     12-3148-cr
     United States v. Robbins
 1
 2
 3                              UNITED STATES COURT OF APPEALS
 4
 5                                 FOR THE SECOND CIRCUIT
 6
 7
 8
 9                                       August Term, 2013
10   (Argued: June 20, 2013                                     Decided: September 3, 2013)
11
12                                     Docket No. 12-3148-cr
13
14
15
16                                 UNITED STATES OF AMERICA,
17
18                                            Appellee,
19
20                                              – v. –
21
22                                      NATHAN ROBBINS,
23                                    aka Nathan L.H. Robbins,
24
25                                       Defendant-Appellant.
26
27
28
29   Before: CALABRESI, CABRANES, and SACK, Circuit Judges.

30            Appeal from an August 3, 2012 judgment convicting defendant-appellant

31   Nathan Robbins for failing to register under SORNA, the Sex Offender

32   Registration and Notification Act, in violation of 18 U.S.C. § 2250(a). Robbins

33   challenges SORNA as unconstitutional in light of the Supreme Court’s decision in

34   National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012). Because
 1   SORNA, at least as applied to Robbins, regulates activity involving travel in

 2   interstate commerce, we AFFIRM.

 3                                       JAMES P. EGAN (Lisa A. Peebles, on the brief)
 4                                       Federal Public Defender’s Office, Northern
 5                                       District of New York, Syracuse, N.Y., for
 6                                       Defendant-Appellant.
 7
 8                                       BRENDA K. SANNES, Assistant United States
 9                                       Attorney (Lisa M. Fletcher, Assistant United
10                                       States Attorney, on the brief), for Richard S.
11                                       Hartunian, United States Attorney, Northern
12                                       District of New York, Syracuse, N.Y., for Appellee.
13
14
15   CALABRESI, Circuit Judge:

16          In August 2011, after traveling from New York to Nevada, defendant-

17   appellant Nathan Robbins knowingly failed to update his registration as a sex

18   offender, as he was required to do under the Sex Offender Registration and

19   Notification Act (“SORNA”), 42 U.S.C. § 16913. He subsequently pled guilty to

20   violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required

21   to register under SORNA to travel in interstate commerce and knowingly fail to

22   update his registration. Despite his plea, Robbins retained the right to challenge the

23   constitutionality of the statutes he admitted violating, and he brings just such a

24   challenge here.


25          This Court has previously held that Congress acted within its powers under

26   the Constitution’s Commerce Clause when it enacted SORNA. See United States v.



                                               –2–
 1   Guzman, 591 F.3d 83 (2d Cir. 2010). Since then, however, the Supreme Court has

 2   revisited and further clarified—if that is the appropriate word—the reach of

 3   Congress’s power “[t]o regulate Commerce . . . among the several States.” U.S.

 4   Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)

 5   (“NFIB”). Robbins invites us to revisit our holding in Guzman in light of the

 6   Supreme Court’s decision in NFIB.

 7          We decline Robbins’ invitation not because his arguments all lack force, nor

 8   because the constitutionality of SORNA—particularly when applied within the

 9   states—is beyond question, see United States v. Kebodeaux, 570 U.S. ___, No. 12-418,

10   slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J., concurring in the judgment) (“The

11   fact of a prior federal conviction, by itself, does not give Congress a freestanding,

12   independent, and perpetual interest in protecting the public from the convict’s

13   purely intrastate conduct.”), but because the constitutionality of SORNA as applied

14   to Robbins remains unaffected by any limitations on Congress’s Commerce Clause

15   power that may be found in NFIB. Still bound by the precedent set in Guzman, we

16   therefore AFFIRM Robbins’ conviction.

17


18                                       BACKGROUND

19                                                A.

20          In July 2003, Robbins pled guilty to a state charge of sexual misconduct for

21   having sex with a sixteen-year-old girl when he was twenty-four. New York


                                                 –3–
 1   designated Robbins a sexual offender, and Robbins complied with the resulting

 2   registration requirements until June 2011.

