U.S. v. Shenandoah, No. 09-1205.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtNygaard
Citation595 F.3d 151
PartiesUNITED STATES of America v. Paul SHENANDOAH, Appellant.
Decision Date09 February 2010
Docket NumberNo. 09-1205.
595 F.3d 151
UNITED STATES of America
v.
Paul SHENANDOAH, Appellant.
No. 09-1205.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit LAR 34.1(a) October 2, 2009.
Filed: February 9, 2010.

[595 F.3d 153]

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.

OPINION OF THE COURT

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 (SORNA),

595 F.3d 154

18 U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was also charged with two counts of knowingly and willfully providing false information to law enforcement officials regarding his federal sex offender registration offenses, in violation of 18 U.S.C. §§ 1001 and 1512(b)(3).

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 FED.R.CRIM.P. 11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir.1975).

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 42 U.S.C. § 16911. SORNA sets forth requirements for offenders who must initially register, and for those offenders who are already registered, but must update their registration:

(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,

595 F.3d 155

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 provides for criminal penalties for failing to comply with its registration requirements. Section 2250(a) states as follows:

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.

18 U.S.C. § 2250(a). The Attorney General is also directed to "maintain a national database ... for each offender." 42 U.S.C. § 16919(a).

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. 42 U.S.C. § 16925(a). States are

595 F.3d 156

required to "maintain a jurisdiction-wide sex offender registry conforming to the requirements of [SORNA]," 42 U.S.C. § 16912(a); "provide a criminal penalty" for a sex offender's failure to register, 42 U.S.C. § 16913(e); and "immediately ... provide the information into the registry" about an offender who has registered or updated a registration to other entities, including the Attorney General, local law enforcement agencies and certain social service and volunteer organizations that work with children. 42 U.S.C. § 16921(b).

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.

595 F.3d 157

A. Applicability of SORNA

As a threshold argument, Shendandoah contends that SORNA does not...

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99 practice notes
  • U.S. v. Pendleton, No. 10–1818.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 7, 2011
    ...(2) and 42 U.S.C. § 14072(i)(1), making it illegal for a sex offender to fail to properly register after traveling in interstate commerce. 595 F.3d 151, 161 (3d Cir.2010); accord United States v. Ambert, 561 F.3d 1202, 1211 (11th Cir.2009); United States v. May, 535 F.3d 912, 921 (8th Cir.2......
  • Goudy-Bachman v. United States Dep't of Health & Human Servs., Civil Action No. 1:10–CV–763.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 13, 2011
    ...Notification Act before and after traveling in interstate commerce (upheld under Commerce Clause challenge in United States v. Shenandoah, 595 F.3d 151, 160 (3d Cir.2010); United States v. May, 535 F.3d 912, 921–22 (8th Cir.2008); United States v. Hinckley, 550 F.3d 926, 939–40 (10th Cir.20......
  • U.S. v. Johnson, No. 09–60823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 4, 2011
    ...Eighth, and Tenth Circuits have held that private parties do not have standing to bring such claims. See United States v. Shenandoah, 595 F.3d 151, 161–62 (3d Cir.2010); United States v. Hacker, 565 F.3d 522, 526 (8th Cir.2009); Brooklyn Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d......
  • U.S. v. Fuller, Docket No. 09-1437-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 30, 2010
    ...failure to register such that [the defendant] must know his failure to register violated federal law."); United States v. Shenandoah, 595 F.3d 151, 159 (3d Cir.2010) (same); United States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir.2010) (same). Fuller has failed to identify any reason w......
  • Request a trial to view additional results
98 cases
  • U.S. v. Pendleton, No. 10–1818.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • September 7, 2011
    ...(2) and 42 U.S.C. § 14072(i)(1), making it illegal for a sex offender to fail to properly register after traveling in interstate commerce. 595 F.3d 151, 161 (3d Cir.2010); accord United States v. Ambert, 561 F.3d 1202, 1211 (11th Cir.2009); United States v. May, 535 F.3d 912, 921 (8th Cir.2......
  • Goudy-Bachman v. United States Dep't of Health & Human Servs., Civil Action No. 1:10–CV–763.
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • September 13, 2011
    ...Notification Act before and after traveling in interstate commerce (upheld under Commerce Clause challenge in United States v. Shenandoah, 595 F.3d 151, 160 (3d Cir.2010); United States v. May, 535 F.3d 912, 921–22 (8th Cir.2008); United States v. Hinckley, 550 F.3d 926, 939–40 (10th Cir.20......
  • U.S. v. Johnson, No. 09–60823.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 4, 2011
    ...Eighth, and Tenth Circuits have held that private parties do not have standing to bring such claims. See United States v. Shenandoah, 595 F.3d 151, 161–62 (3d Cir.2010); United States v. Hacker, 565 F.3d 522, 526 (8th Cir.2009); Brooklyn Legal Servs. Corp. B. v. Legal Servs. Corp., 462 F.3d......
  • U.S. v. Fuller, Docket No. 09-1437-cr
    • United States
    • U.S. Court of Appeals — Second Circuit
    • November 30, 2010
    ...failure to register such that [the defendant] must know his failure to register violated federal law."); United States v. Shenandoah, 595 F.3d 151, 159 (3d Cir.2010) (same); United States v. Vasquez, 611 F.3d 325, 328-29 (7th Cir.2010) (same). Fuller has failed to identify any reason why th......
  • Request a trial to view additional results
1 books & journal articles
  • HEALTH CARE FRAUD
    • United States
    • American Criminal Law Review Nbr. 58-3, July 2021
    • July 1, 2021
    ...for defendant’s failure to provide federal agents with all f‌irearm transaction records in his possession); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir. 2010) (aff‌irming defendant’s conviction under § 1001 for failing to register as a sex offender), abrogated on other grounds by......

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