                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            April 8, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,
                                                            No. 14-7057
v.                                                (D.C. No. 6:13-CR-00081-JHP-1)
                                                         (E.D. Oklahoma)
DARRELL EDWARD LYNCH, JR.,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.
                  _________________________________



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

submitted without oral argument.

                                I. INTRODUCTION

      Darrell Edward Lynch, Jr., is a convicted sex offender who failed to keep his

registration current both while living in Oklahoma and after he moved to Texas. He

entered a conditional guilty plea, admitting that he violated the Sex Offender

      *
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), but reserving four

issues for appeal. Specifically, Mr. Lynch challenges his conviction on the grounds

that SORNA violates the Commerce Clause, the Tenth Amendment, and the Ex Post

Facto Clause of the U.S. Constitution, as well as the nondelegation doctrine.

Consistent with our recent precedent, we hold that SORNA is the product of a valid

exercise of Congress’s Commerce Clause power and that it does not violate the Tenth

Amendment, Ex Post Facto Clause, or the nondelegation doctrine. We therefore

affirm Mr. Lynch’s conviction.

                                 II. BACKGROUND

      Mr. Lynch pleaded guilty on March 15, 1996, in Texas to committing an

aggravated sexual assault on a child under the age of fourteen. On July 27, 2006,

Congress passed the Sex Offender Registration and Notification Act (SORNA). On

February 28, 2007, the U.S. Attorney General issued a rule 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. Thus, although Mr. Lynch committed his sex offense before SORNA

was enacted, he is required to comply with its registration requirements.

      After Mr. Lynch was released from prison in 2002, he lived in Florida for a

number of years and then moved to Oklahoma. Mr. Lynch failed to update his sex

offender registration to reflect his move to Oklahoma. When Mr. Lynch later moved

to Texas, he again failed to update his sex offender registration. Mr. Lynch was

subsequently indicted on one count of failing to register as a sex offender in violation

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of 18 U.S.C. § 2250(a)(1), (a)(2)(B), and (a)(3). Mr. Lynch moved to dismiss the

indictment on the same grounds he now asserts on appeal. The district court denied

Mr. Lynch’s motion to dismiss, and Mr. Lynch then entered a conditional guilty plea.

Mr. Lynch now appeals from his conviction.

                                  III. DISCUSSION

      Mr. Lynch has made four constitutional arguments on appeal: that SORNA

violates the Commerce Clause, the Tenth Amendment, the Ex Post Facto Clause, and

the nondelegation doctrine. We review the district court’s denial of Mr. Lynch’s

motion to dismiss the indictment on constitutional grounds de novo. See United

States v. Brune, 767 F.3d 1009, 1015 (10th Cir. 2014). “As a part of our de novo

review, however, we must presume that the statute is constitutional.” Id. (internal

quotation marks omitted). We may “invalidate a congressional enactment only upon a

plain showing that Congress has exceeded its constitutional bounds.” United States v.

Morrison, 529 U.S. 598, 607 (2000).

      Mr. Lynch first claims SORNA violates the Commerce Clause by regulating

inactivity. Although Mr. Lynch acknowledges that we rejected a Commerce Clause

challenge to SORNA in United States v. Hinckley, 550 F.3d 926, 939–40 (10th Cir.

2008), abrogated on other grounds by Reynolds v. United States, 132 S. Ct. 975

(2012), he argues our decision has been superseded by the Supreme Court’s decision

in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012)

(NFIB). After Mr. Lynch filed this appeal, we addressed NFIB’s effect on our

Commerce Clause analysis in Hinckley. In United States v. White, we held that

                                              3
nothing in NFIB undermines our conclusion that SORNA is a permissible exercise of

Congress’s Commerce Clause power to regulate the channels of interstate commerce

and the persons or things in interstate commerce. No. 14-7031, slip. op. at 6–13 (10th

Cir. Apr. 6, 2015). For the reasons stated in White, we reject Mr. Lynch’s claim that

Congress exceeded its Commerce Clause power when it enacted SORNA.

      Second, Mr. Lynch claims SORNA violates the Tenth Amendment by

directing state officials to implement a federally mandated sex offender registry. We

also addressed this argument in White, holding that SORNA does not violate the

Tenth Amendment. Id. at 14–17. There, we declined to make the same inference Mr.

Lynch asks us to draw here: that, simply because Oklahoma has not substantially

implemented SORNA and there is no federally run system for registering sex

offenders, Oklahoma officials are unconstitutionally forced to administer the federal

registration program. Id. at 15–16. Instead, we reject Mr. Lynch’s Tenth Amendment

argument for the same reasons stated in White—nothing in SORNA compels a state

officer to implement a federal registry. Id. at 16.

      Third, Mr. Lynch claims SORNA’s requirement that pre-Act sex offenders

register violates the Ex Post Facto Clause by increasing the punishment for a past

offense. We upheld SORNA in the face of an Ex Post Facto Clause challenge in

United States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008). There we explained that

SORNA is a regulatory statute and any criminal penalties attach only to future

failures to register. Id. at 1332–36; see also White, No. 14-7031, slip op. at 13–14.

One panel of this court cannot overrule the judgment of another panel “absent en

                                                4
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). Mr. Lynch does not claim that

either exception to our horizontal stare decisis rule is present. We therefore reject his

ex post facto challenge to SORNA.

      Fourth, Mr. Lynch claims his conviction should be vacated because Congress

unconstitutionally delegated to the Attorney General the authority to determine

whether pre-Act sex offenders must comply with SORNA. But Mr. Lynch’s argument

is again precluded by a recent decision of this court. After the parties finished

briefing this case, we addressed whether Congress constitutionally delegated this

question to the Attorney General. In United States v. Nichols, 775 F.3d 1225 (10th

Cir. 2014), we upheld SORNA in the face of a nondelegation challenge because we

concluded that Congress had laid down an intelligent principle governing the

Attorney General’s decision. Id. at 1230–32. For the reasons stated in Nichols, we

hold Congress did not unconstitutionally delegate its legislative powers to the

attorney general under SORNA.

                                IV.    CONCLUSION

             We AFFIRM Mr. Lynch’s conviction for failure to register in violation

of 18 U.S.C. § 2250(a).

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge
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