United States v. Cooper

• Decision Date: 10 April 2014
• Docket Number: No. 13–2324.,13–2324.
• Citation: 750 F.3d 263
• Parties: UNITED STATES of America v. Keith Allen COOPER, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

750 F.3d 263

UNITED STATES of America

v.Keith Allen COOPER, Appellant.

No. 13–2324.

United States Court of Appeals, Third Circuit.

Argued Jan. 8, 2014.

Filed: April 10, 2014.

Ilana H. Eisenstein, [argued], Edward J. McAndrew, Office of the United States Attorney, Wilmington, DE, Counsel for Appellee.

Edson A. Bostic, Daniel I. Siegel, [argued], Office of Federal Public Defender, Wilmington, DE, Counsel for Appellant.

Peter Goldberger, Ardmore, PA, Counsel for Amicus Appellant.

Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges.

OPINION

SMITH, Circuit Judge.

Keith Allen Cooper (“Cooper”) is a sex offender who was convicted of rape in Oklahoma and paroled prior to the enactmentof the Sex Offender Registration and Notification Act (“SORNA” or the “Act”), Pub.L. No. 109–248, 120 Stat. 587, 590–611 (2006) (codified primarily at 18 U.S.C. § 2250 & 42 U.S.C. § 16901 et seq.). After Congress enacted SORNA, Cooper was convicted of failing to comply with the sex offender registration requirements set forth in SORNA. In bringing this appeal, Cooper invokes the nondelegation doctrine, challenging the constitutionality of the provision of SORNA in which Congress delegated to the Attorney General the authority to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders.

We conclude that SORNA does not violate the nondelegation doctrine. Accordingly, we will affirm Cooper's conviction.

I

In 1999, Cooper was convicted in Oklahoma state court on three counts of rape in the first degree. Cooper was paroled in January 2006. As required by pre-SORNA law, he registered as a sex offender in Oklahoma on or around January 20, 2006.

In July 2006, Congress enacted SORNA, which requires sex offenders to comply with specific registration requirements and to update registration information in the event of a change of name, address, employment, or student status. Pursuant to the promulgation of an administrative rule on February 28, 2007, and subsequent issuance of a final rule, the Attorney General made SORNA's registration requirements applicable to individuals (such as Cooper) who were convicted of sex offenses prior to the enactment of SORNA.

In or around early 2011, Cooper moved from Oklahoma to Delaware. Although SORNA required Cooper to notify authorities of this change in residence, Cooper did not provide either Oklahoma or Delaware authorities with his updated residence information, nor did he separately register as a sex offender in Delaware after moving there.

In 2012, Cooper was arrested and charged with one count of failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a), in the United States District Court for the District of Delaware. On November 2, 2012, Cooper moved to dismiss the indictment on the basis that, inter alia, SORNA's delegation of authority to the Attorney General to determine the applicability of the Act's registration requirements to pre-SORNA sex offenders violates the nondelegation doctrine and thus is unconstitutional. The District Court denied Cooper's motion to dismiss.

Cooper pled guilty but reserved his right to appeal from the denial of the motion to dismiss. The District Court sentenced him to eighteen months' imprisonment, ten years of supervised release, and a special assessment of $100.00. Cooper then brought this timely appeal.

II

Congress enacted SORNA as Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109–248, §§ 101–155, 120 Stat. 587, 590–611 (2006). As set forth in the statute's declaration of purpose, Congress enacted SORNA “to protect the public from sex offenders and offenders against children” by “establish[ing] a comprehensive national system for the registration of [sex] offenders.” 42 U.S.C. § 16901. SORNA “reflects Congress' awareness that pre-Act registration law consisted of a patchwork of federal and 50 individual state registration systems.” Reynolds v. United States, –––U.S. ––––, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012). Thus, “[t]he SORNA reforms are generally designed to strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public, and to eliminate potential gaps and loopholes under the pre-existing standards by means of which sex offenders could attempt to evade registration requirements or the consequences of registration violations.” The National Guidelines for Sex Offender Registration and Notification, 72 Fed.Reg. 30210–01, 30210 (May 30, 2007).

