United States v. Robbins

• Decision Date: 03 September 2013
• Docket Number: Docket No. 12–3148–cr.
• Citation: 729 F.3d 131
• Parties: UNITED STATES of America, Appellee, v. Nathan ROBBINS, aka Nathan L.H. Robbins, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

729 F.3d 131

UNITED STATES of America, Appellee,

v.Nathan ROBBINS, aka Nathan L.H. Robbins, Defendant–Appellant.

Docket No. 12–3148–cr.

United States Court of Appeals,Second Circuit.

Argued: June 20, 2013.

Decided: Sept. 3, 2013.

James P. Egan (Lisa A. Peebles, on the brief) Federal Public Defender's Office, Northern District of New York, Syracuse, N.Y., for Defendant–Appellant.

Brenda K. Sannes, Assistant United States Attorney (Lisa M. Fletcher, Assistant United States Attorney, on the brief), for Richard S. Hartunian, United States Attorney, Northern District of New York, Syracuse, N.Y., for Appellee.

Before: CALABRESI, CABRANES, and SACK, Circuit Judges.

CALABRESI, Circuit Judge:

In August 2011, after traveling from New York to Nevada, defendant-appellant Nathan Robbins knowingly failed to update his registration as a sex offender, as he was required to do under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16913. He subsequently pled guilty to violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required to register under SORNA to travel in interstate commerce and knowingly fail to update his registration. Despite his plea, Robbins retained the right to challenge the constitutionality of the statutes he admitted violating, and he brings just such a challenge here.

This Court has previously held that Congress acted within its powers under the Constitution's Commerce Clause when it enacted SORNA. See United States v. Guzman, 591 F.3d 83 (2d Cir.2010). Since then, however, the Supreme Court has revisited and further clarified—if that is the appropriate word—the reach of Congress's power “[t]o regulate Commerce ... among the several States.” U.S. Const. art. I, § 8, cl. 3; see Nat'l Fed'n of Indep. Bus. v. Sebelius, ––– U.S. ––––, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (“NFIB ”). Robbins invites us to revisit our holding in Guzman in light of the Supreme Court's decision in NFIB.

We decline Robbins' invitation not because his arguments all lack force, nor because the constitutionality of SORNA—particularly when applied within the states—is beyond question, see United States v. Kebodeaux, 570 U.S. ––––, ––––, 133 S.Ct. 2496, 2507, 186 L.Ed.2d 540, No. 12–418 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The fact of a prior federal conviction, by itself, does not give Congress a freestanding, independent, and perpetual interest in protecting the public from the convict's purely intrastate conduct.”), but because the constitutionality of SORNA as applied to Robbins remains unaffected by any limitations on Congress's Commerce Clause power that may be found in NFIB. Still bound by the precedent set in Guzman, we therefore AFFIRM Robbins' conviction.

BACKGROUND

A.

In July 2003, Robbins pled guilty to a state charge of sexual misconduct for having sex with a sixteen-year-old girl when he was twenty-four. New York designated Robbins a sexual offender, and Robbins complied with the resulting registration requirements until June 2011.

During that time, however, Robbins again ran afoul of the law. In October 2010, he was convicted and sentenced to probation for fourth degree grand larceny, second degree criminal contempt, and petit larceny. As a condition of his probation, Robbins was required to stay in a residence approved by his probation officer. But in August 2011, he tested positive for drug use and was evicted from the approved residence. A county court in New York issued a warrant on August 11 for Robbins' arrest for violation of the terms of his probation. On August 25, U.S. Marshals located Robbins at a casino in Las Vegas, Nevada. Robbins told the marshal who arrested him that he knew about his obligation to register as a sex offender, but had not done so because he knew that a warrant had been issued for his arrest.

Robbins was indicted in the Northern District of New York for having traveled in interstate commerce and knowingly failed to update his registration as required under SORNA. 18 U.S.C. § 2250(a); 42 U.S.C. § 16913. Robbins moved to dismiss the indictment, claiming that Congress lacked the constitutional authority to impose SORNA's requirements and penalties. On March 1, 2012, the district court (Norman A. Mordue, Judge ) denied Robbins' motion. Robbins subsequently pled guilty, though he reserved the right to appeal the district court's denial of his constitutional challenge. On July 26, 2012, the district court sentenced Robbins to 30 months' imprisonment—a term he is currently serving.

