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                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 14-10143
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 6:13-cr-00126-GAP-TBS-1


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus


LEE THOMAS RIVERS,
a.k.a. Lee Thomas Rivers, Jr.,
a.k.a. Lee Thomas River, Jr.,

                                                               Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (October 15, 2014)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Defendant Lee Thomas Rivers is a sex offender subject to the registration

requirements of the Sex Offender Registration and Notification Act (“SORNA”).

He appeals the district court’s denial of his motion to dismiss the charges against

him for failing to register and update his registration as required by SORNA, in

violation of 18 U.S.C. § 2250(a). Rivers argues that SORNA is unconstitutional

because it exceeds the scope of Congress’s commerce authority in light of the

Supreme Court’s decision in National Federation of Independent Buiness. v.

Sebelius, 567 U.S. ___, 

(2012) (“NFIB”), and because it violates

the Ex Post Facto Clause and the non-delegation doctrine. After careful review,

we affirm.

                                          I.

      The essential factual history is not disputed. Rivers was convicted in South

Carolina in 1991 of criminal sexual conduct with a minor and sentenced to 16

years’ incarceration. In December 2008, Rivers signed a sex-offender registration

form in South Carolina, acknowledging that if he moved to another state, he must

timely notify local authorities in South Carolina, register with the new state, and

abide by the new state’s reporting requirements. Rivers signed a similar form in

South Carolina in August 2009.

      In 2010, Rivers moved to Florida without updating his sex-offender

registration. He was arrested in Florida in October 2010 on a warrant out of South


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Carolina for failure to register as a sex offender and failure to appear on those

charges. Florida authorities compelled Rivers to register as a sex offender in

Florida at that time. The form that Rivers signed in Florida advised him that he

had up to 48 hours to report any changes of address to local authorities and that he

was required to update his registration twice a year for the rest of his life.

      In December 2010, Rivers returned to South Carolina, pled guilty to failing

to register as a sex offender, and was sentenced to thirty days in jail. Rivers signed

another sex-offender registration form in South Carolina in March 2012. This

form included additional language stating that if Rivers moved to another state

without updating his registration, he would be subject to federal prosecution under

18 U.S.C. § 2250.

      At some point in 2012, Rivers moved from South Carolina to Ocoee,

Florida. From Ocoee he moved to Winter Garden, Florida. He did not register in

Florida or update his registration in South Carolina to reflect the moves. Rivers

was arrested in April 2013 in Windermere, Florida, where he had been working.

After his arrest, Rivers admitted to knowing that he was required to register but

stated that he did not do so because he did not want his girlfriend to find out that he

was a sex offender.

      Rivers was charged in a federal indictment filed in the United States District

Court for the Middle District of Florida with traveling in interstate commerce to


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Florida from South Carolina and failing to keep his registration current under

SORNA, in violation of § 2250. He moved to dismiss the indictment, arguing that

the charges were improper because the Supreme Court’s decision in NFIB

effectively overruled this Court’s decision in United States v. Ambert, 

(11th Cir. 2009), which had upheld SORNA’s constitutionality against

various challenges, including that SORNA exceeded the scope of Congress’s

commerce authority. Rivers also raised challenges to SORNA under the Ex Post

Facto Clause, U.S. Const. art. I, § 9, cl. 3, and the non-delegation doctrine. The

district court denied the motion to dismiss.

      Soon thereafter, Rivers sought to enter a conditional plea of guilty that

would allow him to preserve the right to appeal the denial of his motion to dismiss.

The government would not consent, citing office policy, so Rivers proceeded to

trial before a jury and conceded his guilt. At the close of evidence, the district

court denied Rivers’s renewed motion to dismiss the indictment. The jury found

Rivers guilty. The district court imposed a sentence of imprisonment of one year

and one day to be followed by a ten-year term of supervised release. This appeal

followed.

                                         II.

      We generally review the denial of a motion to dismiss an indictment for an

abuse of discretion. United States v. Madera, 

, 854 (11th Cir. 2008).


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Where the district court’s determination rests on its resolution of questions of law,

though, as it does here, we review those questions of law de novo. 

contains two primary statutory sections applicable to this case.

