                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5003


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CHAD TALADA,

                Defendant – Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:08-cr-00269-1)


Submitted:   May 14, 2010                     Decided:   June 2, 2010


Before KING, SHEDD, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Edward H. Weis, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant.    Charles T.
Miller, United States Attorney, Blaire L. Malkin, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Chad     Talada,       a   convicted        sex     offender,     was       charged

with one count of failing to update his registration as a sex

offender     under     the     criminal        provision         of    the    Sex       Offender

Registration and Notification Act (“SORNA”), 18 U.S.C. § 2250

(2006).       Pursuant        to   a    written     plea       agreement,      Talada         pled

guilty to the charged offense, reserving his right to appeal the

district court’s denial of his motion to dismiss the indictment.

He    was   sentenced     to       twenty-four       months’          imprisonment        and   a

seventy-year term of supervised release.                              Talada now appeals,

and for the following reasons, we affirm.

             On appeal Talada raises three issues.                           First, Talada

argues      the     criminal       provision       of        SORNA,    18 U.S.C.         § 2250,

exceeds     Congress’s        power      under     the       Commerce     Clause,        to   the

extent that it limits his right to travel.                              Second, he claims

the    Attorney       General’s         issuance        of     regulations      making         the

criminal          provision        of     SORNA         retroactive          violates         the

Administrative        Procedure         Act    (“APA”),         specifically        5    U.S.C.

§ 553 (2006).         Last, Talada maintains the district court abused

its discretion by requiring Talada, as a condition of supervised

release, to submit to polygraph examinations without ordering

that the results not be made public.

             As Talada readily concedes, the issue of whether the

Attorney     General’s        issuance        of   the       regulations     making       § 2250

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retroactive violates the APA has been addressed by this court in

United States v. Gould, 568 F.3d 459, 470 (4th Cir. 2009), cert.

denied, 130 S. Ct. 1686 (2010).                       In Gould, we held that “the

Attorney    General      had     good    cause        to     invoke      the   exception          to

providing the 30-day notice” required by § 553, and therefore

the issuance of the regulations did not violate the APA.                                       Id.

Accordingly, Talada’s argument is foreclosed by our holding in

Gould.     See Scotts Co. v. United Indus. Corp., 315 F.3d 264, 271

n.2 (4th Cir. 2002) (“[A] panel of this court cannot overrule,

explicitly or implicitly, the precedent set by a prior panel of

this court.        Only the Supreme Court or this court sitting en

banc can do that.” (internal quotation marks omitted)).

            Talada       also    argues        that    “the       only    ‘hook’       invoking

federal    jurisdiction         is     his    movement        from    New      York    to     West

Virginia,” and the only “criminal act triggering liability is

the failure to comply with state registration regimes, none of

which, at the time of Talada’s arrest, fully complied with the

requirements       of    SORNA.”             Thus,     Talada      concludes          that    the

criminal     sanction          under     SORNA,        “with       such        a   tangential

relationship        to      legitimate             federal        interests,           violates

Congress’s authority under the Commerce Clause, as circumscribed

by [his] right to interstate travel.”

            In     Gould,       this     court        held     that      § 2250(a),          which

requires    that    a    sex    offender        must       have   been     convicted         of   a

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qualifying       sex    offense        and,       after    conviction,          traveled    to

another     state       and      failed          to     register     or       maintain     his

registration, does not violate the Commerce Clause.                              Gould, 568

F.3d at 471-75.             Talada asserts that Gould is not controlling

because “the defendant in Gould raised the bare issue of whether

the Commerce Clause allowed for the regulation of ‘purely local

intrastate activity that has nothing to do with commerce or any

type of economic enterprise,’” and that Gould, in challenging

SORNA, did not raise the issue of whether Congress’s authority

under     the     Commerce        Clause          impinged      on      the      defendant’s

fundamental       right     to   travel.              Talada   states     that    Gould    was

convicted    under      § 2250(a)(2)(A),               criminalizing      the    failure   to

register by one who has been convicted as a sex offender in the

District of Columbia, and not under the same provision of § 2250

as Talada, i.e., § 2250(a)(2)(B), criminalizing the failure to

register by one who “travels in interstate or foreign commerce.”

