12

- 3148

- cr United States v. Robbins 1
2 UNITED STATES COURT OF APPEALS 3
4 FOR THE SECOND CIRCUIT 5
6
7 8 August Term, 20 1 3 9 ( Argued : June 20 , 201 3 Decided: September 3 , 2 01 3 ) 10
11 Docket No

. 12

- 3148

- cr 12
13
14 15 UNITED STATES OF AME RICA , 16
17 Appellee , 18 19

– v.

– 20
21 NATHAN ROBBINS , 22 aka Nathan L.H. Robbins, 23
24 Defendant

- Appellant

. 25
26
27
28 Before: CALABRESI, CABRANES , and SACK , Circuit Judges

. 29
Appeal from a n August 3 , 2012 judgment convicting defendant

- appellant 30
Nathan Robbins for failing to register under SORNA, the Sex Offender 31
Registration and Notification Act, in violation of 18 U.S.C. § 2250(a). Robbins 32

chall enges SORNA as unconstit utional in light of the Supreme Court’s decision in 33
National Federation of Independent Business v. Sebelius , 132 S. Ct. 2566 (2012). Because 34– 2

–

SORNA, at least as applied to Robbins, regulates activity involving travel in 1
interstate commerce, we AFFIRM. 2
JAMES P. EGAN ( Lisa A. Peebles
, on the brief ) 3 Federal Public Defender’s Office, No r thern 4 District of New York, Syracuse, N.Y.
, for 5 Defendant

- Appellant

. 6
7 BRENDA K. SANNES, Assistant United States 8 Attorney (Lisa M. Fletcher, Assistant United 9 States Attorney, on the brief )
, for Richard S. 10 Hartunian, United States Attorney, Northern 11 District of New York, Syracuse, N.Y., for Appellee

. 12
13
14 CALABRESI, Circuit Judge : 15
In August 2011, after traveling from New York to Nevada, defendant

16
appellant Nathan Robbins knowingly failed to update his registration as a sex 17

offender
, as he was required to do under the Sex Offender Registration and 18
Notification Act (“SORNA”), 42 U.S.C. § 169 13 . He subsequently pled guilty to 19
violating 18 U.S.C. § 2250(a), which makes it a crime for someone who is required 20
to register under SORNA to travel in interstate commerce and knowingly fail to 21
update his registration. Despite his plea, Robbins retained the right to challenge the 22
constitutionality of the statutes he ad mitted violating, and he brings just such a 23
challenge here. 24

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

the Constitution’s Commerce Clause when it enacted SORNA. See United States v. 26– 3

–

Guzman , 5 91 F.3d 83 (2d Cir. 2010). S ince then, however, the Supreme Court has 1

revisited and further clarified

— if that is the appropriate word

— the reach of 2
Congress’s power “[t]o regulate Commerce .

. . among the several States.” U.S. 3

Const. art. I, § 8, cl. 3; see Nat’l Fed’n of Indep. Bus. v. S ebelius , 132 S. Ct. 2566 (2012) 4
(“ NFIB ”). Robbins invites us to revisit our holding in Guzman in light of the 5
Supreme Court’s decision in NFIB

. 6
We decline Robbins’ invitation not because his arguments all lack force , nor 7
because the constitutionality of SORNA

— particularly when applied within the 8

states

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

- 418, 9
slip op. at 5 (U.S. June 24, 2013) (Roberts, C.J. , concurring in the judgment) (“The 10
fact of a prior federal conviction, by itse lf, does not give Congress a freestanding, 11
independent, and perpetual interest in protecting the public from the convict’s 12
purely intrastate conduct.”) , but because the constitutionality of SORNA as applied 13

to Robbins remains un affected by any limitations on Congress’s Commerce Clause 14
power that may be found in NFIB . Still b ound by the precedent set in Guzman , we 15

therefore AFFIRM Robbins’ conviction. 16

17

BACKGROUND 18

A. 19
In July 2003, Robbins pled guilty to a state charge of sexual misconduct for 20
having sex with a sixteen

- year - old girl when he was twenty

- four. New York 21– 4

–

designated Robbins a sexual offender, and Robbins complied with the resulting 1
registration requirements until June 2011. 2
During that time, however, Robbi ns again ran afoul of the law . I n October 3
2010, he was convicted and sentenced to probation for fourth degree grand larceny, 4
second degree criminal contempt, and petit larceny. As a condition of his 5
probation, Robbins was required to stay in a residence approved by his probation 6

offic er. But in August 2011, he tested positive for drug use and was evicted from the 7
approved residence. A county court in New York issued a warrant on August 11 for 8

