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 (Filing No. 17). Defendant is charged
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. 1). 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 hearing.
about May 1, 2002, Defendant was convicted of first-degree
sexual conduct in the State of Minnesota. (Filing No. 18).
Thereafter, 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. Entity, No.
8:18CR236 (D. Neb. Nov. 8, 2018)(Rossiter, 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. 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.
17) be denied.
to NECrimR 59.2, any objection to this Findings and
Recommendation shall be filed with the Clerk of the Court
within fourteen (14) days after being served with a copy of
this Findings and Recommendation. Failure to timely object
may constitute a waiver of any such objection. The brief in
support of any objection shall be filed at the time of filing