 3           During that time, however, Robbins again ran afoul of the law. In October

 4   2010, he was convicted and sentenced to probation for fourth degree grand larceny,

 5   second degree criminal contempt, and petit larceny. As a condition of his

 6   probation, Robbins was required to stay in a residence approved by his probation

 7   officer. But in August 2011, he tested positive for drug use and was evicted from the

 8   approved residence. A county court in New York issued a warrant on August 11 for

 9   Robbins’ arrest for violation of the terms of his probation. On August 25, U.S.

10   Marshals located Robbins at a casino in Las Vegas, Nevada. Robbins told the

11   marshal who arrested him that he knew about his obligation to register as a sex

12   offender, but had not done so because he knew that a warrant had been issued for

13   his arrest.

14           Robbins was indicted in the Northern District of New York for having

15   traveled in interstate commerce and knowingly failed to update his registration as

16   required under SORNA. 18 U.S.C. § 2250(a); 42 U.S.C. § 16913. Robbins moved

17   to dismiss the indictment, claiming that Congress lacked the constitutional

18   authority to impose SORNA’s requirements and penalties. On March 1, 2012, the

19   district court (Norman A. Mordue, Judge) denied Robbins’ motion. Robbins

20   subsequently pled guilty, though he reserved the right to appeal the district court’s




                                              –4–
 1   denial of his constitutional challenge. On July 26, 2012, the district court sentenced

 2   Robbins to 30 months’ imprisonment—a term he is currently serving.

 3                                             B.

 4          SORNA, which was enacted in 2006, includes two provisions that are

 5   challenged in the present case.

 6          First, the registration requirement of 42 U.S.C. § 16913 requires that a sex

 7   offender “register, and keep the registration current, in each jurisdiction where the

 8   offender resides, where the offender is an employee, and where the offender is a

 9   student.” Id. § 16913(a). Designated sex offenders must update their registration

10   “not later than 3 business days after each change of name, residence, employment,

11   or student status” by appearing in person in one of the jurisdictions where they live,

12   work, or study. Id. § 16913(c).

13          Second, SORNA’s criminal enforcement provision, 18 U.S.C. § 2250(a),

14   dictates that:

15          Whoever—
16               (1) is required to register under the Sex Offender Registration
17                   and Notification Act;
18               (2) (A) is a sex offender as defined for the purposes of the Sex
19                   Offender Registration and Notification Act by reason of a
20                   conviction under Federal law (including the Uniform Code
21                   of Military Justice), the law of the District of Columbia,
22                   Indian tribal law, or the law of any territory or possession
23                   of the United States; or
24                   (B) travels in interstate or foreign commerce, or enters or
25                   leaves, or resides in, Indian country; and




                                              –5–
 1                  (3) knowingly fails to register or update a registration as
 2                      required by the Sex Offender Registration and Notification
 3                      Act;
 4          shall be fined under this title or imprisoned not more than 10 years,
 5          or both.
 6
 7   Id.
 8          We consider de novo the constitutionality of these statutory provisions. See

 9   United States v. Weingarten, 632 F.3d 60, 63-64 (2d Cir. 2011).

10


11                                        DISCUSSION

12          Though Robbins disputes the continued validity of United States v. Guzman,

13   no one denies that case’s applicability to the present matter. In Guzman, this Court

14   rejected constitutional challenges to §§ 2250(a) and 16913 brought by two

15   defendants whose convictions mirror those of Robbins’ in all relevant respects. We

16   began in Guzman by recounting Congress’s three categories of power under the

17   Commerce Clause, as described by the Supreme Court in United States v. Lopez, 514

18   U.S. 549 (1995):

19          (1) “[to] regulate the use of the channels of interstate commerce”; (2)
20          “to regulate and protect the instrumentalities of interstate commerce,
21          or persons or things in interstate commerce, even though the threat
22          may come only from intrastate activities”; and (3) “to regulate those
23          activities having a substantial relation to interstate commerce.”
24
25   Guzman, 591 F.3d at 89 (quoting Lopez, 514 U.S. at 558-89). This Court had little

26   trouble concluding that § 2250(a), insofar as it ties criminal liability to interstate




                                                –6–
 1   travel, falls under both the first and second of the Lopez categories, and thus

 2   constitutes a valid exercise of Congressional power. 1 Id. at 90.

 3          The registration requirement of § 16913 presented a somewhat closer

 4   question—indeed, the district court in Guzman found that since § 16913 requires

 5   initial registration and updates by state offenders who move within their state’s

 6   borders, it exceeds Congress’s Commerce Clause powers. This Court held, however,

 7   that § 16913 and § 2250(a) have to be considered in tandem, because the former

 8   gives the latter substance, while the latter gives the former teeth. Cf. id. at 90. The

 9   intrastate registration requirements of § 16913 are necessary and proper, we held, as

10   they comprise “a perfectly logical way to help ensure that states will more effectively

11   be able to track sex offenders when they do cross state lines.” Id. at 91.

