges to SORNA. To date, the Courts of Appeal for the Fourth, Fifth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuits have all rejected various constitutional challenges to SORNA. See United States v. George, 579 F.3d 962 (9th Cir.2009); United States v. Whaley, 577 F.3d 254 (5th Cir.2009); United States v. Gould, 568 F.3d 459 (4th Cir.2009); United States v. Ambert, 561 F.3d 1202 (11th Cir.2009); United States v. Dixon, 551 F.3d 578 (7th Cir.2008); United States v. Lawrance, 548 F.3d 1329 (10th Cir.2008); United States v. May, 535 F.3d 912 (8th Cir.2008).
Traditionally, when reviewing a motion to dismiss an indictment, our standard of review is mixed, employing plenary or de novo review over a district court‘s legal conclusions, and reviewing any challenges to a district court‘s factual findings for clear error. United States v. Nolan-Cooper, 155 F.3d 221, 229 (3d Cir.1998); see also United States v. Barbosa, 271 F.3d 438, 469 (3d Cir.2001). However, Shenandoah does not challenge the District Court‘s factual determinations. We are, therefore, reviewing de novo the District Court‘s legal conclusions.3 We will affirm.
As a threshold argument, Shenandoah contends that SORNA does not apply to him because neither Pennsylvania nor New York have implemented the Act. Because Shenandoah was already a registered sex offender when SORNA was enacted, SORNA required only that he keep his registration current on and after July 27, 2006. The allegations in the indictment, to which Shenandoah provisionally pleaded guilty, clearly pertain to his failure to keep his registration current and, as such, are covered by
Furthermore, the directive found in
Shenandoah‘s reliance on the Attorney General‘s SORNA Guidelines, 72 FED.REG. 30210 (May 30, 2007), is misplaced. In May 2007, the Attorney General issued proposed Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (“SMART“) Guidelines ostensibly to provide assistance to those states implementing SORNA. 72 FED.REG. at 30210. Shenandoah maintains that one of these SMART guidelines plainly instructs that convicted sex offenders have a duty to register only after a jurisdiction implements SORNA:
With respect to sex offenders with pre-SORNA [enactment] or pre-SORNA implementation convictions who remain in the prisoner, supervision, or registered sex offender populations at the time of implementation ... jurisdictions should endeavor to register them in conformity with SORNA as quickly as possible.
72 Fed.Reg. 30210, 30228 (May 30, 2007). Shenandoah argues that this language shows that SORNA was not intended to be enforced until after the states had implemented the law‘s requirements. We disagree. The plain language of SORNA requires an offender to update their state registration, independent of any construc
B. Ex Post Facto Clause
The Ex Post Facto Clause of the Constitution forbids any law that “changes the punishment, and inflicts a greater punishment” for pre-existing conduct. Hameen v. State of Delaware, 212 F.3d 226, 235 (3d Cir.2000) (citing Calder v. Bull, 3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798)). Shenandoah argues that subjecting him to punishment for failing to register under SORNA-a law not yet enacted when he was discharged from prison in New York-would violate the Ex Post Facto Clause of the Constitution. We need not dwell long on this issue. Specifically, SORNA‘s criminal provision is violated when an offender who was (1) required to register in some jurisdiction; (2) knowingly failed to register or update a prior registration; and (3) traveled in interstate commerce.
Shenandoah was required by law to update his registration as a sex offender. He failed to do so when he traveled from New York to Pennsylvania. His travel took place in August of 2007, after the enactment of the statute. Neither SORNA nor Shenandoah‘s conduct implicate the Ex Post Facto clause because neither contemplate retroactive events. Congress created a new law. Shenandoah committed a new crime.
Furthermore, the Ex Post Facto Clause would protect Shenandoah only if all the acts required for criminal punishment occurred before
C. Notice Arguments
Shenandoah next claims that he had no duty to register under SORNA because the Government failed to notify him of these new requirements. He argues that without this notification, he could not “knowingly fail to register.” See
Shenandoah argues therefore, that because
Overlooked in this argument is the fact that SORNA‘s criminal provision is not a specific intent law. See United States v. Gould, 568 F.3d 459, 468 (4th Cir.2009). As set out in
It is axiomatic that ignorance of the law does not provide a defense, for it is presumed that every person knows the law. See Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991); see also United States v. Carbo, 572 F.3d 112, 116 (3d Cir.2009). Shenandoah argues further that even in the absence of actual notice of criminal liability, due process requires that a statute not criminalize “wholly passive conduct.” Relying on the Supreme Court‘s decision in Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), Shenandoah claims that he is being prosecuted for wholly passive conduct, namely his failure to register. In Lambert, when considering a city ordinance that required all felons to register, the Supreme Court noted that “circumstances which might move [a felon] to
Unlike an isolated city ordinance that requires all members of the broad class of all felons to register, SORNA instead criminalizes the failure to register of a much more narrowly targeted class of persons in a context where sex-offender registration has been the law for years and Shenandoah knew that. It is undisputed that Shenandoah knew that he was required to register under New York law, which mandated that he update his registration if he traveled or moved out of state and that he register in the new state. The registration form that Shenandoah signed notified him of his legal obligations as a sex offender even though he was not, and could not have been, notified of his duty under federal law. When SORNA was enacted, every State had registration requirements for sex offenders. These circumstances do not permit us to conclude that Shenandoah‘s due process rights, based on lack of notice, were violated. See May, 535 F.3d 912, 921 (8th Cir.2008) (holding that notice of the duty to register under state law provides notice of the duty to register under SORNA); United States v. Hinckley, 550 F.3d 926, 938-39 (10th Cir.2008) (same).
