                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-4909


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

KEITH LEE BURNS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:09-cr-00016-jct-1)


Argued:   December 8, 2010                 Decided:   March 21, 2011


Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and David A.
FABER, Senior United States District Judge for the Southern
District of West Virginia, sitting by designation.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Chief Judge Traxler and Senior Judge Faber joined
except as to Part III.     Chief Judge Traxler wrote a separate
concurring opinion, in which Senior Judge Faber joined.


ARGUED: Christine Madeleine Lee, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.      Adam Benjamin
Spencer, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.   ON BRIEF: Larry W. Shelton, Federal
Public Defender, Allegra M. C. Black, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.     Timothy J. Heaphy,    United   States
Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
WYNN, Circuit Judge:

     Defendant             Keith    Lee    Burns      was        convicted     of    traveling

interstate       and       knowingly      failing     to     update    his     sex    offender

registration as required by the Sex Offender Registration and

Notification           Act    (“SORNA”).             18     U.S.C.     § 2250(a)          (2006)

(“failure-to-register statute”); 42 U.S.C. §§ 16913 (2006).                                  On

appeal,        Burns       challenges      his       conviction       on      constitutional

delegation, ex post facto, and venue grounds.                                 After careful

review, we reject each challenge and affirm Burns’s conviction.



                                              I.

     On January 9, 2004, Burns was convicted in a Virginia state

court     of    possession          of    obscene      material.             Following     that

conviction, Burns registered as a sex offender in Virginia on

January 23, 2004.

     Burns        later        became      subject          to     SORNA’s      registration

requirements, which were enacted on July 27, 2006.                              Sex Offender

Registration & Notification Act, Pub. L. No. 109-248, 120 Stat.

590 (2006).          SORNA imposed on convicted sex offenders duties to

“register,           and     keep    the     registration            current,        in     each

jurisdiction where the offender resides, where the offender is

an employee, and where the offender is a student.”                                   42 U.S.C.

§ 16913(a).          Sex offenders convicted after SORNA’s enactment are

required        to      register         “before      completing        a      sentence       of

                                                 3
imprisonment       with    respect     to       the      offense     giving      rise    to    the

registration       requirement,”           or   within          three    business       days    of

sentencing if the offender did not receive a prison term.                                      Id.

§ 16913(b).

      Regarding         sex      offenders          convicted           prior     to     SORNA’s

enactment,      Congress         delegated          to    the     Attorney       General       the

authority to determine whether SORNA’s registration requirements

would   apply     to    them.        Id.    § 16913(d)           (“The    Attorney       General

shall have the authority to specify the applicability of the

requirements       of     this      subchapter           to    sex   offenders         convicted

before the enactment of this chapter or its implementation in a

particular        jurisdiction,        and          to    prescribe        rules        for    the

registration of any such sex offenders . . . .”).                                 Pursuant to

that authority, the Attorney General published a rule on October

28, 2007 announcing that the “requirements of [SORNA] apply 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 (2007).

      In February 2008, Burns, who was convicted prior to SORNA’s

enactment,      moved     from      Virginia         to       California,       where    he    was

arrested on July 2, 2008.              In April 2009, Burns was indicted in

the District       Court      for    the    Western           District     of    Virginia      for

failure to register.             Burns pled guilty but reserved his right

to appeal the conviction.

                                                4
                                            II.

      On   appeal,      Burns    first      argues         that    his    conviction       is

invalid    because      Congress      unconstitutionally            delegated        to    the

Executive Branch the authority to apply SORNA retroactively to

pre-enactment sex offenders.                Burns contends that the decision

to    apply    SORNA    retroactively           is    a    nondelegable        legislative

function.      We review this constitutional question de novo.                            S.C.

Med. Ass’n v. Thompson, 327 F.3d 346, 349-50 (4th Cir. 2003);

see also United States v. Hall, 551 F.3d 257, 266 (4th Cir.

2009) (“We review de novo a properly preserved constitutional

claim.”).

      Congress may, and routinely does, delegate authority to the

Executive Branch to implement legislative policy.                             “So long as

Congress      ‘shall    lay    down   by    legislative           act    an   intelligible

principle to which the person or body authorized to [exercise

the    delegated        authority]         is     directed         to     conform,        such

legislative action is not a forbidden delegation of legislative

power.’”      Mistretta v. United States, 488 U.S. 361, 372 (1989)

(quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 409 (1928)).             Even a general legislative directive is a

constitutionally         sufficient,             intelligible           principle         “‘if

Congress      clearly    delineates        the       general      policy,     the    public

agency     which   is    to     apply      it,       and   the    boundaries        of    this



                                             5
delegated authority.’”           Id. at 372-73 (quoting Am. Power & Light

Co. v. SEC, 329 U.S. 90, 105 (1946)).

