                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-5099


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

FRANK COSTA ROGERS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:09-cr-00227-TLW-1)


Argued:   January 27, 2012                 Decided:   March 6, 2012


Before GREGORY, DAVIS, and DIAZ, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


ARGUED: Michael A. Meetze, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Florence, South Carolina, for Appellant. Susan Zalkin
Hitt, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.    ON BRIEF: William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Frank Costa Rogers appeals his conviction and twenty-one

month sentence on one count of traveling in interstate commerce

while failing to register as a sex offender in violation of 18

U.S.C. § 2250(a). He argues that certain provisions of the Sex

Offender Registration and Notification Act (“SORNA”), 42 U.S.C.

§ 16901 et seq., are unconstitutional, and that the district

court abused its discretion when it imposed certain conditions

of supervised release. We reject his constitutional challenge to

SORNA   but   we    find     merit,    in     part,     in    his   challenge     to    the

imposition of two conditions of supervised release. Accordingly,

we affirm in part and vacate and remand in part.



                                            I.

     Rogers       first    contends     that      the    district    court    erred      in

denying     his     motion     to     dismiss      the       indictment.     He     raises

challenges to the application of SORNA based on the Ex Post

Facto     Clause,    the      Commerce      Clause,      due     process,     the      non-

delegation        doctrine,     and     the       Administrative       Procedure        Act

(“APA”), specifically 5 U.S.C. § 553. We review the denial of a

motion to dismiss the indictment where the denial depends solely

on questions of law de novo. United States v. Hatcher, 560 F.3d

222, 224 (4th Cir. 2009).



                                              2
      We note, as Rogers concedes, that we have, in published

authority, rejected virtually identical Ex Post Facto, Commerce

Clause, due process, and APA challenges to SORNA. See United

States v. Gould, 568 F.3d 459 (4th Cir. 2009), cert. denied, 130

S. Ct. 1686 (2010). “[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.” Scotts Co. v. United Indus. Corp., 315 F.3d 264,

271   n.2   (4th   Cir.    2002)   (internal        quotation   marks   omitted).

Accordingly, we conclude that Rogers’s Ex Post Facto, Commerce

Clause, due process, and APA challenges to SORNA lack merit.

      We briefly consider Rogers’s remaining challenge, that in

enacting SORNA, Congress violated the non-delegation doctrine by

impermissibly delegating legislative functions to the Attorney

General,    namely,   the    discretion     to      determine   whether    SORNA’s

registration requirements would apply to sex offenders convicted

prior to SORNA’s enactment. Gould did not address this issue,

although    this   court    has,   in   two      non-precedential       decisions,

concluded     that    Congress      did       not     impermissibly       delegate

legislative authority to the Executive Branch. See United States

v. Stewart, Nos. 11-4420 & 11-4471, 2012 WL 130746, at *1 (4th

Cir. Jan. 18, 2012) (unpublished); United States v. Burns, 418

F. App’x 209, 211-12 (4th Cir. 2011) (unpublished).



                                        3
       “We    review       de    novo    a    properly      preserved      constitutional

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

2009). The non-delegation doctrine “is based on the principle of

preserving         the   separation          of   powers     between       the    coordinate

branches of government.” United States v. Ambert, 561 F.3d 1202,

1212    (11th       Cir.        2009).   While         Congress    may     delegate       some

functions to the Executive Branch, the Supreme Court has held

that where Congress has delineated an “intelligible principle”

guiding      the     exercise       of   that         authority,    the     non-delegation

doctrine is not offended. See 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 delegated authority.” Mistretta v. United States, 488 U.S.

361, 372–73 (1989) (internal quotation marks omitted).

