United States v. Wass

• Decision Date: 25 March 2020
• Docket Number: No. 18-4547,18-4547
• Citation: 954 F.3d 184
• Parties: UNITED STATES of America, Plaintiff - Appellant, v. Edward Jay WASS, Defendant - Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

954 F.3d 184

UNITED STATES of America, Plaintiff - Appellant,

v.Edward Jay WASS, Defendant - Appellee.

No. 18-4547

United States Court of Appeals, Fourth Circuit.

Argued: January 29, 2020

Decided: March 25, 2020

ARGUED: Jacob D. Pugh, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. G. Alan DuBois, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellee.

Before KEENAN, WYNN, and RUSHING, Circuit Judges.

Reversed and remanded by published opinion. Judge Wynn wrote the opinion, in which Judge Keenan and Judge Rushing joined.

WYNN, Circuit Judge:

Defendant Edward Wass was indicted in March 2018 for a violation of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250(a). The indictment alleged that between September 2016 and February 2018, Wass traveled interstate and knowingly failed to register as a sex offender as he was required to do pursuant to SORNA. The district court dismissed the indictment on the ground that SORNA is unconstitutional under the nondelegation doctrine and the ex post facto clause. The Government timely appealed.

Because binding precedent establishes that application of SORNA to Wass does not violate the nondelegation doctrine or the ex post facto clause, we reverse the dismissal of the indictment and remand for further proceedings.

I.

In 1995, Wass was convicted of two sexual offenses in Florida and sentenced to one year each of custody and community control as well as seven years of probation. His probation was revoked in 1998, after which he served another year in custody and an additional fifteen years of probation.¹ He completed his probation in 2014.

In July 2006—well after Wass’s sex-offense convictions had become final—Congress enacted SORNA. Sex Offender Registration and Notification Act, Pub. L. No. 109-248, 120 Stat. 587 (2006).² SORNA requires a sex offender—that is, "an individual who was convicted of a sex offense," 34 U.S.C. § 20911(1) —to "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. § 20913(a). The duration of the registration requirement depends on the severity of the underlying sex offense, id. § 20915(a), and whether the offender "maintains a clean record," id. § 20915(b)(1).

Under SORNA, Congress made failure to register a crime. 18 U.S.C. § 2250(a). Relevant here, that statute provides that "[w]hoever ... (1) is required to register under [SORNA]; ... [ (2) ] travels in interstate or foreign commerce ...; and (3) knowingly fails to register or update a registration as required by [SORNA]; shall be fined ... or imprisoned not more than 10 years, or both." Id.

In March 2018, a grand jury returned an indictment charging Wass under § 2250(a). Specifically, the indictment alleged that "[d]uring a period of time beginning at a date unknown, but no later than September 2016, and continuing through on or about February 27, 2018," Wass, "being required to register under [SORNA], and having traveled in interstate commerce, did knowingly fail to register as required by" SORNA. J.A. 6.³ The indictment did not specify where Wass allegedly traveled. On Wass’s motion, the district court dismissed the indictment, citing the nondelegation doctrine and the ex post facto clause. United States v. Wass , No. 7:18-CR-45-BO, 2018 WL 3341180, at *2–5 (E.D.N.C. July 6, 2018).

"We review a district court’s decision to grant a motion to dismiss an indictment de novo ." United States v. Saunders , 828 F.3d 198, 204 (4th Cir. 2016) (quoting United States v. Good , 326 F.3d 589, 591 (4th Cir. 2003) ). Upon de novo review, we reverse.

II.

The first issue before us is whether the district court correctly found that the application of SORNA to sex offenders, like Wass, whose offenses predate Congress’s enactment of SORNA ("pre-SORNA offenders"), violates the nondelegation doctrine because SORNA improperly delegated to the Attorney General the question of whether the statute would apply to pre-SORNA offenders.

"The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government." Gundy v. United States , ––– U.S. ––––, 139 S. Ct. 2116, 2121, 204 L.Ed.2d 522 (Kagan, J.) (plurality opinion), reh’g denied , ––– U.S. ––––, 140 S. Ct. 579, 205 L.Ed.2d 378 (2019) ; see also id. at 2123 (citing U.S. Const. art. I, § 1 ). But Congress "may confer substantial discretion on executive agencies to implement and enforce the laws" as long as it "has supplied an intelligible principle to guide the delegee’s use of discretion." Id. at 2123 (citing Mistretta v. United States , 488 U.S. 361, 372, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) ).