Under 42 U.S.C. § 16913, a sex offender is required to register, and to keep

registration current, in each jurisdiction where the offender resides, works, or is a

student, and he must appear in person and provide the information required for the

sex-offender registry within three business days of a change of name, residence,

employment, or student status. 42 U.S.C. § 16913(a), (c). Section 2250 imposes

criminal liability on two categories of persons who knowingly fail to adhere to

SORNA’s registration requirements: any person who is a sex offender due to a

federal conviction, § 2250(a)(2)(A); and any other person required to register

under SORNA who travels in interstate or foreign commerce, § 2250(a)(2)(B).

Carr v. United States, 

, 451, 

, 2238 (2010).

      Congress delegated authority to the Attorney General to determine whether

SORNA and its registration requirements apply retroactively to offenders

convicted before SORNA’s enactment. 42 U.S.C. § 16913(d); 

(explaining that “Congress vested the Attorney General with sole

discretion to determine SORNA’s retroactivity”).         The Attorney General has

determined that SORNA’s requirements “apply to all sex offenders, including sex


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offenders convicted of the offense for which registration is required prior to the

enactment of that Act.” 28 C.F.R. § 72.3.

A.    Commerce Clause

      Rivers acknowledges our previous holding in Ambert that § 2250 is a valid

exercise of congressional power under the Commerce Clause, U.S. Const., Art. I,

§ 8. 

. Therefore, Rivers’s challenge is foreclosed unless

Ambert is no longer controlling, because we are bound by the holding of a prior

opinion unless the holding is overruled or undermined to the point of abrogation by

the Supreme Court or by this Court sitting en banc. See United States v. Kaley,

, 1255 (11th Cir. 2009). Rivers argues that Ambert was undermined

by the Supreme Court in NFIB. We disagree.

      In Ambert, we began by recounting Congress’s three categories of power

under the Commerce Clause, as delineated by the Supreme Court in United States

v. Lopez, 

, 

(1995):

            (1) “Congress may regulate the use of channels of
            interstate commerce”; (2) “Congress is empowered 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) “Congress’ commerce authority
            includes the power to regulate those activities having a
            substantial relation to interstate commerce, i.e., those
            activities that substantially affect interstate commerce.”




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(quoting 

, 115 S. Ct. at 1629-

30).

       We then explained that § 2250 is constitutional “because it regulates both

the use of channels of interstate commerce and the instrumentalities of interstate

commerce.” 

We observed that § 2250 regulates the channels of

interstate commerce because part of the commission of the offense for state sex

offenders like Rivers requires “travel in interstate commerce.” 

We

further noted that “when a sex offender travels from one state to another, he is an

instrumentality of interstate commerce.” 

these persons under

SORNA, we explained, Congress did no more than employ its “lawful commerce

power to prohibit the use of channels or instrumentalities of commerce for harmful

purposes.” 

held in Ambert that § 16913 of SORNA is “reasonably adapted to

the attainment of a legitimate end under the commerce clause.” 

We

found it “clear that SORNA was designed to create an interstate system to

counteract the danger posed by sex offenders who slip through the cracks or

exploit a weak state registration system by traveling or moving to another state

without registering therein.” The registration requirements under § 16913, we

held, are “necessary to track those offenders who move from jurisdiction to

jurisdiction.” 

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      Describing NFIB as “a particularly difficult opinion to decipher,” Rivers

nevertheless asserts that the decision has called into doubt the holding of Ambert.

NFIB is difficult because the discussion of the Commerce Clause in Part III-A of

the primary opinion, authored by Chief Justice Roberts, was not joined by any

other Justice and arguably was not necessary to the Court’s decision to uphold the

constitutionality of the Patient Protection and Affordable Care Act. See NFIB, 567

U.S. at ___, 132 S. Ct. at 2585-93. Therefore, the Chief Justice’s discussion of the

Commerce Clause may not be binding, but we need decide not that question at this

time. See United States v. Robbins, 

, 135 (2d Cir. 2013) (declining to

address this question in a challenge to SORNA). Even assuming that it is binding,

Rivers’s arguments on appeal are unavailing.

      Combining Chief Justice Roberts’s opinion in tandem with the jointly

authored dissent, Rivers derives five relevant propositions from NFIB that he says

limit Congress’s Commerce Clause authority in important respects. See NFIB, 567

U.S. at ___, 132 S. Ct. at 2642-50 (Scalia, Kennedy, Thomas, and Alito, JJ.,

dissenting). First, Rivers asserts, Congress cannot regulate inactivity or compel

individuals to engage in activity. Second, he continues, Congress cannot regulate

the current conduct of individuals based on predictions about their future conduct.