12          Given this clear and recent precedent, there would seem to be nothing left to

13   say in the case currently before us. But Robbins—recognizing that “if there has been

14   an intervening Supreme Court decision that casts doubt on our controlling


            1
               Guzman also mentioned, and seemingly approved of, § 2250(a)’s alternative
     jurisdictional predicate, a conviction under federal law, which makes interstate
     travel unnecessary for a conviction under SORNA. See 18 U.S.C. § 2250(a)(2)(A);
     Guzman, 591 F.3d at 90. Whatever questions may be raised after NFIB about
     SORNA’s applicability to federal offenders engaged in purely intrastate travel, the
     issue does not arise in the instant case, as Robbins admittedly traveled from New
     York to Nevada. Because the federal offender prong of § 2250(a) is not at issue
     here—and, indeed, was not in Guzman, where both defendants were state sex
     offenders who had traveled across state lines, Guzman, 591 F.3d at 86-88—we
     needn’t consider the constitutionality of SORNA as applied to those who have not
     crossed state borders but whose federal crimes trigger § 2250(a) nonetheless.


                                                –7–
 1   precedent, one panel of this Court may overrule a prior decision of another panel,”

 2   In re Zarnel, 619 F.3d 156, 168 (2d Cir. 2010) (quotation marks omitted)—urges us

 3   to revisit Guzman in light of NFIB, the Supreme Court’s fractured decision on the

 4   constitutionality of the Affordable Care Act. See NFIB, 132 S. Ct. 2566 (2012).

 5          Robbins’ is not the first challenge to an application of SORNA that this

 6   Court has considered since NFIB was decided. In United States v. Brunner, No. 11-

 7   2115, _ F.3d _, 2013 WL 4033847 (2d Cir. Aug. 9, 2013), we considered the

 8   application of SORNA to Kenneth Brunner, who had been convicted of a sex

 9   offense in violation of the Uniform Code of Military Justice (“U.C.M.J.”) and had

10   thereafter failed to comply with SORNA’s registration requirements. We upheld the

11   judgment sentencing Brunner to six months’ imprisonment pursuant to § 2250(a)

12   under the Constitution’s Military Regulation Clause and Necessary and Proper

13   Clause. Id. at *3-4. Interestingly, Brunner also argued that his sentence violated the

14   Ex Post Facto Clause of the Constitution, and we concluded that his argument was

15   “foreclosed by our Court’s decision in United States v. Guzman”—a conclusion that

16   would appear to signal that Guzman remains good law—at least in part—even after

17   NFIB. Id. at *4. However, because Robbins’ challenge to SORNA differs materially

18   from the one brought by Brunner—who was convicted of a federal offense under the

19   U.C.M.J. and had not travelled in interstate commerce, and whose conviction was

20   upheld also on the basis of the Constitution’s Military Regulation Clause—we

21   consider it here.


                                               –8–
 1          Robbins’ argument that NFIB alters our understanding of the Commerce

 2   Clause as to undermine the holding of Guzman encounters an early obstacle: NFIB

 3   may not say anything binding about the Commerce Clause at all. It is not clear

 4   whether anything said about the Commerce Clause in NFIB’s primary opinion—that

 5   of Chief Justice Roberts—is more than dicta, since Part III-A of the Chief Justice’s

 6   opinion was not joined by any other Justice and, at least arguably, discussed a

 7   bypassed alternative, rather than a necessary step, in the Court’s decision to uphold

 8   the Act. See NFIB, 132 S. Ct. at 2585-93; United States v. Henry, 688 F.3d 637, 641

 9   n.5 (9th Cir. 2012) (“There has been considerable debate about whether the

10   statements about the Commerce Clause [in NFIB] are dicta or binding precedent.”);

11   see also United States v. Roszkowski, 700 F.3d 50, 58 n.3 (1st Cir. 2012) (declining to

12   decide “whether the Chief Justice’s Commerce Clause discussion was indeed a

13   holding of the Court”). But cf. Grutter v. Bollinger, 539 U.S. 306, 323 (2003) (noting

14   that Justice Powell’s opinion announcing the judgment of the Court in Regents of

15   University of California v. Bakke, 438 U.S. 265 (1978), although failing to command a

16   majority of the Court, “has served as the touchstone for constitutional analysis of

17   race-conscious admissions policies”).