We can find no reason to hold that SORNA‘s notice provision was intended to dilute the effect of state notice requirements. We conclude that Shenandoah had notice of his registration obligations based on the information provided him in the New York registration forms, even if that notice did not explain that a consequence of failing to register would be a violation of federal law and state law.
IV.
Shenandoah also brings several other broader Constitutional challenges to SORNA. He argues that the statute violates the Commerce Clause and the Tenth Amendment of the Constitution. He also argues that SORNA violates his constitutional right to interstate travel.
A. Commerce Clause
Shenandoah contends that Congress exceeded its commerce clause authority when it passed SORNA because the statute, he argues, contains neither a sufficient nexus to commerce, nor a substantial effect on interstate commerce. Although we have not had occasion to address this issue, we now join the other courts of appeals that have done so, and hold SORNA to be a proper regulation under Congress’ commerce power. See, e.g., May, 535 F.3d at 921-22; United States v. Howell, 552 F.3d 709, 713 (8th Cir.2009); Hinckley, 550 F.3d at 939-40; United States v. Lawrance, 548 F.3d 1329, 1336-37 (10th Cir.2008); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir.2009).
Congress’ commerce clause power is derived from Article I, section 8 of the United States Constitution, which provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
The Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), synthesized and articulated the boundaries of this power. In Lopez, the Court addressed the constitutionality of the Gun-Free School Zones
SORNA requires the government to prove that Shenandoah traveled in interstate or foreign commerce, and thereafter failed to register as required by SORNA. See
We conclude that SORNA is a proper regulation of commerce under the Lopez categories because it not only regulates persons or things in interstate commerce, but also regulates the use of channels of interstate commerce and the instrumentalities of interstate commerce.5
B. Tenth Amendment
Shenandoah argues that SORNA is unconstitutional because it compels New York law enforcement to accept registrations from federally-mandated sex offender programs in violation of the Tenth Amendment, which provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Here, just as in Hacker, Shenandoah is challenging SORNA in his individual capacity, and he does not assert the “involvement of a state or its instrumentalities.” Hacker, 565 F.3d at 526. Shenandoah has not argued that his interests are aligned with any state‘s interest. Because Shenandoah is a private party, he lacks standing to raise a Tenth Amendment challenge to SORNA.
C. Right to Travel
Shenandoah next argues that
“[T]he ‘constitutional right to travel from one State to another’ is firmly embedded in our jurisprudence.” Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999) (quoting United States v. Guest, 383 U.S. 745, 757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966)). There are several constitutional bases for the right to travel, including general constitutional principles, see, e.g., United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); the Privileges and Immunities Clause of Article IV, § 2 of the Constitution; Hess v. Pawloski, 274 U.S. 352, 47 S.Ct. 632, 71 L.Ed. 1091 (1927); the Privileges or Immunities Clause of the Fourteenth Amendment, Twining v. State of N.J., 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908); and the Due Process Clause of the Fifth Amendment; State v. Barker, 252 Kan. 949, 850 P.2d 885 (Kan.1993).
In Saenz v. Roe, the Supreme Court struck down a California law that limited welfare benefits for new residents. 526 U.S. 489. The Supreme Court held that the Constitution protects the rights of United States citizens to choose where they live and not be treated differently than long-term residents. Id. at 500, 119 S.Ct. 1518. This right to travel “protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State.” Id. at 500, 119 S.Ct. 1518.
Most right to travel cases, however, focus on the Constitutionality of a particular state statute that may treat a state‘s citizens in a preferred manner as compared to newly arrived migrants. See e.g. Doe v. Pa. Bd. Probation and Parole, 513 F.3d 95 (3d Cir.2008). Here Shenandoah insists: “SORNA penalizes a distinct group of sex offenders for exercising their right to travel because they are then subject to federal prosecution for failing to register as a sex offender where individuals who do not travel interstate are not so penalized.” This is true, but meaningless. Shenandoah may travel interstate, but when he does, must register in the new state, while a convicted sex offender who remains within a state need only remain properly registered therein. There is simply no Constitutional violation. Moreover, moving from one jurisdiction to another entails many registration requirements required by law which may cause some inconvenience, but which do not unduly infringe upon any
Finally, it is worth noting that the Constitutional right of interstate travel is not an absolute right, and the burden imposed upon Shenandoah is necessary to achieve a compelling interest. Sex offender registration requirements may be burdensome, and the consequences may interfere with a registrant‘s freedom. However, society, through its legislative processes, has decided again and again that it has a compelling and strong interest in preventing future sex crimes. We conclude that this interest outweighs any burden imposed. See also Ambert, 561 F.3d at 1210 (“The requirement to update a registration under SORNA is undoubtedly burdensome; however, the government‘s interest in protecting others from future sexual offenses and preventing sex offenders from subverting the purpose of the statute is sufficiently weighty to overcome the burden. This statute does not violate Ambert‘s right to travel.“). Any impediment on Shenandoah‘s travel does not reach the Constitutional threshold of his right to travel interstate.
V.
Shenandoah additionally argues that Congress’ delegation of authority to the Attorney General under
We do not reach these issues. The allegations contained in the indictment here do not establish a record of Shenandoah‘s failure to comply with the initial registration requirements discussed in
The allegations in this case clearly pertain to Shenandoah‘s failure to keep his registration current and, as such, are covered by
The regulations promulgated by the Attorney General pursuant to § 16913(d) do not apply here and we express no opinion on their validity. The manner in which
VI.
The judgment of the District Court will be affirmed.