United States v. Nichols

Decision Date15 April 2015
Docket NumberNo. 14–3041.,14–3041.
Citation784 F.3d 666 (Mem)
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Lester Ray NICHOLS, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

James A. Brown, Office of the United States Attorney, Topeka, KS, Jason W. Hart, Office of the United States Attorney, Wichita, KS, for PlaintiffAppellee.

Timothy J. Henry, Office of the Federal Public Defender, Wichita, KS, for DefendantAppellant.



This matter is before the court on the appellant's Petition for Rehearing En Banc.

We also have a response from the government. Upon consideration of the implicit request for panel rehearing contained in the petition, the request is denied by a majority of the original panel members.

The en banc petition was also transmitted to all of the judges of the court who are in regular active service. Upon review, a poll was called, and a majority of the active judges voted to deny the en banc suggestion. Consequently, that request is likewise denied. Judges Lucero, Gorsuch, Matheson and Moritz would grant the en banc petition.

Judges Lucero and Gorsuch have written separately in dissent from the denial of the petition.

LUCERO, Circuit Judge, dissenting from the denial of rehearing en banc.

I dissent from the denial of rehearing en banc because a recent Eighth Circuit decision creates a circuit split regarding the applicability of SORNA's notice provisions to offenders who leave the country. Compare United States v. Lunsford, 725 F.3d 859, 860 (8th Cir.2013), with United States v. Murphy, 664 F.3d 798, 799 (10th Cir.2011). I continue to hold the view that Murphy was incorrectly decided for the reasons stated in my dissent from that case. See id. at 804–08 (Lucero, J., dissenting). Correcting this circuit split is a matter of exceptional importance given the express purpose of Congress in enacting SORNA to remedy “a wide disparity among State registration requirements and notification obligations for sex offenders.” H.R.Rep. No. 109–218 (1), at 23 (2005).

The facts of Lunsford and this case illustrate why our current jurisprudence runs directly against the stated intent of Congress. In both cases, the appellants moved directly from the Kansas City metropolitan area to the Philippines. Lunsford had lived in the Missouri side of the metropolis and was not required to update his Missouri registration to reflect his move out of the country. Lunsford, 725 F.3d at 860. But Nichols, who had lived just across the river in Kansas, was brought back to the United States and sentenced to prison for failing to update his Kansas registration. United States v. Nichols, 775 F.3d 1225, 1227 (10th Cir.2014). We have simply replaced a “wide disparity among State registration requirements” with a wide disparity among Circuit registration requirements. In doing so, we thwart the intent of Congress and needlessly complicate an already complicated law.

Additionally, I agree with Judge Gorsuch that the Constitution demands something more than an “intelligible principle” when Congress delegates its power to define crimes to the executive branch agency charged with prosecuting those crimes. Moreover, I agree that it is questionable whether SORNA even includes an “intelligible principle” to guide the Attorney General's discretion to apply SORNA's provisions to pre-Act offenders. I would address this issue in en banc rehearing as well.

GORSUCH, Circuit Judge, dissenting from the denial of rehearing en banc.

A circuit split lingers here. First to approach the question, this circuit interpreted 42 U.S.C. § 16913 as requiring sex offenders to notify authorities if they plan to leave the country. United States v. Murphy, 664 F.3d 798, 801–02 (10th Cir.2011). In a later opinion the Eighth Circuit gave thoughtful consideration to this interpretation of the statute but came to the opposite view. United States v. Lunsford, 725 F.3d 859, 861–62 (8th Cir.2013) ; see also Murphy, 664 F.3d at 805 (Lucero, J., dissenting). In denying rehearing today to reconsider this court's position in light of Lunsford 's learning, we leave those who seek a resolution of the circuit split to travel other avenues. Murphy and Lunsford articulate both sides of the split admirably and there's no need for further amplification here, only resolution somewhere.

Beyond this matter of statutory interpretation, though, lies a constitutional question that deserves more notice. If the separation of powers means anything, it must mean that the prosecutor isn't allowed to define the crimes he gets to enforce. Yet, that's precisely the arrangement the Sex Offender Registration and Notification Act purports to allow in this case and a great many more like it. In § 16913(d), Congress left it to the Attorney General to decide whether and on what terms sex offenders convicted before the date of SORNA's enactment should be required to register their location or face another criminal conviction. So unusual is this delegation of legislative authority that to find an analogue you might have to look back to the time Congress asked the President to devise a code of “fair competition” for the poultry business—a delegation of legislative authority the Supreme Court unanimously rejected and Justice Cardozo called “unconfined and vagrant,” a “delegation running riot.” A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551, 553, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) (Cardozo, J., concurring). Even then you could be excused for thinking the delegation before us a good deal less cooped or caged than that one. After all, it doesn't just grant some alphabet soup agency the power to write rules about the chicken trade. It invests in the nation's chief prosecutor the authority to devise a criminal code governing a half-million people.

