McHUGH, Circuit Judge.
Lester Nichols is a convicted sex offender who left the United States without updating his status on the federal sex offender registry. He was brought back to the United States and charged with failing to register, in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). On appeal, he challenges his conviction based on two theories: (1) SORNA's updating requirement does not apply in situations like his where the sex offender moves from a SORNA jurisdiction to a non-SORNA jurisdiction, and (2) SORNA's delegation of authority to the Attorney General to determine SORNA's retroactive application is unconstitutional. We reject both arguments and therefore affirm Mr. Nichols's conviction.
In 2003, Mr. Nichols was convicted of traveling interstate with the intent to engage in sex with a minor, in violation of 18 U.S.C. § 2423(b). He was sentenced to 120 months imprisonment. Although Mr. Nichols's conviction occurred before SORNA's 2006 enactment, the U.S. Attorney General issued a rule in 2007 extending the requirements of SORNA "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 28 C.F.R. § 72.3. This rule was issued pursuant to the authority Congress delegated to the Attorney General under SORNA. See 42 U.S.C. § 16913(d) ("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...."). Mr. Nichols, as a preenactment sex offender, is thus required to comply with SORNA's registration requirements.
By 2012, Mr. Nichols had been released from prison and was placed under federal supervision in the District of Kansas. Up until that time, he had complied with both the Kansas and SORNA sex offender registration requirements. In November 2012, Mr. Nichols took a plane from Kansas City to Manila, Philippines, without updating his sex offender registry. One month later, he was arrested by Philippine law enforcement officers and was turned over to State Department custody for deportation to the United States. Mr. Nichols was charged with and indicted for one count of failure to update a registration as required by SORNA. See 18 U.S.C. § 2250(a).
The district court rejected Mr. Nichols's first argument in light of United States v. Murphy, 664 F.3d 798 (10th Cir. 2011), where we held that a defendant violated SORNA when he moved from Utah to Belize without updating his status on the sex offender registry. The district court also rejected Mr. Nichols's nondelegation argument. The court acknowledged the lack of binding Tenth Circuit precedent addressing this issue, but noted our observation in dicta that SORNA's registration provision does not violate the nondelegation doctrine. United States v. Carel, 668 F.3d 1211, 1214 (10th Cir.2011). The district court also looked to United States v. Rickett, 535 Fed.Appx. 668 (10th Cir.2013) (unpublished), wherein we rejected a nondelegation argument under plain error review because, absent controlling precedent, application of SORNA to a preenactment offender was not plainly unconstitutional. Finally, the district court explained that the clear weight of authority from other circuits has rejected nondelegation challenges to 42 U.S.C. § 16913(d). Accordingly, the district court ruled SORNA's delegation of authority under § 16913(d) is not unconstitutional and denied Mr. Nichols's motion to dismiss. Mr. Nichols thereafter entered a conditional guilty plea, reserving the right to appeal both issues. He now does so and we exercise our jurisdiction under 28 U.S.C. § 1291.
Mr. Nichols appeals both elements of the district court ruling. He first contends SORNA's requirement that an offender keep his registration current does not apply to offenders who change their residence to a non-SORNA jurisdiction. In so arguing, he asks us to overturn our precedent in United States v. Murphy, wherein we held, "a sex offender, upon changing his residence, [must] update his registration in a jurisdiction involved ... even if he did not establish a new residence in a SORNA jurisdiction." 664 F.3d 798, 803 (10th Cir.2011). Mr. Nichols alternatively argues we should vacate his conviction on the basis that 42 U.S.C. § 16913(d) creates an unconstitutional delegation of authority by permitting the Attorney General to determine SORNA's application to preenactment sex offenders. These issues "involve statutory interpretations of and constitutional challenges to SORNA," which we review de novo, "interpreting the words of the statute in light of the purposes Congress sought to serve." United States v. Hinckley, 550 F.3d 926, 928 (10th Cir.2008) (brackets and internal quotation marks omitted), abrogated on other grounds by Reynolds v. Unites States, ___ U.S. ___, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012).
SORNA requires sex offenders 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." 42 U.S.C. § 16913(a). SORNA defines "jurisdiction" as including U.S. states, territories, and Indian reservations, but not foreign nations. Id. § 16911(10). It defines "resides" as "the location of the individual's
We squarely addressed this issue in United States v. Murphy, 664 F.3d 798 (10th Cir.2011). The defendant in Murphy was a registered sex offender who had resided in a correctional facility in Utah, departed from Utah by bus, arrived in California, then took a taxi to Mexico, and ultimately ended up in Belize where he lived for six months. Id. at 799-800. Mr. Murphy was deported to the United States and was charged with and convicted of failing to update his sex offender registry, in violation of 18 U.S.C. § 2250(a). Id. at 800. On appeal, Mr. Murphy challenged his conviction on the basis that he had no obligation to update his registration after he left a SORNA jurisdiction for a non-SORNA jurisdiction. Id.
