                                                                      [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________                       FILED
                                                                    U.S. COURT OF APPEALS
                                    No. 08-12765                      ELEVENTH CIRCUIT
                                                                         MARCH 26, 2009
                                Non-Argument Calendar
                                                                       THOMAS K. KAHN
                              ________________________
                                                                            CLERK

                     D. C. Docket No. 08-00052-CR-ORL-31-KRS

UNITED STATES OF AMERICA,



                                                                        Plaintiff-Appellant,

                                           versus

TOMMY W. BUCKIUS,

                                                                       Defendant-Appellee.

                              ________________________

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

                                     (March 26, 2009)

Before BLACK and MARCUS, Circuit Judges, and QUIST,* District Judge.

PER CURIAM:

       *
       Honorable Gordon J. Quist, United States District Judge for the Western District of
Michigan, sitting by designation.
      Defendant Tommy W. Buckius was indicted for failing to register as required

by the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.

§ 16913, in violation of 18 U.S.C. § 2250(a). Buckius moved to dismiss the

indictment, and, after hearing argument, the district court declared 18 U.S.C. § 2250

facially unconstitutional, dismissed the indictment, and ordered Buckius released

“[f]or the reasons stated in this Court’s Order filed on April 18, 2008 in United

States v. Powers,” 544 F. Supp. 2d 1331 (M.D. Fla. 2008). On appeal, the

Government argues the district court erred in holding 18 U.S.C. § 2250(a) facially

unconstitutional as an invalid exercise of Congress’s Commerce Clause power.

Buckius argues, as an alternative ground to affirm, he cannot be prosecuted under

SORNA because his travel occurred prior to the Attorney General’s retroactivity

determination. We first address Buckius’s alternative argument regarding the

timing of his travel, then we address the constitutionality of SORNA issue.

                                          I.

      On March 5, 2008, a grand jury charged that Buckius “did knowingly fail to

register and update a registration” as required by SORNA between October 2006

and February 2008. The indictment alleges at some point in or about October 2006,

Buckius traveled from Ohio to Florida. Buckius argues he cannot be prosecuted




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under SORNA because his travel occurred prior to the Attorney General’s

retroactivity determination on February 28, 2007.

      In United States v. Dumont, __ F.3d __, No. 08-11187, 2009 WL 161864

(11th Cir. Jan. 26, 2009), the defendant was prosecuted after the Attorney General’s

retroactivity determination, and his indictment covered the period “from in or about

February 15, 2007, continuing through on or about May 16, 2007.” Id. at *2. We

concluded Dumont’s obligation to register arose on February 28, 2007, and Dumont

had three business days to fulfill this duty. Id.

      Dumont applies here. Buckius’s indictment covered the period through

February 2008, and his obligation to register arose on February 28, 2007. Buckius

failed to register within the following three business days, and was thus in violation

of § 2250 as of March 6, 2008. Accordingly, the district court’s dismissal cannot

be affirmed on this alternate ground.

                                           II.

      In United States v. Ambert, __ F.3d __, No. 08-13139, 2009 WL 564677

(11th Cir. March 6, 2009), this Court held both the registration provisions set forth

at 42 U.S.C. § 16913 and the failure to register offense set forth at 18 U.S.C.

§ 2250(a) do not violate the Commerce Clause. Id. at *8-9. We concluded § 2250

falls within Congress’s power to regulate “both the use of channels of interstate



                                            3
commerce and the instrumentalities of interstate commerce.” Id. at *8. We also

concluded “the requirement that sex offenders register under § 16913 is necessary

to track those offenders who move from jurisdiction to jurisdiction.” Id. at*10.

      Ambert controls here. The district court erred in dismissing the indictment

against Buckius on the ground that SORNA exceeded Congress’s authority under

the Commerce Clause. Accordingly, we vacate the order of the district court and

remand for reinstatement of the indictment.

      VACATED AND REMANDED.




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