                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-1165
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Allon Anderson

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                      Appeal from United States District Court
                  for the Western District of Arkansas - Ft. Smith
                                  ____________

                          Submitted: November 10, 2014
                            Filed: November 17, 2014
                                  ____________

Before BYE, SHEPHERD, and KELLY, Circuit Judges.
                           ____________

BYE, Circuit Judge.

      Allon Anderson was indicted with failing to register as a sex offender.
Anderson filed a motion to dismiss the indictment arguing, in part, the Sex Offender
Registration and Notification Act (SORNA) violates the Commerce Clause. After the
district court1 denied Anderson's motion to dismiss, Anderson entered a conditional
guilty plea and was sentenced to 30 months of imprisonment. Anderson appeals the
denial of his motion to dismiss. We affirm.

                                           I

       Anderson was convicted of failing to register as a sex offender in violation of
18 U.S.C. § 2250(a)(2)(B), which punishes individuals who travel in interstate
commerce and thereafter fail to register as a sex offender pursuant to 42 U.S.C.
§ 16913. Anderson had previously been convicted of aggravated indecent solicitation
of a child in Kansas in 2009 which required him to register as a sex offender under 42
U.S.C. § 16913. Anderson properly registered in Kansas in 2012. Thereafter for the
purpose of working, Anderson relocated to Oklahoma, and later Arkansas, in 2012,
which triggered a requirement to update his registration under § 16913(c). Anderson
failed to ever register as a sex offender in Arkansas. After being indicted in federal
court for his failure to register, Anderson filed a motion to dismiss the indictment
arguing the registration requirements of SORNA violate the Commerce Clause and
the nondelegation doctrine of the United States Constitution and the Eighth Circuit
had erred in holding otherwise. The district court denied the motion, and Anderson
thereafter entered a conditional plea of guilty. On appeal, Anderson renews his
Commerce Clause arguments regarding the constitutionality of SORNA.

                                           II

       "We review a challenge to the constitutionality of a federal statute de novo."
United States v. Betcher, 534 F.3d 820, 823 (8th Cir. 2008). "[I]t is a cardinal rule in
our circuit that one panel is bound by the decision of a prior panel." Id. (internal


      1
        The Honorable P.K. Holmes, III, United States District Judge for the Western
District of Arkansas.

                                          -2-
citation and quotation marks omitted). This rule, however, does not apply when the
earlier panel decision is cast into doubt by an intervening Supreme Court decision.
United States v. Williams, 537 F.3d 969, 975 (8th Cir. 2008). Likewise, we review
de novo the denial of a motion to dismiss an indictment. United States v. Yielding,
657 F.3d 688, 702 (8th Cir. 2011).

       Federal courts have "a general reticence to invalidate the acts of the Nation's
elected leaders" and "'[p]roper respect for a coordinate branch of the government'
requires that [a federal court] strike down an Act of Congress only if 'the lack of
constitutional authority to pass [the] act in question is clearly demonstrated.'" Nat'l
Fed'n of Indep. Buss. v. Sebelius, 132 S. Ct. 2566, 2579 (2012) (quoting United States
v. Harris, 106 U.S. 629, 635 (1882)); see also United States v. Morrison, 529 U.S.
598, 607 (2000) (requiring a "plain showing" Congress has exceeded its constitutional
bounds before a federal court can invalidate a congressional enactment).

       As relevant to Anderson's appeal, SORNA, enacted in July of 2006, makes it
a crime for a person (1) "who is required to register under the [Act]" and (2) who
"travels in interstate . . . commerce" to (3) knowingly "fail[] to register or update a
registration." 18 U.S.C. § 2250(a). A sex offender is required to register in each
jurisdiction he resides, works, or studies. 42 U.S.C. § 16913(a). Anderson argues the
Supreme Court's decision in National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566, concerning the constitutionality of the Patient Protection and
Affordable Care Act, renders SORNA's registration requirement and enforcement
thereof to be violative of the Commerce Clause. Thus, Anderson believes both 18
U.S.C. § 2250(a)(2)(B) and 42 U.S.C. § 16913 are unconstitutional.