We affirmed Mr. Murphy's conviction, interpreting SORNA otherwise. We interpreted the phrase "jurisdiction where the offender resides" from § 16913(a) and term "residence" as used in § 16913(c) as two different concepts — the former meaning "the state where the individual keeps his home or habitually lives" and the latter meaning "a specific dwelling place ... where an offender habitually lives." Id. at 800-801. And we concluded the two terms trigger different obligations: "the offender's jurisdiction is where he must keep his registration current, while the offender's residence is a specific piece of registry information, a change of which sparks a reporting duty." Id. at 801.
From this interpretation, we drew three conclusions. First, "abandoning one's living place constitutes a change in residence under SORNA." Id. Second, "[w]hen an offender leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved." Id. at 803. And third, "a reporting obligation does not disappear simply because an individual manages to relocate to a non-SORNA jurisdiction before the three-day deadline for updating a registration has passed." Id. Applying this interpretation to Mr. Murphy's case, we ruled, "a legal obligation to update his registration attached" when Mr. Murphy left the correctional facility "while he was still in Utah, and not when he arrived in Belize." Id. at 804. And even though Mr. Murphy "was no longer living in Utah when his failure to register became punishable" (i.e., three days after his change of residence), "Utah remained a `jurisdiction involved' under SORNA because it was his current jurisdiction when the reporting obligation arose." Id. We therefore affirmed his conviction for failure to register under § 2250(a).
Earlier this year we reaffirmed Murphy's interpretation of SORNA. United States v. Lewis, 768 F.3d 1086, 1091-92 (10th Cir.2014). We explained in Lewis that "Murphy's logic [is] controlling" and concluded, "The effect of Murphy's holding is that the abandonment of a permanent
Mr. Nichols contends that Murphy misinterpreted SORNA and we should therefore overturn it. In so arguing, Mr. Nichols relies primarily on three sources: (1) Judge Lucero's dissenting opinion in Murphy, 664 F.3d at 806, which asserted that the majority "impermissibly rejects the statutory definition of `resides'.... [and] avoids a plain text reading of the statute by giving two different meanings to the defined term `resides'"; (2) the Eighth Circuit's opinion in United States v. Lunsford, 725 F.3d 859, 862 (8th Cir.2013), which disagreed with Murphy's interpretation of SORNA; and (3) the U.S. Supreme Court's decision in Carr v. United States, 560 U.S. 438, 447-49, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010), which looked to the plain language of § 2250 and concluded Congress's use of present tense verbs "strongly supports a forward-looking construction" and therefore the elements of § 2250 must be met sequentially for a violation to occur.
Regardless of the merits of these arguments, we are bound by the majority opinion in Murphy. Indeed, one panel of this court cannot overrule the judgment of another panel "absent en banc consideration... [or] an intervening Supreme Court decision that is contrary to or invalidates our previous analysis." United States v. Brooks, 751 F.3d 1204, 1209 (10th Cir.2014) (internal quotation marks omitted). Neither exception to our horizontal stare decisis rule is present here. Mr. Nichols attempts to characterize Carr as the type of contrary Supreme Court authority that would invalidate Murphy. But Carr was decided before Murphy and is therefore not an intervening decision. And although Mr. Nichols correctly notes that Murphy did not address the Supreme Court's Carr decision, our later Lewis decision did, ruling that Carr "does not dictate an alternative conclusion" to the conclusion reached in Murphy. 768 F.3d at 1091 n. 4. Murphy is therefore controlling.
Applying Murphy's interpretation of SORNA to this case, we affirm Mr. Nichols's conviction under § 2250(a). By boarding the plane to the Philippines, Mr. Nichols abandoned his residence in Kansas — a "jurisdiction involved." This change in residence triggered a registry obligation in Kansas, which Mr. Nichols did not fulfill. Mr. Nichols therefore violated § 2250(a) by failing to update his registry in Kansas within three days of his change in residence.
Mr. Nichols alternatively argues we should vacate his SORNA conviction on the basis that SORNA's delegation of authority to the Attorney General to determine SORNA's preenactment application, 42 U.S.C. § 16913(d), is unconstitutional. Mr. Nichols insists that in applying the nondelegation doctrine to this case, we should apply a heightened "meaningful constraint" standard, instead of the more lenient "intelligible principles" standard, because Congress delegated authority under SORNA that relates to the imposition of criminal liability. We disagree both as to the relevant legal standard and the application of that standard and conclude that § 16913(d) does not violate the non-delegation doctrine.
