U.S. v. Hacker

• Decision Date: 13 May 2009
• Docket Number: No. 08-2427.,08-2427.
• Citation: 565 F.3d 522
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott A. HACKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

565 F.3d 522

UNITED STATES of America, Plaintiff-Appellee, v. Scott A. HACKER, Defendant-Appellant.

No. 08-2427.

United States Court of Appeals, Eighth Circuit.

Submitted: March 11, 2009.

Filed: May 13, 2009.

Karen Marie Shanahan, AFPD, argued and on the brief, Omaha, NE, for appellant.

Michael P. Norris, AUSA, argued and on the brief, Omaha, NE, for appellee.

Before WOLLMAN, BRIGHT, and COLLOTON, Circuit Judges.

BRIGHT, Circuit Judge.

Appellant Scott Hacker challenges the district court's¹ denial of his motion to dismiss an indictment charging him with failing to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. §§ 16901-16991. We have jurisdiction over this appeal from 28 U.S.C. § 1291. Because the district court did not err by denying Hacker's motion, we affirm.

FACTS AND PROCEDURAL HISTORY

The material facts are undisputed. In 1995, Hacker was convicted in Texas of aggravated sexual assault of a child, a first-degree felony, for which he received a sentence of 10 years' probation. In 1996, Hacker was convicted of sexual assault in Texas and sentenced to five years' imprisonment. After being released from prison in 2000, Hacker registered as a sex offender in Texas.

In 2001, Hacker notified the Texas Department of Public Safety that he moved to California. He initially registered in California, but failed to keep his registration in compliance with California law after December 5, 2002. In the summer of 2002, Hacker moved to Wisconsin. Although he registered on arrival, he did not notify California authorities that he had moved to another state. In May 2007, Hacker moved to Nebraska, where he obtained a Nebraska driver's license. Hacker did not register as a sex offender in Nebraska.

In July 2007, Hacker was indicted for failing to register in accordance with SORNA, in violation of 18 U.S.C. § 2250(a). Specifically, the indictment alleged that Hacker, having been convicted in Texas of an offense requiring him to register as a sex offender, traveled in interstate commerce to Nebraska and knowingly failed to register as a sex offender there.

Hacker moved to dismiss the indictment, arguing that Congress (1) lacked authority under the Commerce Clause to enact SORNA's registration requirements and penalty provision; (2) violated the Tenth Amendment by compelling states to accept registrations from a federally mandated sex-offender program; and (3) granted the Attorney General the authority to legislate the scope of SORNA's retrospective reach in violation of the non-delegation doctrine.

After a hearing, Magistrate Judge Thomas D. Thalken issued a report and recommendation, which concluded that Hacker's motion should be denied. In February 2008, the district court adopted the report and recommendation in its entirety.

Hacker then entered into a conditional guilty-plea agreement with the government, reserving the right to appeal the denial of his motion to dismiss. In June 2008, Hacker was sentenced to 18 months' imprisonment, followed by 10 years' supervised release. This timely appeal follows.

DISCUSSION

We review de novo the denial of a motion to dismiss an indictment. See United States v. Smith, 171 F.3d 617, 619 (8th Cir.1999). Hacker challenges the constitutionality of SORNA, contending that it violates the Commerce Clause, the Tenth Amendment, and the non-delegation doctrine. "We review a challenge to the constitutionality of a federal statute de novo." United States v. Betcher, 534 F.3d 820, 823 (8th Cir.2008). Hacker also argues, for the first time on appeal, that the Attorney General violated a provision of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553, in promulgating an interim rule that made SORNA's registration requirement apply retroactively. This is a question of law, which we review de novo. See 5 U.S.C. § 706(2)(D); Gumaneh v. Mukasey, 535 F.3d 785, 788 (8th Cir.2008) ("We review questions of law de novo....").

I. SORNA

Title I of the Adam Walsh Child Protection and Safety Act of 2006 ("Adam Walsh Act"), Pub.L. No. 109-248 (2006), includes SORNA. The Adam Walsh Act became law on July 27, 2006. SORNA's registration provision, § 16913, provides, in relevant part:

(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.

SORNA also created a federal criminal offense, 18 U.S.C. § 2250, of failing to register as a sex offender. Section 2250, provides, in relevant part:

(a) In general. — 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.

II. Commerce Clause

Hacker argues first that SORNA's registration requirements and criminal-enforcement provision violate the Commerce Clause. Specifically, Hacker asserts that SORNA does not regulate one of the three categories of activity described by the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

But as Hacker acknowledges, our case law forecloses this argument. In United States v. May, we rejected a similar challenge to § 2250, holding that SORNA's penalty provision "contains a sufficient nexus to interstate commerce." 535 F.3d 912, 922 (8th Cir.2008). And recently, this court upheld the registration requirements in § 16913 against a Commerce Clause challenge, concluding that they "are reasonably adapted to the legitimate end of regulating `persons or things in interstate commerce' and `the use of the channels of interstate commerce.'" United States v. Howell, 552 F.3d 709, 717 (8th Cir.2009) (quoting Lopez, 514 U.S. at 558-59, 115 S.Ct. 1624).

We are bound by these decisions. See Betcher, 534 F.3d at 823 ("[I]t is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel."); Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002). Because we have already concluded that SORNA's registration and penalty provisions are valid exercises of congressional authority under the Commerce Clause, we reject Hacker's argument.

III. Tenth Amendment

Hacker argues next that the district court should have dismissed the indictment because "SORNA impermissibly encroaches upon state power in violation of the Tenth Amendment." This appears to be an issue of first impression not only in our circuit, but also in any federal appellate court.²

But before reaching the merits of Hacker's Tenth Amendment argument, we must ensure that he has standing to raise the argument. See Pucket v. Hot Springs Sch. Dist. No. 23-2, 526 F.3d 1151, 1156 (8th Cir.2008) (recognizing that standing is a jurisdictional requirement and "can be raised by the court sua sponte at any time during the litigation" (internal quotation marks omitted)). We conclude that he does not.³

The Eighth Circuit has not decided whether a private individual has standing to bring a Tenth Amendment claim.⁴ The Tenth Amendment provides that "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." U.S. Const. amend. 10. It appears that six circuits have analyzed whether a private party has standing to assert a Tenth Amendment claim. The Seventh and Eleventh Circuits have permitted private parties to bring such claims. See Gillespie v. City of Indianapolis, 185 F.3d 693, 703-04 (7th Cir. 1999); Atlanta Gas Light Co. v. U.S. Dep't of Energy, 666 F.2d 1359, 1368 n. 16 (11th Cir.1982). Conversely, the First, Second, Ninth and Tenth Circuits have concluded that private parties lack standing to raise a Tenth Amendment claim. See Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir.2009); Brooklyn Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d 219, 234-36 (2d Cir.2006); Medeiros v. Vincent, 431 F.3d 25, 33-36 (1st Cir.2005); United States v. Parker, 362 F.3d 1279, 1284 (10th Cir.2004). We now join the majority of circuits and hold that a private party does not have standing to assert that the federal government is encroaching on state sovereignty in violation of the Tenth Amendment absent the involvement of a state or its instrumentalities.

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