                                          A

       Prior to National Federation, we concluded 42 U.S.C. § 16913 was
constitutional in United States v. Howell, 552 F.3d 709, 717 (8th Cir. 2009). In

                                         -3-
Howell we found the registration requirements of § 16913 are valid under the
Commerce Clause and the Necessary and Proper Clause as the requirements are
intended to regulate the interstate movement of sex offenders and "§ 16913 is an
'appropriate aid to the accomplishment' of tracking the interstate movement of sex
offenders." Id. (quoting United States v. Darby, 312 U.S. 100, 121 (1941)).

       We began Howell by recounting Congress's three categories of Commerce
Clause power as described by the Supreme Court in United States v. Lopez, 514 U.S.
549 (1995). The Commerce Clause empowers Congress: (1) "[to] regulate the use
of the channels of interstate commerce;" (2) "to regulate and protect the
instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities;" and (3) "to regulate
those activities having a substantial relation to interstate commerce, i.e., those
activities that substantially affect interstate commerce." Id. at 558-59 (internal
citations omitted). The Supreme Court entertains four further considerations to
determine whether a regulation is valid under the third category: (1) whether the
regulated activity is economic in nature; (2) whether the statute contains an express
jurisdictional element linking its scope in some way to interstate commerce; (3)
whether Congress made express findings regarding the effects of the regulated activity
on interstate commerce; and (4) the attenuation of the link between regulated activity
and interstate commerce. Morrison, 529 U.S. at 611-12.

       In Howell we recognized § 16913 "contains no jurisdictional element" placing
it within the first or second prong of Lopez and there is little evidence that intrastate
sex offender registration substantially affects interstate commerce. Howell, 552 F.3d
at 715. However, in interpreting § 16913 in conjunction with 28 U.S.C. § 2250(a)(2),
we determined Congress's focus on the interstate movement of sex offenders was
substantial enough to find SORNA valid under the Commerce Clause and the
Necessary and Proper Clause, and that the registration requirements of § 16913 are "a
reasonable means to track those offenders if they move across state lines." Id. at 717.

                                          -4-
In Howell, we applied Justice Scalia's articulation of the Commerce Clause in
Gonzales v. Raich, 545 U.S. 1, 22 (2005) (upholding Congress's authority to regulate
intrastate production and consumption of marijuana as a necessary and proper
extension of Congress's authority to regulate the interstate market for the drug):

      [T]he authority to enact laws necessary and proper for the regulation of
      interstate commerce is not limited to laws governing intrastate activities
      that substantially affect interstate commerce. Where necessary to make
      a regulation of interstate commerce effective, Congress may regulate
      even those intrastate activities that do not themselves substantially affect
      interstate commerce.
      ...
      The regulation of an intrastate activity may be essential to a
      comprehensive regulation of interstate commerce even though the
      intrastate activity does not itself "substantially affect" interstate
      commerce. Moreover, . . . Congress may regulate even noneconomic
      local activity if that regulation is a necessary part of a more general
      regulation of interstate commerce. The relevant question is simply
      whether the means chosen are "reasonably adapted" to the attainment of
      a legitimate end under the commerce power.

Id. at 34-37 (Scalia, J., concurring) (internal citations omitted). While doubting the
constitutionality of § 16913 under the Commerce Clause alone, we concluded "the
enabling necessary and proper clause reveals the statute is constitutionally
authorized." Howell, 552 F.3d at 715. Anderson argues Howell is no longer good law
after National Federation.