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

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

m arshal who arrested him that he knew about his obligation to register as a sex 11
offender, but had not done so because he knew that a warrant had been issued for 12

his arrest

. 13
Robbins was indicted in the Northern District of New York for having 14
traveled in interstate commerce and knowingly failed to update his registration as 15
required under SORNA. 18 U.S.C. § 2250(a); 42 U.S.C. § 16913. Robbins moved 16
to dismiss the indictment, c laiming tha t Congress lacked the constitutional 17
authority to impose SORNA’s requirements and penalties . On March 1, 2012, the 18
district court (Norman A. Mordue, Judge ) denied Robbins’ motion. Robbins 19
subsequently pled guilty, though he reserved the right to appeal the district court’s 20– 5

–

denial of his constitutional challenge. On July 26, 2012, the district court sentenced 1
Robbins to 30 months’ imprisonment

— a term he is currently serving. 2

B. 3
SORNA, which was enacted in 2006, includes two provisions that are 4

cha llenged in the present case. 5
First, the registration requirement of 42 U.S.C. § 16913 requires that a sex 6
offender “register, and keep the registration current, in each jurisdiction where the 7
offender resides, where the offender is an employee, and where t he offender is a 8

student.” Id. § 16913(a). Designated sex offenders must update their registration 9
“not later than 3 business days after each change of name, residence, employment, 10
or student status” by appearing in person in one of the jurisdictions where they live, 11
work, or study. Id. § 16913(c). 12
Second, SORNA ’s criminal enforcement provision, 18 U.S.C. § 2250(a), 13

dictates that: 14

Whoever

— 15 (1) is required to register under the Sex Offender Registration 16 and Notification Act; 17 (2) (A) is a sex offender as defined for the purposes of the Sex 18 Offender Registration and Notification Act by reason of a 19 conviction under Federal law (including the Uniform Code 20 of Military Justice), the law of the District of Columbia, 21 Indian tribal law, or th e law of any territory or poss ession 22 of the United States; or 23 (B) travels in interstate or foreign commerce, or enters or 24 leaves, or resides in, Indian country; and 25– 6

– (3) knowingly fails to register or update a registration as 1 required by the Sex Offender R eg istration and Notification 2 Act; 3 shall be fined under this title or imprisoned not more than 10 years, 4 or both

. 5
6 Id. 7 We consider de novo the constitutionality of these statutory provisions. See 8
United States v. Weingarten , 632 F.3d 60, 63

- 64 (2d Cir. 2011). 9

10

DISCUSSION 11
Though Robbins disputes the continued validity of United States v. Guzman , 12
no one denies that case’s applicability to the present matter. In Guzman , this Court 13
rejected constitutional challenges to §§ 2250 (a) and 16913 brought by two 14

def

endants whose convictions mirror those of Robbins ’ in all relevant respects

. We 15
began in Guzman by recounting Congress’s three categories of power under the 16
Commerce Clause, as described by the Supreme Court in United States v. Lopez , 514 17
U.S. 549 (1995): 18
(1) “[to] regulate the use of the channels of interstate commerce”; (2) 19 “to regulate and protect the instrumentalities of interstate commerce, 20 or persons or things in interstate commerce, even though the threat 21 may come only from intrastate activities”; an d (3) “to regulate those 22 activities having a substantial relation to interstate commerce.” 23
24 Guzman , 591 F.3d at 89 (quoting Lopez , 514 U.S. at 558

- 89 )

. This Court had little 25
trouble concluding that § 2250(a) , insofar as it ties criminal liability to interstate 26– 7

–

travel, falls under both the first and second of the Lopez categories, and thus 1
constitutes a valid exercise of Congressional power. 1 Id. at 90. 2
The registration requirement of § 16913 presented a somewhat closer 3

question

— indeed
, the district court in Guzman found that since § 16913 requires 4
initial registration and updates by state offenders who move within their state’s 5
borders, it exceeds Congress’s Commerce Clause powers. This Court held, howeve r, 6
that § 16913 and § 2250 (a) ha ve to be considered in tandem, because the former 7
gives the latter substance, while the latter gives the former teeth. Cf. id. at 90. The 8

in trastate registration requirements of § 16913 are necessary and proper
, we held
, as 9
they comprise “a perfectly logical way to help ensure that states will more effectively 10
be able to track sex offenders when they do cross state lines.” Id. at 91. 11

Given this clear and recent precedent , there would seem to be nothing left to 12
say in the cas e currently before us. But Robbins

— recognizing that “if there has been 13
an intervening Supreme Court decision that casts doubt on our controlling 14

1 Guzman also mentioned, and seemingly approved of, § 2250(a)’s alter nati ve 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 applicabil ity 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 t he 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.– 8

–

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

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

— urges us 2

to revisit Guzman in light of NFIB , the Supreme Court’s fractured decision on the 3
constitutionality of the Affordable Care Act. See NFIB, 132 S. Ct. 2566 (2012). 4
Robbins’ is not the first challenge to an application of SORNA that this 5

