United States District Court, D. Nebraska
FINDINGS AND RECOMMENDATION
Michael D. Nelson, United States Magistrate Judge.
matter is before the Court on Defendant's Motion to
Dismiss the Indictment, which charges him with one count of
violating the Sex Offender Registration and Notification Act
(“SORNA”), 18 U.S.C. § 2250(a), for failing
to register as a sex offender in Nebraska. (Filing No.
26). Defendant asserts that the indictment must be
dismissed because Congress violated the nondelegation
doctrine by delegating to the Attorney General the authority
to apply SORNA to pre-Act offenders such as Defendant, and
that such issue is presently pending before the Supreme Court
of the United States in Gundy v. United States, 138
S.Ct. 1260 (2018). For the reasons explained below, the
undersigned recommends that the motion be denied, without a
about November 10, 1998, Defendant was convicted of attempted
sodomy in the first degree and sexual abuse in the first
degree in Oregon. Several years later, on July 27, 2006,
Congress passed SORNA, which imposes registration
requirements on sex offenders. SORNA provides the Attorney
general with “authority to specify the applicability of
the requirements of this subchapter to sex offenders
convicted before the enactment of this chapter or its
implementation in a particular jurisdiction, and to prescribe
rules for the registration of any such sex offenders and for
other categories of sex offenders who are unable to comply
with subsection (b).” 34 U.S.C § 20913(d). SORNA
also provides the Attorney General with authority to
“prescribe rules for the notification of sex offenders
who cannot be registered in accordance with
subsection.” 34 U.S.C § 20919(b). On February 28,
2007, the Attorney General issued an interim rule making it
“indisputably clear that SORNA applies to sex offenders
(as the Act defines that term) regardless of when they were
convicted.” Office of the Attorney General;
Applicability of the Sex Offender Registration
and Notification Act, 72 Fed. Reg. 8894, 8896 (2007).
argues that the indictment should be dismissed because
Supreme Court granted certiorari in Gundy v. United
States, 695 Fed.Appx. 639 (2d Cir. 2017), cert.
granted in part, 138 S.Ct. 1260 (Mar. 5, 2018) on the
issue of “[w]hether SORNA's delegation of authority
to the Attorney General to issue regulations under 42 U.S.C.
§ 16913(d) violates the nondelegation doctrine, ”
which is the same argument advanced by Defendant in this
case. Petition for Writ of Certiorari, Gundy v.
United States, 2017 WL 8132120 (U.S. Sept. 20, 2017).
The Supreme Court heard oral argument on October 2, 2018, and
has not yet issued a ruling.
Eighth Circuit Court of Appeals has explicitly addressed the
Attorney General's authority to determine SORNA's
applicability to sex offenders convicted before the Act's
enactment. See United States v. Fernandez, 710 F.3d
847 (8th Cir. 2013); United States v. Kuehl, 706
F.3d 917 (8th Cir. 2013). The Eighth Circuit concluded that
“SORNA's relatively narrow delegation of authority
to the Attorney General is guided by an intelligible
principle and is consistent with the requirements of the
nondelegation doctrine.” Fernandez, 710 F.3d
at 850 (citing Kuehl, 706 F.3d at 920). The Eighth
Circuit therefore upheld the constitutionality of SORNA as it
applies to pre-Act offenders.
the above Eighth Circuit precedent, this court must deny
Defendant's motion to dismiss. Although the Supreme Court
has granted certiorari on the same issue presented in this
case, the Supreme Court has not issued its
ruling. Therefore, this Court is bound to follow
the standing precedent of the Eighth Circuit. See
United States v. Knight , No. 8:17CR368, 2018 WL
1725009, at *1 (D. Neb. Apr. 6, 2018)(Smith Camp,
C.J.)(affirming magistrate judge's recommendation that a
defendant's motion to dismiss be denied on the same
grounds raised by Defendant in this case); United States
v. Keahl, No. 4:08CR3187, 2010 WL 2854469, *2 n.1 (D.
Neb. July 19, 2010)(“The court recognizes that the
United States Supreme Court granted certiorari . . . However,
without any contrary authority from the Supreme Court, the
court is bound by Eighth Circuit precedent”);
United States v. Swan, 327 F.Supp.2d 1068, 1071 (D.
Neb. 2004)(“Under principles of stare decisis,
decisions of the Eighth Circuit Court of Appeals have
precedential value and must be followed by the district
courts within the Eighth Circuit”). Given the Eighth
Circuit's binding precedent that SORNA does not violate
the nondelegation doctrine, the undersigned recommends that
Defendant's motion to dismiss be denied.
consideration, IT IS HEREBY RECOMMENDED to
United States District Court Judge Robert F. Rossiter, Jr.,
that Defendant's Motion to Dismiss Indictment (Filing
No. 26) be denied.
 And, the Supreme Court may ultimately
agree with the Eighth Circuit and its sister Circuits that
have held SORNA validly delegated authority to the Attorney
General. See Kuehl, 706 ...