Third, Rivers suggests, the Necessary and Proper Clause, U.S. Const. art. 1, § 8, cl.

18, is not an independent source of authority, but can be used only to supplement


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an enumerated power. Fourth, Rivers contends, Congress has no authority “to

regulate individuals as such; it may only regulate activities.”           Finally, Rivers

concludes, a regulation cannot be upheld where accepting its constitutionality

would lead to “limitless regulatory authority.”

      According to Rivers, SORNA is unconstitutional because it compels

individuals to engage in activity: registration as a sex offender. Moreover, Rivers

asserts, that activity is purely intrastate and non-economic in nature, and it is not

connected to a comprehensive regulatory scheme of an interstate market, as in

Gonzales v. Raich, 

, 9, 

, 2201 (2005) (upholding

regulation of purely intrastate activities that are part of an economic class of

activities that have a substantial effect on interstate commerce). The broader

purpose of SORNA, Rivers states, is similarly non-economic in nature.

      Initially, we note that this case, like Ambert, concerns a defendant whose

conviction   under   SORNA       involves       “travel[]   in   interstate   commerce,”

§ 2250(a)(2)(B). We therefore do not reach the question of whether NFIB has

anything to say about a defendant who is a sex offender by reason of a federal

conviction, § 2250(a)(2)(A).     Proceeding with that limitation in mind, and

assuming without deciding the truth of Rivers’s assertions regarding what NFIB

held with respect to Congress’s commerce authority, we hold that we are bound by

Ambert’s holding notwithstanding NFIB.


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      The Supreme Court’s decision in NFIB does not undermine, or even appear

to say anything about, the bases of Ambert’s holding. Ambert held that § 2250(a)

was constitutional under the first two Lopez categories because it regulated the

channels and the instrumentalities of interstate commerce. 

NFIB,

on the other hand, addressed Lopez’s third category of permissible regulation under

the Commerce Clause—the regulation of activity that has a substantial relation to

or effect on interstate commerce. See NFIB, 567 U.S. at __, 132 S. Ct. at 2585-90.

The Court’s decision in Raich was similarly concerned with this third category of

regulation. See 

, 125 S. Ct. at 2205. Because NFIB did

not cast doubt on Congress’s ability to regulate the channels or instrumentalities of

interstate commerce, it is not “clearly on point” and does not “directly conflict”

with our decision in Ambert. See 

.

      Furthermore, SORNA “compels” registration from only those individuals

who have been previously convicted of a sexual offense. See United States v.

Cabrera-Gutierrez, 

, 1132 (9th Cir. 2014). In that sense, these

individuals have “opted in” to the group of persons whose activities are regulated

by SORNA, unlike the uninsured in NFIB. 

. Nor was

Rivers’s conviction in this case based solely on his inactivity.         Rather, the

registration requirement that Rivers knowingly failed to meet was triggered by

specific activity: travel across state lines. See 18 U.S.C. § 2250(a)(2)(B). Indeed,


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interstate travel is the focal point of SORNA’s regulations. See 

(“[A]n examination of § 16913 and § 2250 makes the interstate focus

abundantly clear.”). “As applied to [Rivers], then, §§ 16913 and 2250(a) not only

regulate activity, but activity that directly employs the channels of interstate

commerce.” 

; see also 

.

      In short, we held in Ambert that SORNA was a constitutionally valid

regulation of the channels and instrumentalities of interstate commerce. 

.      Nothing in the Supreme Court’s decision in NFIB

undermines the reasoning behind that settled precedent. Accordingly, at least as

applied to defendants like Rivers, we remain bound by Ambert’s holding that

SORNA is a valid exercise of Congress’s commerce authority.

B.    Ex Post Facto Clause and Non-Delegation Doctrine

      Rivers’s arguments under the Ex Post Facto Clause and the non-delegation

doctrine, which he raises solely to preserve the issues for further review, are

squarely foreclosed by this Court’s precedent, as he acknowledges. See 

, 1212-14. We therefore do not address them further.

                                       IV.

      In sum, we reaffirm our holding in Ambert that SORNA is a valid exercise

of Congress’s commerce authority as applied to state sex offenders like Rivers who

travel in interstate commerce.   Therefore, the district court did not abuse its


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discretion in denying Rivers’s motion to dismiss his indictment, and we affirm

Rivers’s conviction and sentence.

      AFFIRMED.




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