       Rogers argues that there is no “intelligible principle” to

guide the Attorney General in the exercise of his discretion to

promulgate rules or otherwise to administer the application of

SORNA. This claim is without merit. We are satisfied that the

persuasive         reasoning       of    the      panels     in    Burns    and     Stewart,

although those decisions are not controlling, fully disposes of

the claim here. We agree with the views of the panels in Burns

and Stewart, noting Congress’s statement that SORNA’s purpose is

                                                  4
“‘to protect the public from sex offenders and offenders against

children’    through      ‘a    comprehensive             national    system       for    the

registration of those sex offenders.’” Burns, 418 F. App’x at

211 (quoting 42 U.S.C. § 16901). The Attorney General’s exercise

of discretion is adequately cabined by this clear statement of

purpose. Accord United States v. Guzman, 591 F.3d 83, 93 (2d

Cir.)    (concluding       that        the        Attorney     General’s          delegated

authority    is    “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),         cert.    denied,        130    S.     Ct.    3487    (2010);

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

(same); Ambert,      561    F.3d     at      1213–14      (same);     cf.    Reynolds       v.

United   States,    No.    10-6549,          2012    WL    171120,    ---    S.    Ct.     ---

(U.S. Jan. 23, 2012) (assuming validity of Attorney General’s

promulgation of rules under SORNA).



                                             II.

     Next,   Rogers       claims    that       the    district       court    abused      its

discretion when it imposed the following improper conditions of

supervised release: ordering him to submit to substance abuse,

mental health, and sex offender treatment programs (the latter

                                              5
coupled     with      random        polygraph            examinations).          “District       courts

have broad latitude to impose conditions on supervised release,

and so we review such conditions only for abuse of discretion.”

United      States      v.    Armel,             585    F.3d      182,    186    (4th     Cir.   2009)

(internal       quotation          marks          omitted).        The    sentencing       court    may

impose any condition that is reasonably related to the relevant

statutory       sentencing          factors,            which      include:       “the    nature    and

circumstances of the offense and the history and characteristics

of the defendant,” 18 U.S.C. § 3553(a)(1); providing “adequate

deterrence,” id. § 3553(a)(2)(B); “protect[ing] the public from

further      crimes,”         id.            §    3553(a)(2)(C);           and      providing       the

defendant       with     training,               medical         care,    or    treatment,       id.    §

3553(a)(2)(D). Armel, 585 F.3d at 186.

       The sentencing court must also ensure that the condition

“involves no greater deprivation of liberty than is reasonably

necessary”       to     afford          adequate         deterrence,           protect    the    public

from further crimes, and to provide the defendant with training,

care   or    treatment.            18    U.S.C.         §    3583(d)(2);         United    States      v.

Dotson, 324 F.3d 256, 260-61 (4th Cir. 2003). The conditions

must     also    be     consistent                with       Sentencing         Commission       policy

statements.        18    U.S.C.          §       3583(d)(3).        A    particular       restriction

does not require an “offense-specific nexus,” United States v.

Perazza-Mercado,             553    F.3d          65,       70   (1st     Cir.    2009),     but    the

sentencing court must adequately explain its decision and its

                                                        6
reasons for imposing the chosen conditions, Armel, 585 F.3d at

186.

       Guided by the above principles, our review of the record

leads     us    to    conclude     that      the      district        court        abused          its

discretion       in     its   imposition       as     a    condition          of       supervised

release    Rogers’s         participation        in    a    sex       offender          treatment

program        (and   the     related       requirement          of    random           polygraph

examinations). Here, the district court simply ordered in the

Judgment Order that, “The defendant shall participate in a sex

offender       treatment      program,      approved        by     the    U.S.          Probation

Office,”       and    that,     “The    defendant          shall      submit           to    random

polygraphs conducted by any person deemed appropriate by the

U.S.     Probation       Office    as   a    treatment          tool     to     be          used   in

conjunction with his sex offender treatment program.” J.A. 192.