18          Fortunately, we can avoid sorting holding’s wheat from dicta’s chaff simply

19   by assuming for the sake of argument that the Chief Justice’s statements with regard

20   to commerce in NFIB constitute holdings and stand for exactly what Robbins says

21   they do. In particular, Robbins derives four relevant propositions from the opinion


                                               –9–
 1   of Chief Justice Roberts, read in tandem with parallel arguments made in the jointly

 2   authored dissent. See NFIB, 132 S. Ct. at 2642-50 (Scalia, Kennedy, Thomas, and

 3   Alito, JJ., dissenting). First, the Commerce Clause does not give Congress the power

 4   to regulate inactivity. Second, Congress cannot regulate conduct today based on

 5   activity predicted tomorrow. Third, the federal government does not have “[a]ny

 6   police power to regulate individuals as such, as opposed to their activities.” NFIB,

 7   132 S. Ct. at 2591 (Roberts, C.J.). Fourth, the Necessary and Proper Clause does

 8   not add any “‘great substantive and independent’” federal powers to those

 9   enumerated in the Constitution. Id. at 2591 (quoting McCulloch v. Maryland, 17

10   U.S. (4 Wheat.) 316, 411 (1819)).

11          Assuming the accuracy of these propositions arguendo, we still find in them

12   nothing that helps Robbins’ cause. Robbins argues that SORNA’s registration

13   provision regulates inactivity, impermissibly compelling conduct that is non-

14   economic in nature. But unlike the uninsured in NFIB, the sex offenders who are

15   subjected to SORNA’s requirements have all, in a sense, “opted in” to the regulated

16   group through their prior criminal activity. See United States v. Cabrera-Gutierrez, 718

17   F.3d 873, 879 (9th Cir. 2013). And more significantly, whatever else SORNA might

18   require,2 the registration requirement that Robbins himself failed to meet was



            2
             Robbins argues, for example, that the initial registration requirement of
     § 16913 and the “periodic in person verification” requirement of § 16916 each can
     “only be understood as a regulation of inactivity.” Reply Br. at 2. We offer no

                                               –10–
 1   triggered by activity: his change of residence and travel across state lines. As applied

 2   to Robbins, then, §§ 16913 and 2250(a) not only regulate activity, but activity that

 3   directly employs the channels of interstate commerce.

 4          Robbins’ most plausible argument is his claim that § 2250(a), despite its

 5   interstate travel provision, does not actually regulate interstate travel, but rather

 6   something which occurs (or not) in the three days after such travel. To criminalize a

 7   failure to register one’s address in the days following interstate travel is not to

 8   regulate the travel itself, Robbins argues. Robbins observes that, in contrast to

 9   § 2250(a), other federal criminal statutes involving interstate travel require criminal

10   intent or purpose at the time of travel; under those statutes, though not under

11   § 2250(a), “a defendant can be apprehended at the border.” Appellant’s Br. at 22.

12          Whatever the merit of this argument—and we do not decide that here—it is

13   an argument foreclosed by Guzman, which held in no uncertain terms that

14   § 2250(a) is a valid regulation of “persons traveling in interstate commerce.”

15   Guzman, 591 F.3d at 90. The Guzman Court may not have explicitly considered how

16   long after travel the federal government’s period of regulation may extend—when, in

17   other words, travel ends and inactivity begins—but since that is a question which

18   NFIB does not itself address, we cannot say that any intervening decision of the

19   Supreme Court undermines the reasoning behind our settled precedent. At least


     opinion on this argument because Robbins—whose conviction does not rest on
     either of these requirements—lacks standing to raise it.


                                               –11–
1   insofar as SORNA applies to an interstate traveler such as Robbins, we remain

2   bound by Guzman’s conclusion that SORNA “is a legitimate exercise of

3   congressional Commerce Clause authority.” Id.

4



5                                     CONCLUSION

6          For the foregoing reasons, we again find SORNA constitutional—at least as

7   applied to those, like Robbins, whose failure to register follows interstate travel—and

8   therefore AFFIRM the judgment of the district court.




                                             –12–