      Regarding SORNA, we readily conclude that Congress provided

an   intelligible        principle    to    guide       the    Attorney       General    in

exercising      his     delegated     authority.              Congress    stated       that

SORNA’s purpose is “to protect the public from sex offenders and

offenders      against    children”    through      “a    comprehensive         national

system   for    the   registration         of   those    offenders.”           42    U.S.C.

§ 16901.         With     the    failure-to-register             statute,       Congress

criminalized a sex offender’s failure to comply with SORNA’s

registration requirements, defining and specifically setting out

the elements of that offense.                   18 U.S.C. § 2250(a).                As this

Court has previously stated, Congress delegated to the Attorney

General “the authority both to ‘specify the applicability’ of

SORNA    with    regard     to   pre-SORNA        offenders       and    to    prescribe

registration rules for all pre-SORNA offenders and for other sex

offenders who are unable to comply with the initial registration

requirements.”        United States v. Hatcher, 560 F.3d 222, 227 (4th

Cir. 2009) (quoting 42 U.S.C. § 16913(d)).

      That authority, however, was substantially bounded by the

policies and requirements set forth in SORNA, as well as the

elements spelled out in the failure-to-register statute.                               See,

e.g., United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010)

(concluding that the Attorney General’s delegated authority is

                                            6
“highly       circumscribed”            because         SORNA     “includes          specific

provisions delineating what crimes require registration; where,

when, and how an offender must register; what information is

required of registrants; and the elements and penalties for the

federal      crime    of     failure      to     register”       (citations      omitted));

United    States      v.    Whaley,       577    F.3d    254,    264    (5th    Cir.    2009)

(stating that SORNA’s statement of purpose in 42 U.S.C. § 16901

is a guiding intelligible principle); United States v. Ambert,

561   F.3d    1202,    1213-14       (11th       Cir.    2009)     (describing        SORNA’s

broad    policy      goals    as    guiding         intelligible       principles).        In

other     words,      Congress       did        not    give     the    Attorney       General

unbridled       discretion           to         impose        different        registration

requirements or to create a new criminal offense to be applied

to    pre-enactment         sex    offenders.            Guzman,       591    F.3d    at   93;

Hatcher,     560     F.3d    at    227.         Instead,      Congress       delineated    the

“general     policy”        and   set     forth       discernible      boundaries      within

which the Attorney General could exercise delegated authority.

Mistretta, 488 U.S. at 372-73.                      Therefore, Congress provided an

intelligible         principle,         and      we     reject     Burns’s       delegation

argument.



                                               III.

      Next, Burns argues that his failure-to-register conviction

violates the Ex Post Facto Clause because his conviction for the

                                                7
underlying       sex   offense     occurred       long     before    SORNA     and    the

failure-to-register          statute      were       enacted.       We     review    this

question of law de novo.               Plyler v. Moore, 129 F.3d 728, 734

(4th Cir. 1997).

       Burns is correct that the “Ex Post Facto Clause prohibits

punishment of a defendant ‘for an act which was not punishable

at the time it was committed.’”                      United States v. Gould, 568

F.3d 459, 466 (4th Cir. 2009) (quoting Weaver v. Graham, 450

U.S. 24, 28 (1981)).           However, Burns overlooks the fact that his

failure-to-register           conviction         stems       from        post-enactment

conduct.         He    was    convicted        for     moving     from    Virginia     to

California and failing to register in that state in July 2008,

well    after     SORNA      and   the    failure-to-register             statute    were

enacted and the Attorney General announced that they applied to

pre-enactment sex offenders.

       Indeed,    we   rejected     the    same       ex   post   facto    argument    in

Gould, explaining as follows:

       Gould was punished for failing to register during the
       period after SORNA was enacted, beginning at least as
       early as February 28, 2007, when the Attorney General
       issued his Interim Regulations clarifying that SORNA
       applied to pre-SORNA sex offenders. Because Gould was
       punished for his conduct after enactment of the SORNA
       provision criminalizing the conduct, his punishment
       does not violate the Ex Post Facto Clause.