       Although       the     presentence      investigation            report          indicated

that Rogers’s 1989 criminal sexual conduct conviction arose out

of the forcible rape of an adult female, there was no evidence

before    the     district      court   that     such      an    act     of    violence            has

characterized Rogers’s offense behaviors in the many years since

he was released from incarceration. Nor did the government argue

that such a condition was appropriate in the circumstances of

this case. The district court failed even to order that Rogers

first be professionally evaluated for the purpose of obtaining a

reliable       expert    opinion    whether        participation         in        a    treatment

                                             7
program for sexual offenders actually comported with the needs

of society or of Rogers himself. See United States v. Smith, 655

F.3d 839, 844, 847 (8th Cir. 2011) (sustaining imposition of

condition        requiring     defendant        convicted       solely     of    failure    to

register         to    “undergo     a    sex    offense-specific         evaluation        and

participate in a sex offender treatment and/or mental health

treatment program approved by the U.S. Probation Officer,” while

observing         that      passage      of    twelve     years     since        defendant’s

underlying            sex   offense      “might     not    by     itself        support    the

condition,”           and   ultimately        concluding    that    propriety        of    the

condition was “a close question”) (emphasis added). This failure

is in keeping with the court’s conclusory observation that “the

sex    offender         treatment       will   be   commensurate         with     what    [is]

appropriate in light of [this] defendant’s record,” J.A. 233,

which is an inadequate basis on which to rest the condition it

imposed.

       Even in light of the broad discretion afforded district

courts in their imposition of supervised release conditions, we

fail to see how a practice such as that followed here comports

with       the    necessity       of    reasonableness      in     the     imposition       of

conditions of release. *


       *
        Rogers separately challenges the requirement that he
submit to polygraph exams. It is apparent that the district
court coupled this requirement with the requirement that Rogers
(Continued)
                                                8
     We     are       persuaded    that    the      district      court      was    on    firmer

ground      as    to     its    imposition          of     the    remaining         challenged

conditions.        The    court       pointed       to    Rogers’s     prior       convictions

(including        a    conviction       for     armed      robbery)       to    support     its

conclusion        that    mental       health       treatment     is      appropriate.      The

district court relied on U.S. Sentencing Guidelines Manual §

5D1.3(D)(5), which states that “[i]f the court has reason to

believe     that       the   defendant        is     in    need   of      psychological      or

psychiatric treatment” then mental health treatment should be a

condition of supervised release. The court noted the age of the

prior     convictions,            but     stated          that    “if       [Rogers]       made

improvements in connection with those convictions, then those

who are experts can address that and determine what would be

appropriate        for    mental       health       treatment,       in     light    of   those

conditions on the record.” J.A. 236. We were advised by counsel

at   oral    argument          that     Rogers’s         objection     to      mental     health




participate in a sex offender treatment program. We specifically
addressed the use of polygraph examinations as a condition of
supervised release in Dotson, and upheld the use of polygraph
testing as a condition of supervised release, observing that 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.” 324 F.3d at 261. Nonetheless,
because we conclude that the blanket imposition of a sex
offender treatment program in the circumstances here constitutes
an abuse of discretion, we similarly strike the “random
polygraph” requirement.



                                                9
treatment is less than intense and that he has adjusted well to

supervision.      Given    the    district      court’s    broad    discretion,     we

decline to conclude that the court erred in this regard.

       Finally, Rogers suggests that there are “less restrictive”

options for drug testing that the court should have considered.

Appellant’s    Br.   40.    He    does   not     elaborate    as    to   what    those

options are, or why it was an abuse of the district court’s wide

latitude to decline to employ them. Therefore, we discern no

abuse of discretion as to the drug testing requirement.



                                         III.

       For the reasons set forth, we affirm the conviction and so

much   of   the    judgment       as   imposed     as     special   conditions      of

supervised release participation in a mental health and a drug

treatment program. We conclude, however, that the district court

abused its discretion in its singular reliance on a decades old

sexual assault conviction to order as a special condition of

supervised release that Rogers participate in a sex offender

treatment     program      (and    the    related       requirement      of     random

polygraphs). As to the latter, we vacate the judgment and remand

for the entry of a modified judgment striking those conditions

of supervised release.

                                                             AFFIRMED IN PART;
                                                  VACATED AND REMANDED IN PART


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