According to Talada, the Commerce Clause issue raised by Gould’s

conviction, therefore, is distinct from the issue he raises.

            First,          despite     Talada’s          contentions,          this     court

explained in a footnote in Gould that while § 2250(a) “justifies

federal    jurisdiction          for    a    SORNA       failure-to-register           offense

also by reason of a defendant’s conviction for a sex offense

under   federal        or   District        of    Columbia     law,”      and    that    Gould

satisfied       this   basis     for    jurisdiction,           this    court     “need    not

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address    it    because     Gould    traveled        in   interstate        commerce.”

Gould, 568 F.3d at 470 n.5.             Second, we expressly discussed in

Gould the interaction of travel and Congress’s power under the

Commerce     Clause,    explaining      that        “Congress    .    .    .       has    the

authority to regulate persons in interstate commerce, especially

persons who move from the State of conviction to another State

and there fail to register, as they use instrumentalities of

interstate      commerce.”      Id.     at    471    (internal       quotation           marks

omitted).        Moreover,     SORNA     does       not    criminalize         a    sexual

offender    simply     for   engaging    in     interstate      travel.             Rather,

“Congress, motivated by a desire to prevent sex offenders from

traveling among the States to avoid state registration, used its

commerce power to enact a national program mandating stronger

and the more comprehensive registration system, as contained in

SORNA.”     Id. at 474.        Thus, although a SORNA violation under

§ 2250(a)(2)(B)      requires    interstate          travel,    it    also         requires

“the act of failing to register.”                   Id. at 470.           As a result,

Talada’s    argument    that    Gould    does       not    control    this     issue       is

without merit.

            Finally, Talada argues that the district court abused

its discretion by imposing a condition of supervised release

requiring him to submit to polygraph examinations as part of a

sex   offender     treatment     program        without      requiring         that        the

results of those examinations remain confidential.                             “District

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courts have broad latitude with regard to special conditions of

supervised        release,       and   we    review          the       [district]         court’s

decision    to     impose    a    condition       of       supervised       release        for   an

abuse of discretion.”              United States v. Holman, 532 F.3d 284,

288 (4th Cir. 2008) (internal quotation marks omitted).

             This court specifically addressed the use of polygraph

tests as a condition of supervised release in United States v.

Dotson, 324 F.3d 256, 261 (4th Cir. 2003).                          In Dotson, we upheld

the   use    of    polygraph       testing       as    a     condition         of       supervised

release     because    the       testing    was       to    be    used     “as      a    potential

treatment tool upon Dotson’s release from prison,” and not to

“gather[]     evidence       to    inculpate          or    exculpate          Dotson.”          Id.

While   Talada      concedes       that     imposition            of     the     condition        is

generally reasonable and not an abuse of discretion, he notes

that, in Dotson, the district court had taken the added measure

of directing that the results of any polygraph testing not be

made public.        Talada argues that the potential for disclosure in

his case, where no such specification was made, infringes on

his Fifth Amendment right to be free from self-incrimination.

             Here,    the    district       court          made    clear       at   sentencing,

like in Dotson, that “polygraph examinations are a part of . . .

an overall program of treatment and protection of the public,”

and that they are “a tool for supervision of the defendant for

an overall treatment scheme and program.”                               The court further

                                             6
noted that “[w]e all know they are not admissible,” and that the

use of polygraphs as a special condition for supervised release

was “appropriate as set forth in the standard conditions. . . .”

To the extent Talada suggests that potential disclosure of the

results of the testing could infringe on his Fifth Amendment

right to be free from self-incrimination, such a claim at this

juncture is merely speculative.             See United States v. Zinn, 321

F.3d 1084, 1092 (11th Cir. 2003) (“If and when Appellant is

forced to testify over his valid claim of privilege, he may

raise a Fifth Amendment challenge.            In the meantime, we can only

decide whether requiring polygraph testing as a condition of

supervised release generally violates the Fifth Amendment so as

to amount to plain error.          We hold it does not.”).

            Accordingly,      we     affirm     Talada’s        conviction    and

sentence.      We dispense with oral argument because the facts and

legal    contentions    are   adequately      presented    in    the    materials

before   the    court   and   argument      would   not   aid    the   decisional

process.

                                                                         AFFIRMED




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