When it comes to sex offenders convicted after SORNA's enactment, the statute is exquisitely detailed. It divides those persons into three tiers based on the seriousness of their offense. 42 U.S.C. § 16911. It specifies which sex offenses place offenders in which tiers. Id. It requires tier I offenders to register their location for 15 years; tier II offenders to do so for 25 years; and tier III offenders to carry on registering for life. Id. § 16915. It explains what conditions merit reducing the registration period. Id. § 16915(b)(1). On and on it goes for 22 pages.

But none of this automatically applies to Mr. Lester Nichols and others convicted of sex offenses before the Act's passage. Instead, when it comes to past offenders, the Act says just this:

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 ... and to prescribe rules for registration of any such sex offender. 42 U.S.C. § 16913(d).

Yes, that's it.

As the government acknowledges, this language leaves the Attorney General free to do nothing: the law “does not require the Attorney General to act within a certain time frame or by a date certain; it does not require him to act at all.” Brief for the United States at 23–24, Reynolds v. United States, –––U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) (No. 10–6549). Alternatively, [u]nder his delegated authority in Subsection (d), the Attorney General could” require all past offenders to register or “require some but not all to register.” Id. at 24–25. Or, alternatively still, he could require those forced to register to “comply with some but not all of the registration requirements” applicable to future offenders in order to adapt the law as he thinks best for past offenders. Id. After all, the statute grants the Attorney General authority to specify the applicability not of the Act as a whole, one way or another, but to specify the applicability of each of the various “requirements” contained within the Act—and Congress well knew the difference. Compare 42 U.S.C. § 16912(b) (explaining that the Attorney General shall “interpret and implement this subchapter”), with id. § 16913(d) (providing the Attorney General authority “to specify the applicability of the requirements of this subchapter”). Even then, the Attorney General remains free to “change his mind at any given time or over the course of different administrations.” Brief for the United States, supra, at 23–24. Given all this, it's perhaps unsurprising how many circuits and commentators have observed that the degree of discretion invested in the Attorney General here is vast.1 It is so vast, in fact, that some (including the government itself) once suggested a narrower interpretation of § 16913(d) would make more sense of the statute. See id.; Reynolds, 132 S.Ct. at 986 (Scalia, J., dissenting).

A majority of the Supreme Court, however, carefully considered and rejected any alternative reading and made plain that, as a matter of statutory interpretation, SORNA's retroactive application hinges on the Attorney General. The Court explained that Congress chose this course as its solution for the many “problems” associated with trying “to apply [SORNA's] registration requirements to pre-Act offenders” who were at the time subject to a “patchwork of preexisting state systems.” Reynolds, 132 S.Ct. at 981. The power delegated to the Attorney General, the Court said, is sort of like a directive telling the Commissioner of Major League Baseball that he has “the authority to specify the applicability” of a stringent minor league drug testing policy to major league players: we should think that the minor league policy would not apply unless and until the Commissioner so specified” whether and how it should be applied to meet the needs of a similar but different league. Id. As written, the statute demonstrates Congress thought that past offenders could “warrant[ ] different federal registration treatment” than future offenders. Id....

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    • United States
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    ...bicameralism and presentment, the framers sought to make the task of lawmaking more arduous still. United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015) (Gorsuch, J., dissenting). While some may find the limitations on the Governor's power frustrating, particularly in the midst of a ......
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    ...bicameralism and presentment, the framers sought to make the task of lawmaking more arduous still. United States v. Nichols, 784 F.3d 666, 670 (10th Cir. 2015) (Gorsuch, J., dissenting). The "inefficiency" inherent in the legislative process " ‘serves a valuable’ liberty-preserving ‘functio......
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    ...of powers means anything, it must mean that the prosecutor isn't allowed to define the crimes he gets to enforce." United States v. Nichols , 784 F.3d 666, 668 (2015) (Gorsuch, J., dissenting from denial of rehearing en banc). He would hold delegations in the criminal context to a higher st......
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2 books & journal articles
  • Decoding Nondelegation After Gundy: What the Experience in State Courts Tells Us About What to Expect When We're Expecting
    • United States
    • Emory University School of Law Emory Law Journal No. 71-3, 2022
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