U.S. v. Ambert, 08-13139.

Citation561 F.3d 1202
Decision Date06 March 2009
Docket NumberNo. 08-13139.,08-13139.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Gene Felix AMBERT, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

William E. Bubsey (Court-Appointed), McCord, Bubsey, Ketchum, LLP, Tallahassee, FL, for Ambert.

Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for U.S.

Appeal from the United States District Court for the Northern District of Florida.

Before MARCUS, ANDERSON and CUDAHY,* Circuit Judges.

MARCUS, Circuit Judge:

Defendant Gene Felix Ambert appeals from the district court's denial of his motion to dismiss the charges levelled against him for failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA") in violation of 18 U.S.C. § 2250(a). Ambert argues that he is not bound by the criminal provisions of SORNA. He also challenges the constitutionality of SORNA on the grounds that it violates the non-delegation doctrine, the ex post facto clause, the commerce clause, his procedural and substantive due process rights, and his right to travel. After thorough review, we conclude that Ambert as a sex offender is bound by SORNA, that the statute is constitutional on its face and as applied to him, and accordingly we affirm.

I.

The essential factual and procedural history is not disputed. Ambert was convicted in California in February 1975 of Crimes Against Children and sentenced to five years' probation. On December 1, 2005, Ambert completed a Sex Offender Registration form in California, pursuant to Cal.Penal Code § 290, acknowledging among other things that he had a lifetime requirement to update his sex offender registration each year within five days of his birthday, and if he moved to a new state, to register within ten days in the new state and notify California within five days of the move. Ambert failed to register in California during 2006, and likewise failed to register in Florida after having moved to Tallahassee, Florida.

Ambert moved from California to Tallahassee, Florida in early 2006. A year and a half later, on July 4, 2007, the Tallahassee Police Department investigated a lewd and lascivious act committed against a child, and this investigation led them to the defendant Ambert. In the course of the investigation, the police confirmed that Ambert was the sole resident of a house in Tallahassee, Florida, and also discovered that he was listed as having absconded from California's Sex Offender Registry. On July 6, 2007, an arrest warrant for Ambert was issued, charging him with failure to register as a sex offender as required by Fla. Stat. § 943.0435.1

Ambert traveled from Florida back to California on July 9, 2007. He returned to Florida on July 11, 2007 and was arrested in Jacksonville. On September 18, 2007, Ambert was charged in a superseding federal indictment filed in the United States District Court for the Northern District of Florida with traveling in interstate commerce to Florida, and failing to register with the State of Florida, under the Sex Offender Registration and Notification Act, in violation of 18 U.S.C. § 2250(a).

Ambert moved to dismiss the indictment, arguing that the indictment was improper because Congress did not intend SORNA to apply to his offense based on his dates of travel. Moreover, he claimed that SORNA was unconstitutional because the statute amounted to: 1) an excessive delegation of legislative authority; 2) an impermissible ex post facto law; 3) a violation of the commerce clause; 4) a violation of his procedural and substantive due process rights; 5) an impermissibly vague travel requirement; and 6) a violation of his right to travel.

Soon thereafter, the district court denied the defendant's motion to dismiss. Ambert entered a conditional plea of guilty pursuant to an agreement that allowed him to preserve the right to appeal the denial of his motion to dismiss. See Fed. R.Crim.P. 11(a)(2). On April 21, 2008, he was sentenced to a thirty-seven month term of imprisonment and a twenty-five year term of supervised release. This timely appeal followed.

II.

We review a district court's denial of a motion to dismiss for abuse of discretion. See United States v. Madera, 528 F.3d 852, 854 (11th Cir.2008). However, this appeal raises a number of issues concerning statutory interpretation and constitutional law, which we review de novo. United States v. Castro, 455 F.3d 1249, 1251 (11th Cir.2006).

SORNA was enacted in July 2006 "to protect the public from sex offenders and offenders against children . . ." by establishing "a comprehensive national system for the registration of those offenders." 42 U.S.C. § 16901. Indeed, the statute was designed "to track the interstate movement of sex offenders." United States v. Howell, 552 F.3d 709, 716 (8th Cir.2009). Pertinent to the resolution of this appeal, SORNA § 16913 delineates when and how a sex offender must register under the Act. It states:

(a) In general

A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration The sex offender shall initially register—(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or (2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(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.

42 U.S.C. § 16913.

SORNA also creates new penalties for individuals who, among other things, fail to register despite being required to do so. Section 2250(a) provides that:

(a) In general—Whoever—(1) is required to register under the Sex Offender Registration and Notification Act . . . (2)(B) travels in interstate or foreign commerce . . .; 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.

18 U.S.C. § 2250(a).

On February 28, 2007, in accordance with the congressional grant of authority given to him in 42 U.S.C. § 16913(d), the Attorney General enacted 28 C.F.R. § 72.3, which applied SORNA registration requirements "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 C.F.R. § 72.3.

Initially, we observe that prior decisions of the Supreme Court and this Court dispose of Ambert's claims that SORNA does not apply to him or that it violates his due process rights, his right to travel, or the ex post facto clause. Nor are we persuaded that the codification of SORNA exceeds Congress' commerce clause power or that it amounts to an improper delegation of congressional power in violation of separation of powers principles.

A. SORNA's Applicability to Ambert

First, Ambert argues that § 2250 of Title 18 of the United States Code— which made it a crime for anyone who "travels in interstate or foreign commerce" to knowingly fail to register or update a registration as required by SORNA—does not apply to him because his relevant travel occurred before the Attorney General determined on February 28, 2007 that the statute's registration requirements apply to all offenders convicted before July 27, 2006. But, as the district court clearly recognized, the indictment was based in part on Ambert's travel from Florida to California and back on July 9-11, 2007, well after the effective date of the statute. See United States v. Ambert, 2007 WL 2949476, at *5 (N.D.Fla. Oct. 10, 2007) (unpublished) ("Part of the date that Defendant is accused of violat[ing] SORNA is `on or about July 11, 2007.'"). We agree with the trial court that § 2250 unambiguously applies to Ambert—he had an obligation to register beginning on February 28, 2007 and traveled in interstate commerce after this date on July 9-11, 2007.

However, even if we were to assume arguendo that Ambert's relevant travel occurred before February 28, 2007, our recent decision in United States v. Dumont, 555 F.3d 1288 (11th Cir.2009), would be dispositive of Ambert's argument. In Dumont, a sex offender convicted of a qualifying offense before July 27, 2006, and who had traveled in interstate travel prior to February 28, 2007, was successfully prosecuted for failure to register as a sex offender under 18 U.S.C. § 2250 after February 28, 2007. On appeal, he challenged...

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