     Case: 13-50421      Document: 00512508829         Page: 1    Date Filed: 01/22/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 13-50421                              January 22, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MATTHEW EZEKIEL STAGER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:12-CR-350-1


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Matthew Ezekiel Stager was charged in a one-count indictment with
traveling in interstate commerce and knowingly failing to register as required
by the Sex Offender Registration and Notification Act (SORNA), in violation of
18 U.S.C. § 2250(a). He entered a conditional guilty plea, reserving his right
to appeal the district court’s denial of his motion to dismiss the indictment on
grounds that SORNA’s registration requirement, 42 U.S.C. § 16913, was


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 13-50421    Document: 00512508829     Page: 2   Date Filed: 01/22/2014


                                 No. 13-50421

unconstitutional in light of the Supreme Court’s decision in Nat’l Fed’n of
Indep. Bus. (NFIB) v. Sebelius, 132 S. Ct. 2566 (2012).
      Stager contends that SORNA’s registration requirement, which compels
individuals to actively register intrastate, is unconstitutional because it
exceeds Congress’s authority under the Commerce Clause. He argues that in
NFIB, a majority of the Justices held that the Commerce Clause does not
authorize Congress to compel individuals to engage in local activity. Like the
obligation to purchase health insurance at issue in NFIB, Stager argues that
SORNA’s registration requirement regulates an individual’s inactivity.
According to Stager, SORNA’s registration requirement is even further
removed from Congress’s Commerce Clause authority because the underlying
activity is not economic. Finally, he argues that the registration requirement
cannot be upheld under the Necessary and Proper Clause. Stager concedes
that his argument is foreclosed by our decision in United States v. Whaley, 577
F.3d 254 (5th Cir. 2009), but he seeks to preserve the issue for further review.
The Government has filed a motion for summary affirmance, arguing that
Stager’s argument is foreclosed by Whaley. In the alternative, the Government
requests an extension of time in which to file a brief on the merits.
      We review constitutional claims de novo. Whaley, 577 F.3d at 256. In
Whaley, we held that SORNA’s registration and penalty provisions were valid
exercises of Congress’s Commerce Clause power. Id. at 258-61. Under our rule
of orderliness, one panel may not overrule the decision of a prior panel absent
an intervening change in the law, such as by a superseding Supreme Court
case. United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). “Such an
intervening change in the law must be unequivocal, not a mere ‘hint’ of how
the Court might rule in the future.” Id. at 146. Because NFIB did not explicitly
or implicitly overrule Whaley, we are bound by that decision. See id. at 145-46



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                               No. 13-50421

(rejecting argument that NFIB overruled circuit precedent holding 18 U.S.C.
§ 922(g)(1) constitutional).   Accordingly, the Government’s motion for
summary affirmance is GRANTED, its alternative motion for an extension of
time to file a brief is DENIED, and the judgment of the district court is
AFFIRMED.




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