                                          -5-
       In National Federation, Chief Justice Roberts2 acknowledged the Commerce
Clause permits Congress to regulate intrastate activities which have a substantial
effect on interstate commerce but concluded Congress may not regulate economic
activity by compelling it. 132 S. Ct. at 2586-87. Chief Justice Roberts reasoned the
individual mandate could not be upheld under the Commerce Clause because:

      The individual mandate . . . does not regulate existing commercial
      activity. It instead compels individuals to become active in commerce
      by purchasing a product, on the ground that their failure to do so affects
      interstate commerce. Construing the Commerce Clause to permit

      2
        The issues in National Federation resulted in a split decision, and there is no
controlling opinion on the issue of whether provisions of the Affordable Care Act
violated the Commerce Clause. See United States v. Robbins, 729 F.3d 131, 135 (2d
Cir. 2013) ("It is not clear whether anything said about the Commerce Clause in
NFIB's primary opinion–that of Chief Justice Roberts–is more than dicta, since Part
III-A of the Chief Justice's opinion was not joined by any other Justice and, at least
arguably, discussed a bypassed alternative, rather than a necessary step, in the Court's
decision to uphold the Act."). Chief Justice John Roberts wrote alone, finding the
individual mandate of the Affordable Care Act in imposing a minimum essential
coverage requirement under which individuals must purchase and maintain health
insurance coverage exceeded Congress's power under the Commerce Clause and the
Necessary and Proper Clause, but was constitutional under Congress's taxing
authority. 132 S. Ct. at 2592, 2594. Justices Scalia, Kennedy, Thomas, and Alito
filed a dissent, and Justice Thomas wrote a separate dissent, also concluding that the
Affordable Care Act violated the Commerce Clause. Id. at 2644 (joint opinion of
Scalia, J., Kennedy, J., Thomas, J., Alito, J., dissenting); id. at 2677 (Thomas, J.,
dissenting). We cannot read the conglomeration of the dissenting opinion of four
Justices combined with the concurring opinion of the Chief Justice to constitute
binding precedent interpreting the Commerce Clause. However, we apply the opinion
of Chief Justice Roberts because it articulates the narrowest grounds for upholding the
individual mandate. Marks v. United States, 430 U.S. 188, 193 (1977) ("When a
fragmented Court decides a case and no single rationale explaining the result enjoys
the assent of five Justices, 'the holding of the Court may be viewed as that position
taken by those Members who concurred in the judgments on the narrowest grounds.'"
(quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976))).

                                          -6-
      Congress to regulate individuals precisely because they are doing
      nothing would open a new and potentially vast domain to congressional
      authority. Every day individuals do not do an infinite number of things.
      In some cases they decide not to do something; in others they simply fail
      to do it. Allowing Congress to justify federal regulation by pointing to
      the effect of inaction on commerce would bring countless decisions an
      individual could potentially make within the scope of federal regulation,
      and–under the Government's theory–empower Congress to make those
      decisions for him.

Id. at 2587. Since "[t]he individual mandate forces individuals into commerce
precisely because they elected to refrain from commercial activity," it "cannot be
sustained under a clause authorizing Congress to 'regulate Commerce.'" Id. at 2591.

       Chief Justice Roberts also determined the individual mandate could not be
sustained under the Necessary and Proper Clause because the individual mandate was
not "'incidental' to the exercise of the commerce power." Id. at 2592 (quoting
McCulloch v. Maryland, 17 U.S. 316, 418 (1819)). The government had argued the
Supreme Court did not have to consider the effect of inactivity on interstate commerce
because it was sufficient that Congress regulated commercial activity in a manner
which required the government to regulate inactivity. Id. at 2591-93; see Raich, 545
U.S. at 22. In dispensing of the government's argument, the Chief Justice
distinguished Raich by holding the issue presented in Raich only concerned the
constitutionality of "'individual applications of a concededly valid statutory scheme,'"
Nat'l Fed'n, 132 S. Ct. at 2593 (quoting Raich, 545 U.S. at 23), whereas the individual
mandate allows "Congress [to] reach beyond the natural limit of its authority and draw
within its regulatory scope those who otherwise would be outside of it," id. at 2592.
In other words, any law upheld under the Necessary and Proper Clause must "involve
exercises of authority derivative of, and in service to," a separate power granted to
Congress. Id. at 2592.