Id.; see also United States v. Shenandoah, 595 F.3d 151, 158-59

(3d Cir. 2010).        We reject Burns’s argument that his failure-to-


                                           8
register conviction is an ex post facto punishment for the same

reasons. *



                              IV.

     Finally, Burns argues that the Western District of Virginia

was the improper venue for his prosecution because the offense


     *
       By citing to Smith v. Doe, 538 U.S. 84 (2003), in his
Opening and Reply Briefs, Burns arguably seeks to present the
issue of whether the registration requirements of SORNA
constitute an ex post facto punishment for his 2004 sex offense
conviction.  However, that argument is not adequately presented
in his briefs by relevant analysis and citation. Additionally,
the Government has not briefed that issue before this Court.
Accordingly, an ex post facto challenge to SORNA’s registration
requirements is not properly before this Court.     11126 Balt.
Blvd., Inc. v. Prince George’s Cnty., Md., 58 F.3d 988, 993 n.7
(4th Cir. 1995) (en banc).

     But even if it is presented, the “majority concurring”
opinion hardly answers it. The Eighth Circuit in United States
v. May, 535 F.3d 912 (8th Cir. 2008), after initially holding
that “SORNA’s registration requirement” is nonpunitive because
“Congress described SORNA as a public safety measure,” id. at
920 (citing 42 U.S.C. § 16901), purported to inquire whether
“the statutory scheme is so punitive [in effect] that it negates
Congress’s intention to deem the act civil.” Id. But the court
actually resolved the issue on the basis that 18 U.S.C. § 2250
(the failure–to-register statute) “does not punish an individual
for previously being convicted of a sex crime.”    Id.   That is
the same issue resolved by this Court in this opinion, and by
another panel of this Court in Gould.    Like the Eighth Circuit
in May, the “majority concurring” opinion does not scrutinize
SORNA’s registration requirements under the factors required by
Smith to determine whether SORNA’s registration requirements are
so punitive in effect as to override the Act’s statement of
regulatory intent.    In short, neither May nor the “majority
concurring” opinion resolves an ex post facto challenge to
SORNA’s registration requirements.



                               9
occurred in California, where SORNA required him to register.

The proper venue is a question of law, which we review de novo.

United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001).

     Criminal defendants have a constitutional right to be tried

“by an impartial jury of the State and district wherein the

crime shall have been committed . . . .”                 U.S. Const. amend. VI;

see also Fed. R. Crim. P. 18 (“Unless a statute or these rules

permit otherwise, the government must prosecute an offense in a

district where the offense was committed.”).                   However, Burns’s

violation of 18 U.S.C. § 2250(a) necessarily involved more than

one district because he traveled interstate from Virginia to

California, where he failed to register.                    In this situation,

venue is governed by 18 U.S.C. § 3237(a), which states that “any

offense    against    the    United   States     begun    in   one   district   and

completed in another, or committed in more than one district,

may be inquired of and prosecuted in any district in which such

offense was begun, continued, or completed.”

     Burns’s offense began in Virginia because his move from

that state gave rise to his duty to register in California,

where Burns’s offense was completed when he failed to register.

42 U.S.C. § 16913(c).             Because Burns’s offense began when he

moved     from    Virginia,       thereafter     failing       to    register   in

California,       venue     was   proper    in   the     Western     District   of

Virginia.        See, e.g., United States v. Howell, 552 F.3d 709,

                                       10
717-18 (8th Cir. 2009) (holding that venue for a failure-to-

register   prosecution   was   proper   in   the   Northern   District   of

Iowa, from which the defendant moved to Texas where he failed to

register).   Accordingly, we reject this argument.



                                   V.

     Because none of Burns’s arguments has merit, we affirm his

conviction for failing to register under 18 U.S.C. § 2250(a).



                                                                 AFFIRMED




                                   11
TRAXLER, Chief Judge, concurring:

     I concur in Parts I, II, IV, and V of Judge Wynn’s opinion

and in the result reached in Part III.      However, because my

understanding of the ex post facto argument Burns raises and my

analysis of Burns’s argument differ from that of my colleague, I

write separately regarding that issue.

     I understand Burns’s argument to be that we

     should find that because the FFR statute, applied to
     persons like Mr. Burns whose conviction of a sex
     offense   long  predated   the  FFR’s   implementation,
     creates new penalties not known or contemplated at the
     time the appellant committed his offense, enforcement
     of the FFR statute against him violates the ex post
     facto clause of the United States Constitution.

Appellant’s brief at 14.    For the reasons explained in United

States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008), I disagree

with Burns.




                               12
