United States v. Richardson
Decision Date | 19 June 2014 |
Docket Number | No. 11–10346.,11–10346. |
Citation | 754 F.3d 1143 |
Parties | UNITED STATES of America, Plaintiff–Appellee, v. Justin Allan RICHARDSON, Defendant–Appellant. |
Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Dan C. Maloney (argued), Research & Writing Attorney, Ramon Acosta, Assistant Federal Public Defender, Renee L. Valladares, Federal Public Defender, Reno, NV, for Defendant–Appellant.
Elizabeth A. Olson (argued), Assistant United States Attorney, Robert L. Ellman, Appellate Chief, Daniel G. Bogden, United States Attorney, District of Nevada, Reno, NV, for Plaintiff–Appellee.
Appeal from the United States District Court for the District of Nevada, Edward C. Reed, Jr., Senior District Judge, Presiding. D.C. No. 3:10–cr–00087–ECR–VPC–1.
Before: STEPHEN REINHARDT and MARY H. MURGUIA, Circuit Judges, and DAVID A. EZRA, District Judge.*
Justin Allan Richardson appeals his conviction and sentence for violating the registration requirements of the Sex Offender Registration and Notification Act (“SORNA”). He raises several constitutional challenges to SORNA and argues that the district court erred in calculating his criminal history. We affirm.1
In 1994, Richardson was convicted of lewd and lascivious acts with a child in a California state court and ordered to register as a sex offender. On July 21, 2010, a federal grand jury indicted Richardson for failing to register as a sex offender as required by SORNA. Richardson moved to dismiss the indictment, arguing that SORNA is unconstitutional because it violates the non-delegation doctrine, the Tenth Amendment, the Commerce Clause, and the Ex Post Facto Clause. The district court denied Richardson's motion, and he subsequently pled guilty to the single-count indictment without a plea agreement. However, Richardson objected to the Presentence Investigation Report's assessment of one criminal history point for a 2000 misdemeanor conviction that resulted in a sentence of time served. Richardson argued that he was not represented by counsel during that proceeding. The district court overruled his objection and sentenced him to twenty-seven months' imprisonment. Richardson appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Richardson argues that SORNA is unconstitutional on the grounds that it violates the non-delegation doctrine, the Tenth Amendment, the Commerce Clause, and the Ex Post Facto Clause. We reject each of these arguments.
Richardson argues that SORNA's provisions allowing the Attorney General to determine the applicability of its registration requirements to pre-SORNA sex offenders violate the non-delegation doctrine, which prohibits Congress from “delegat[ing] its legislative power to another branch of government.” Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Three years ago, we summarized the origins, history, and requirements of the non-delegation doctrine:
The Supreme Court has only twice invalidated legislation under this doctrine, the last time being seventy-five years ago. Article I, § 1 of the Constitution provides that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” In practice, of course, Congress delegates authority frequently. The relevant question is how, when, and under what circumstances Congress may delegate its authority. The Supreme Court's answer: “[W]hen Congress confers decisionmaking authority upon agencies Congress must lay down by legislative act an intelligible principle to which the person or body authorized to act is directed to conform.” Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 472, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (emphasis and internal quotation marks omitted). “Only if [a court] could say that there is an absence of standards for the guidance of the Administrator's action, so that it would be impossible in a proper proceeding to ascertain whether the will of Congress has been obeyed, would [it] be justified in overriding its choice of means for effecting its declared purpose....” Yakus v. United States, 321 U.S. 414, 426, 64 S.Ct. 660, 88 L.Ed. 834 (1944). In applying the intelligible principle test to congressional delegations, the Supreme Court “has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” Mistretta [v. United States, 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ].
Hepting v. AT & T Corp. (In re Nat'l Sec. Agency Telecommunications Records Litig.), 671 F.3d 881, 895–96 (9th Cir.2011) (alterations in original).
Richardson's specific contention is that Congress violated the non-delegation 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). Every court of appeals to have considered the question has concluded that Congress did not violate the Constitution when it delegated this implementation authority to the Attorney General. See, e.g., United States v. Cooper, 750 F.3d 263, 271 (3d Cir.2014) () ; United States v. Goodwin, 717 F.3d 511, 516 (7th Cir.2013) (); United States v. Whaley, 577 F.3d 254, 263–64 (5th Cir.2009) .2 We are persuaded by the reasoningof our colleagues in these other circuits and adopt it as our own. Accordingly, we hold that SORNA's delegation of authority to the Attorney General to determine the applicability of SORNA's registration requirements to pre-SORNA sex offenders is consistent with the requirements of the non-delegation doctrine.
Richardson next argues that SORNA violates the Tenth Amendment. He contends that SORNA unlawfully forces states and state officials to create sex offender registries that meet federal standards and to comply with SORNA's many other complex and onerous requirements. In other words, he argues that SORNA violates the Tenth Amendment's anti-commandeering principle. See generally Printz v. United States, 521 U.S. 898, 935, 117 S.Ct. 2365, 138 L.Ed.2d 914 (1997).
Again, we join every other court of appeals that has considered the question in holding that SORNA does not violate the Tenth Amendment's anti-commandeering principle and adopt the other circuits' reasoning for doing so. See United States v. Felts, 674 F.3d 599, 606–08 (6th Cir.2012); United States v. Johnson, 632 F.3d 912, 920 (5th Cir.2011); Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir.2010). SORNA does not compel states or state officials to comply with its requirements; rather, Congress engaged in a constitutionally valid exercise of its spending power by conditioning the receipt of certain federal funds on the implementation of SORNA. See42 U.S.C. §§ 16924, 16925(a); Felts, 674 F.3d at 608 () ; Johnson, 632 F.3d at 920 ( ; Kennedy, 612 F.3d at 269 (). Accordingly, Richardson's Tenth Amendment challenge fails.
Finally, Richardson argues that SORNA's registration requirements violate the Commerce Clause and...
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