                                          -7-
       With regard to the constitutionality of § 16913, National Federation forces us
to determine what remains of Raich, and whether the rationale of the Eighth Circuit
in Howell remains valid. Chief Justice Roberts' opinion left intact Raich's key
holding: Congress may regulate economic intrastate activity when doing so is a
necessary component of a comprehensive interstate regulation. Raich, 545 U.S. at 22.
Chief Justice Roberts also interpreted the Necessary and Proper Clause as allowing
regulations which are "essential component[s]" of proper federal action, or regulations
which are "derivative of, and in service to, a granted power." Nat'l Fed'n, 132 S. Ct.
at 2592.

       Reading Raich and the Necessary and Proper Clause together, we believe
Howell correctly decided that even if the constitutionality of § 16913 is doubtful
under the Commerce Clause alone, "the enabling necessary and proper clause reveals
the statute is constitutionally authorized" because the registration requirements of
§ 16913 are part of the constitutional power Congress has to punish sex offenders who
cross state lines. 552 F.3d at 715. Because Congress has the power to punish sex
offenders who cross state lines, Congress is able to exercise the "narrow" and
"incidental" power of requiring those sex offenders to register. Nat'l Fed'n, 132 S. Ct.
at 2592. "That the regulation ensnares some purely intrastate activity is of no
moment. As we have done many times before, we refuse to excise individual
components of that larger scheme." Raich, 545 U.S. at 22. We read the registration
requirement of § 16913 as necessary to the effectuation of the broader SORNA
scheme and therefore a legitimate exercise of congressional power under the
Necessary and Proper Clause. See Howell, 552 F.3d at 716; see also United States v.
Cabrera-Gutierrez, 756 F.3d 1125, 1131-32 (9th Cir. 2014). The registration
requirement is a valid exercise of the Commerce Clause, and Anderson has not
"clearly demonstrated" the lack of constitutional authority for Congress to enact
§ 16913. See Nat'l Fed'n, 132 S. Ct. at 2579.




                                          -8-
                                           B

       Prior to National Federation, we also found § 2250(a)(2)(B) constitutional in
United States v. May, 535 F.3d 912, 921 (8th Cir. 2008). In May, we determined,
because § 2250(a)(2)(B) requires the government to prove a defendant traveled in
interstate commerce and thereafter failed to register, § 2250(a)(2)(B) "derives its
authority from each prong of Lopez—and most specifically, the ability to regulate
'persons or things in interstate commerce' and 'the use of the channels of interstate
commerce.'" Id. (quoting Lopez, 514 U.S. at 558). We concluded that even if
§ 2250(a)(2)(B) were distinguishable from Raich, and thus not constitutional under
the third Lopez prong, "SORNA would still remain valid under the first two interstate
commerce jurisdictional prongs." Id. at 922. Anderson argues May is no longer good
law after National Federation.

        Nothing in National Federation calls into question the analysis of May in regard
to the jurisdictional hook of § 2250(a)(2)(B) which requires interstate travel before the
federal government can punish a sex offender's failure to register. The enforcement
of registration under § 2250(a)(2)(B) is distinguishable from the Affordable Care Act.
Unlike the individual mandate of the Affordable Care Act, which "vest[ed] Congress
with the extraordinary ability to create the necessary predicate to the exercise of an
enumerated power," the § 2250(a)(2)(B) registration enforcement–applicable to prior
sex offenders who have traveled in interstate commerce–only applies to "those who
by some preexisting activity bring themselves within the sphere of federal regulation."
Nat'l Fed'n, 132 S. Ct. at 2592. We conclude the enforcement of the registration
requirement is a valid exercise of the Commerce Clause, and Anderson has not
"clearly demonstrated" the lack of constitutional authority for Congress to enact
§ 2250(a)(2)(B). See id. at 2579; see also United States v. Robbins, 729 F.3d 131, 136
(2d Cir. 2013) (upholding constitutionality of § 2250(a)(2)(B) post National
Federation because sex offenders have "opted in" to the regulated group through prior
criminal activity and thereafter crossing state lines).

                                          -9-
                            III

Accordingly, we affirm the conviction.
               ______________________________




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