Under the U.S. Constitution, "[a]ll legislative Powers herein granted shall be vested in a Congress of the United States." U.S. CONST., art. I, § 1. From this language and based on separation of powers
Applying this standard to SORNA, we concluded that § 16913(d) does not violate the nondelegation doctrine. The language of SORNA demonstrates, first, that Congress clearly delineated the general policy upon which SORNA is based. Section 16901 expresses the congressional policy embodied in SORNA: "to protect the public from sex offenders and offenders against children" by establishing "a comprehensive national system for the registration of those offenders." This policy statement conveys the intelligible principles upon which the Attorney General's delegated authority must be based. See United States v. Kuehl, 706 F.3d 917, 920 (8th Cir.2013) (concluding that SORNA's broad policy statement contained in § 16901 is "sufficient to provide an intelligible principle for delegation"); United States v. Goodwin, 717 F.3d 511, 516 (7th Cir.2013) (explaining that § 16901 "provides sufficient guidance to the Attorney General").
Second, Congress clearly delineated "the public agency which is to apply" the authority by specifying the Attorney General as the executive official to whom it delegated authority under SORNA.
Third, Congress also clearly delineated the boundaries of the authority it delegated to the Attorney General. Section 16913(d) delegates to the Attorney General a single, narrow decision: to determine SORNA's application to preenactment sex offenders. Under this delegation, "the Attorney General cannot do much more
Accordingly, we hold that § 16913(d) meets the Supreme Court's intelligible principles test because Congress clearly delineated SORNA's general policy, the public agency to which Congress delegated its authority, and the boundaries of this delegation. See Mistretta, 488 U.S. at 372-73, 109 S.Ct. 647.
Mr. Nichols asserts, however, that we should apply the more rigorous "meaningfully constrains" standard instead of the "intelligible principle" standard because § 16913(d) delegates Congress's authority to regulate a statute with criminal consequences. In so arguing, Mr. Nichols relies on Touby v. United States, in which the Supreme Court acknowledged the possibility that "something more than an `intelligible principle' is required when Congress authorizes another Branch to promulgate regulations that contemplate criminal sanctions," but declined to resolve the issue because, even under a more stringent standard, the provision at issue in Touby "meaningfully constrains the Attorney General's discretion to define criminal conduct." 500 U.S. 160, 165-66, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991). Mr. Nichols contends that this case is the appropriate vehicle to institute the more searching "meaningfully constrains" standard, and that § 16913(d) fails under that standard.
The Third Circuit recently confronted this issue in Cooper, 750 F.3d at 270-71. The Cooper court recognized the Supreme Court left open the question whether a heightened "meaningfully constrains" standard applies to Congress's delegation of authority involving statutes with criminal implications. Id. at 271. But as the Third Circuit further explained, the meaningful constraints standard "has been referenced in only a handful of cases, none of which set forth factors or a substantive analytical framework against which to assess whether a specific delegation satisfies the standard." Id. The Third Circuit therefore refused to invoke the meaningfully constrains standard "[u]ntil the Supreme Court gives us clear guidance to the contrary." Id. We likewise decline to abandon the well-settled "intelligible principle" standard for the undeveloped "meaningfully constrains" standard. And because Congress provided an intelligible principle to which the Attorney General must conform in exercising the authority delegated under § 16913(d), we join our sister circuits
For these reasons, we AFFIRM Mr. Nichols's conviction for failure to register in violation of 18 U.S.C. § 2250(a).
McKAY, Circuit Judge, concurring.
I concur with the panel's opinion with regard to the nondelegation doctrine question. I also concur that, under these facts, our decision in United States v. Murphy, 664 F.3d 798 (10th Cir.2011), binds us with regard to the application of SORNA, and compels this court to determine that Kansas remained a "jurisdiction involved" under the Act even after Mr. Nichols abandoned his residence there. I write separately to express disagreement with the majority in Murphy, agreement with the dissent in Murphy by Judge Lucero, and my belief that consideration of this case by the full en banc court would be appropriate.
Judge Lucero's interpretation of SORNA's registration requirements accords with that of the Eighth Circuit in United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013). Lunsford held that an individual who abandons a residence in a jurisdiction covered by SORNA to move to a jurisdiction not covered by SORNA no longer resides in a "jurisdiction involved" under the Act and therefore has no obligation to register. Id. at 861. I am persuaded by this reading of SORNA's plain language, however, the majority opinion in Murphy currently controls this case, and I accordingly concur.