When Congress enacted SORNA, it authorized the Attorney General "to specify the applicability of the [registration] requirements ... to sex offenders convicted before ... [SORNA’s] enactment." 34 U.S.C. § 20913(d) ; see also Reynolds v. United States , 565 U.S. 432, 435, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012) (holding that SORNA’s "registration requirements do not apply to pre-[SORNA] offenders until the Attorney General specifies that they do apply"). Pursuant to this authority, the Attorney General issued regulations, finalized in 2011, applying SORNA’s requirements 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 (2011).

Wass argues that the nondelegation doctrine renders SORNA unconstitutional as applied to pre-SORNA offenders like himself. Specifically, he contends that § 20913(d) violates the nondelegation doctrine because he interprets the statute’s language granting the Attorney General "the authority to specify the applicability" of SORNA’s requirements to pre-SORNA offenders as meaning that Congress refused to decide the question of whether SORNA would apply at all to pre-SORNA offenders, instead punting that decision to the Attorney General. 34 U.S.C. § 20913(d). The district court understood § 20913(d) in the same way. See Wass , 2018 WL 3341180, at *1, *3 ("[SORNA] did not take a position on what to do with individuals who had been convicted of a registrable sex offense prior to the law’s passage. Instead, Congress made that responsibility the Attorney General’s. ... The Attorney General ... was granted the freedom to apply SORNA to all pre-[SORNA] offenders, to draw distinctions between various groups based on no particular congressional mandate, or to not apply SORNA at all.").

But the Supreme Court disagrees: "This Court has already interpreted § 20913(d) to say something different—to require the Attorney General to apply SORNA to all pre-[SORNA] offenders as soon as feasible." Gundy , 139 S. Ct. at 2123 (Kagan, J.) (plurality opinion) (emphasis added) (citing Reynolds , 565 U.S. at 442–43, 132 S.Ct. 975 ). Thus, the "Attorney General’s discretion extends only to considering and addressing feasibility issues." Id. at 2124. That is, Congress intended to give the Attorney General "the time needed (if any) to address the various implementation issues involved in getting pre-[SORNA] offenders into the registration system." Id. at 2128. The plurality in Gundy concluded that such "delegation easily passes constitutional muster." Id. at 2121.

Wass argues that Gundy is not determinative because it was a split (4-1-3) opinion. See Response Br. at 8.⁴ We cannot agree.

"It is well established ... that when a decision of the Court lacks a majority opinion, the opinion of the Justices concurring in the judgment on the ‘narrowest grounds’ is to be regarded as the Court’s holding." A.T. Massey Coal Co. v. Massanari , 305 F.3d 226, 236 (4th Cir. 2002) (quoting Marks v. United States , 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977) ). Three Justices joined Justice Kagan in her plurality opinion in Gundy , and Justice Alito concurred in the judgment, writing:

If a majority of this Court were willing to reconsider the approach we have taken [to the nondelegation doctrine] for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.

Because I cannot say that [SORNA] lacks a discernable standard that is adequate under the approach this Court has taken for many years, I vote to affirm.

Gundy , 139 S. Ct. at 2131 (Alito, J., concurring). Thus, "the narrowest common ground that five Justices stood upon in Gundy is that the SORNA delegation did not violate long-standing delegation doctrine analysis." United States v. Glenn , 786 F. App'x 410, 411–12 (4th Cir. 2019) (per curiam). Accordingly, we hold that Wass’s argument is precluded by Gundy .

III.

As to the second issue, Wass’s ex post facto arguments fare no better. The Constitution forbids Congress or the states from passing any ex post facto law. See U.S. Const. art. I, § 9, cl. 3 ; id. § 10, cl. 1. An ex post facto law is one that "imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed." Weaver v. Graham , 450 U.S. 24, 28, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (quoting Cummings v. Missouri , 71 U.S. (4 Wall.) 277, 325–326, 18 L.Ed. 356 (1866) ), limited on other grounds by Cal. Dep’t of Corr. v. Morales , 514 U.S. 499, 506 n.3, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995). The Constitution’s prohibition on ex post facto laws "ensures that individuals have fair warning of applicable laws and guards against vindictive legislative action." Peugh v. United States , 569 U.S. 530, 544, 133...