SORNA specifies that all sex offenders “shall register, and keep the registration current,” in each state where the offender lives, works, or attends school. 42 U.S.C. § 16913(a). When an offender changes his name, residence, employment, or student status, within three business days the offender is required to appear in person in at least one jurisdiction where the offender lives, works, or is a student to notify that jurisdiction of the change in registration information. 42 U.S.C. § 16913(c). SORNA requires that the jurisdiction receiving this information immediately provide it to all other jurisdictions in which the offender is required to register in order to achieve a comprehensive national registry. Id.

Relevant to this appeal, SORNA makes it a federal crime for any person who is required to register, and who travels in interstate or foreign commerce, to knowingly fail to register or to update registration. 18 U.S.C. § 2250(a). ¹ Once a sex offender is subject to SORNA's registration requirements, that offender can be convicted under § 2250 if he thereafter engages in interstate or foreign travel and then fails to register. See Carr v. United States, 560 U.S. 438, 447, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010).

The statute defines “sex offender” to include individuals who were convicted of sex offenses prior to the enactment of SORNA. 42 U.S.C. § 16911(1) (defining “sex offender” as “an individual who was convicted of a sex offense”); see also Reynolds, 132 S.Ct. at 978 (noting that SORNA “defines the term ‘sex offender’ as including these pre-Act offenders”). However, SORNA does not set forth the registration procedures for pre-SORNA sex offenders. Instead, in 42 U.S.C. § 16913(d), Congress delegated to the United States Attorney General the authority to determine whether SORNA's registration requirements would apply retroactively to pre-SORNA sex offenders. Section 16913(d) provides:

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders....

42 U.S.C. § 16913(d).

On February 28, 2007, pursuant to the authority delegated to it by § 16913(d), the Attorney General issued an immediately effective rule establishing that “[t]he requirements [of SORNA] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of the Act.” Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894–01, 8897 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.3). The Attorney General subsequently issued proposed guidelines for the interpretation and implementation of SORNA on May 30, 2007, reiterating that SORNA's registration requirements apply retroactively to pre SORNA offenders. SeeThe National Guidelines for Sex Offender Registration and Notification, 72 Fed.Reg. 30210–01, 30212 (May 30, 2007). Additional rules, repeating that SORNA's registration requirements apply to pre-SORNA sex offenders, were promulgated on July 2, 2008. SeeThe National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38030–01, 38035–36 (July 2, 2008). The Attorney General subsequently issued a Final Rule, which became effective as of January 28, 2011. See Applicability of the Sex Offender Registration and Notification Act, 75 Fed.Reg. 81849–01 (Dec. 29, 2010).²

III

The District Court had original jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

We exercise plenary review over this challenge to the constitutionality of SORNA. United States v. Pendleton, 636 F.3d 78, 82 (3d Cir.2011).

IV

Cooper's sole argument on appeal is that his conviction should be vacated because Congress violated the nondelegation doctrine when it delegated its authority to the Attorney General to determine the applicability of SORNA's registration requirements to pre-SORNA sex offenders. See42 U.S.C. § 16913(d).

The nondelegation doctrine “is rooted in the principle of separation of powers that underlies our tripartite system of Government.” Mistretta v. United States, 488 U.S. 361, 371, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989). Article I, Section 1 of the Constitution provides: “All legislative powers herein granted shall be vested in a Congress of the United States.” U.S. Const. art. I, § 1. Thus, to safeguard the separation of powers enshrined in the Constitution, “ ‘the integrity and maintenance of the system of government ordained by the Constitution’ mandate that Congress generally cannot delegate its legislative power to another Branch.” Mistretta, 488 U.S. at 371–72, 109 S.Ct. 647 (quoting Field v. Clark, 143 U.S. 649, 692, 12 S.Ct. 495, 36 L.Ed. 294 (1892)).

Yet the history of the nondelegation doctrine reveals a wide gulf between the considerations rooted in the text of the Constitution and the jurisprudence that has since developed in the courts. In one of the first cases to give significant attention to the issue, Wayman v. Southard, 23 U.S. 1, 10 Wheat. 1, 6 L.Ed. 253 (1825), the Supreme Court considered a constitutional challenge to Congress' delegation to the judicial branch of authority to establish procedural rules for service of process and execution of judgments. Upholding the constitutionality of this...