B.

SORNA, which was enacted in 2006, includes two provisions that are challenged in the present case.

First, the registration requirement of 42 U.S.C. § 16913 requires that a sex offender “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.” Id. § 16913(a). Designated sex offenders must update their registration “not later than 3 business days after each change of name, residence, employment, or student status” by appearing in person in one of the jurisdictions where they live, work, or study. Id. § 16913(c).

Second, SORNA's criminal enforcement provision, 18 U.S.C. § 2250(a), dictates that:

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.

Id.

We consider de novo the constitutionality of these statutory provisions. See United States v. Weingarten, 632 F.3d 60, 63–64 (2d Cir.2011).

DISCUSSION

Though Robbins disputes the continued validity of United States v. Guzman, no one denies that case's applicability to the present matter. In Guzman, this Court rejected constitutional challenges to §§ 2250(a) and 16913 brought by two defendants whose convictions mirror those of Robbins' in all relevant respects. We began in Guzman by recounting Congress's three categories of power under the Commerce Clause, as described by the Supreme Court in United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995):

(1) “[to] regulate the use of the channels of interstate commerce”; (2) “to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities”; and (3) “to regulate those activities having a substantial relation to interstate commerce.”

Guzman, 591 F.3d at 89 (quoting Lopez, 514 U.S. at 558–59, 115 S.Ct. 1624). This Court had little trouble concluding that § 2250(a), insofar as it ties criminal liability to interstate travel, falls under both the first and second of the Lopez categories, and thus constitutes a valid exercise of Congressional power.¹Id. at 90.

The registration requirement of § 16913 presented a somewhat closer question—indeed, the district court in Guzman found that since § 16913 requires initial registration and updates by state offenders who move within their state's borders, it exceeds Congress's Commerce Clause powers. This Court held, however, that § 16913 and § 2250(a) have to be considered in tandem, because the former gives the latter substance, while the latter gives the former teeth. Cf. id. at 90. The intrastate registration requirements of § 16913 are necessary and proper, we held, as they comprise “a perfectly logical way to help ensure that states will more effectively be able to track sex offenders when they do cross state lines.” Id. at 91.

Given this clear and recent precedent, there would seem to be nothing left to say in the case currently before us. But Robbins—recognizing that “if there has been an intervening Supreme Court decision that casts doubt on our controlling precedent, one panel of this Court may overrule a prior decision of another panel,” In re Zarnel, 619 F.3d 156, 168 (2d Cir.2010) (quotation marks omitted)—urges us to revisit Guzman in light of NFIB, the Supreme Court's fractured decision on the constitutionality of the Affordable Care Act. See NFIB, 132 S.Ct. 2566 (2012).

Robbins' is not the first challenge to an application of SORNA that this Court has considered since NFIB was decided. In United States v. Brunner, No. 11–2115, 726 F.3d 299, 2013 WL 4033847 (2d Cir. Aug. 9, 2013), we considered the application of SORNA to Kenneth Brunner, who had been convicted of a sex offense in violation of the Uniform Code of Military Justice (“U.C.M.J.”) and had thereafter failed to comply with SORNA's registration requirements. We upheld the judgment sentencing Brunner to six months' imprisonment pursuant to § 2250(a) under the Constitution's Military Regulation Clause and Necessary and Proper Clause. Id. at 303–04, 2013 WL 4033847, at *3–4. Interestingly, Brunner also argued that his sentence violated the Ex Post Facto Clause of the Constitution, and we concluded that his argument was “foreclosed by our Court's decision in United States v. Guzman ”—a conclusion that would appear to signal that Guzman remains good law—at least in part—even after NFIB. Id. at 304, 2013 WL 4033847, at *4. However, because Robbins' challenge to SORNA differs materially from the one brought by Brunner—who was convicted of a federal offense under the U.C.M.J. and had not travelled in interstate commerce, and whose conviction was upheld also on the basis of the Constitution's Military Regulation Clause—we consider it here.

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