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

                            FOR THE TENTH CIRCUIT                               June 25, 2019
                        _________________________________
                                                                            Elisabeth A. Shumaker
                                                                                Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-8006
                                                    (D.C. No. 2:12-CR-00026-ABJ-1)
 MONTY ENGLEHART,                                               (D. Wyo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________

       Appellant Monty Englehart, a convicted sex offender, was charged with failing to

register under the Sex Offender Registration and Notification Act (“SORNA”), 34 U.S.C.

§ 20901 et seq. He moved to dismiss the indictment, arguing that SORNA violated the

constitutional nondelegation doctrine by improperly delegating legislative power to the

Attorney General. The district court denied the motion, and Mr. Englehart appealed.




       *
         This order and judgment is not binding precedent, except under the doctrines of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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
       We hold that Mr. Englehart’s nondelegation argument is foreclosed by Gundy v.

United States, No. 17-6086, 2019 WL 2527473, at *1 (U.S. June 20, 2019). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                    I. BACKGROUND

       In 1997, Mr. Englehart was convicted of aggravated criminal sexual abuse. Nine

years later, Congress enacted SORNA, which requires convicted sex offenders to register

in a national sex offender registry. See 34 U.S.C. § 20913(a). Title 18 U.S.C. § 2250(a)

makes it a felony for an individual “required to register under [SORNA]” to “travel[] in

interstate or foreign commerce” and “knowingly fail[] to register or update a registration

as required by [SORNA].”

       SORNA gives the Attorney General “the authority to specify the applicability of

the [registration] requirements . . . to sex offenders convicted before [SORNA’s]

enactment . . . and to prescribe rules for the registration of any such sex offenders.”

34 U.S.C. § 20913(d). Exercising this authority, the Attorney General issued an interim

rule in 2007 applying SORNA’s registration requirements “to all sex offenders, including

sex offenders convicted of the offense . . . prior to the enactment of [SORNA].” 72 Fed.

Reg. 8894-01 (Feb. 28, 2007) (to be codified at 28 C.F.R. § 72.3). In 2010, it issued a

second regulation finalizing SORNA’s retroactive applicability. 28 C.F.R. § 72.3.

       Mr. Englehart was charged under 18 U.S.C. § 2250(a) for failing to register as

required under SORNA and the regulation. He moved to dismiss the indictment, arguing

that SORNA’s grant of authority to the Attorney General to specify the extent of the

Act’s retroactive application violated the constitutional nondelegation doctrine. Mr.

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Englehart acknowledged that his argument was “currently foreclosed,” ROA at 18, by

United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014), which held that SORNA does

not violate the nondelegation doctrine. Id. at 1231-32. But because Gundy—a case

addressing “this very issue”—was then pending before the United States Supreme Court,

he “raise[d] this argument to preserve it for further review.” ROA at 22.

       The district court denied the motion to dismiss, and Mr. Englehart appealed,

urging the same arguments.

                                     II. ANALYSIS

       On June 20, 2019, the Supreme Court decided Gundy. The Court held that

Congress did not “make an impermissible delegation when it instructed the Attorney

General to apply SORNA’s registration requirements to pre-Act offenders,” Gundy, 2019

WL 2527473, at *8, and that the “delegation easily passes constitutional muster,” id. at

*2.

                                  III. CONCLUSION

       The Supreme Court’s holding in Gundy forecloses Mr. Englehart’s nondelegation

argument. Accordingly, we affirm.




                                             Entered for the Court


                                             Scott M. Matheson, Jr.
                                             Circuit Judge




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