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

- 6
2115, _ F.3 d _, 2013 WL 4033847 (2d Cir. Aug. 9, 2013), we considered the 7
application of SORNA to Kenneth Brunner, who had been convicte d of a sex 8

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

thereafter failed to comply with SORNA’s registration requirements . We upheld the 10
judgment sentencing Brunner to six months’ imprisonment pursuant to § 2250(a) 11

und er the Constitution’s Military Reg ulation Clause and Necessary and Proper 12

Clause

. Id. at *3

- 4. I nterestingly
, Brunner also argued that his sentence violated the 13
Ex Post Facto Clause of the Constitution, and we concluded that his argument was 14

“ foreclosed by our Court’s decision in United States v. Guzman ”

— a c onclusion that 15
would appear to signal that Guzman remains good law

— at least in part

— even after 16

NFIB

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

from the one brought by Brunner

— who was convicted of a federal offense under the 18
U.C.M.J. and had not travelled in interstate commerce , and whose conviction was 19
upheld also on the basis of the Constitution’s Military Regulation Clause

— we 20

consider it here. 21– 9

–

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

Clause as to undermine the holding of Guzman encounters an early obstacle: NFIB 2
may not say anything binding about the Commerce Clause at all. It is not clear 3

whether any thing said about the Commerce Clause in NFIB ’s primary opinion

— that 4
of Chief Justice Roberts

— is more than dicta, since Part III

- A of the Chief Justice’s 5
opinion was not joined by any other Justice and, at least arguably, discussed a 6
bypassed alternative
, rather than a necessary step, in the Court’s decision to uphold 7

the Act. See NFIB , 132 S. Ct. at 2585

- 93; United States v. Henry , 688 F.3d 637, 641 8
n.5 (9th Cir. 2012) (“There has been considerable debate about whether the 9
statements about the Commerce Clause [in NFIB ] are dicta or binding pr ecedent.” ); 10

see also United States v. Roszkowski , 700 F.3d 50, 58 n.3 (1st Cir. 2012) (declining to 11
decide “whether the Chief Justice’s Commerce Clause discussion was indeed a 12
holding of the Court”). But cf. Grutter v. Bollinger , 539 U.S. 306, 323 (2003) (noting 13
that Justice Powell’s opinion announcing the judgment of the Court in Regents of 14
University of California v. Bakke , 438 U.S. 265 (1978), although failing to command a 15
majority of the Court, “has served as the touchstone f or constitutional analysis of 16

race - conscious admissions policies”). 17
Fortunately, w e can avoid sorting holding’s wheat from dicta’s chaff simply 18
by assuming for the sake of argument that the Chief Justice’s statements with regard 19

to commerce in NFIB consti tute holdings and stand for exactly what Robbins says 20
they do. In particular, Robbins derives four relevant propositions from the opinion 21– 10

–

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

authored dissent. See NFIB , 132 S . Ct. at 2642

- 50 (Scalia, Kennedy, Thomas, and 2
Alito, JJ. , dissenting). First, the Commerce Clause does not give Congress the power 3
to regulate inactivity. Second, Congress cannot regulate conduct today based on 4
activity predicted tomorrow. Third, the federal government does not have “[a]ny 5
police power to regulate individuals as such, as opposed to their activities.” NFIB , 6
132 S. Ct. at 2591 ( Roberts, C.J. ). Fourth, the Necessary and Proper Clause does 7
not add any “ ‘ great substantive and independent ’ ” federal powers to those 8

enumerated in the Constitution. Id. at 2591 (quoting McCulloch v. Maryland , 17 9
U.S. (4 Wheat.) 316, 411 (1819)). 10

A ssuming the accuracy of these propositions arguendo , we still find in them 11
nothing that helps Robbins ’ cause . Robbins argues that SORNA ’s registration 12

provision regulates inactivity, impermissibly compelling conduct that is non

13

economic in nature. But unlike the uninsured in NFIB , the sex offenders who are 14
subjected to SORNA’s requirements have all, in a sense, “opted in” to the regulated 15
group through their prior criminal activity. See United States v. Cabrera

- Gutierrez , 718 16
F.3d 873, 879 (9th Cir. 2013). And more significantly , whatever else SORNA might 17

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

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 regulati on of inactivity.” Reply Br. at 2. We offer no– 11

–

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

to Robbins, then, § § 16913 and 2250(a) not only regulate activity, but activity that 2
directly employs the channels of interstate commerce. 3

Robbins’ most plausible argument is his claim that § 2250 (a) , despite its 4
interstate travel provision, does not actually regulate interstate travel, but rather 5
something which occurs (or not) in the three days after such travel. To criminalize a 6
failure to register one’ s address in the days following interstate travel is not to 7
regulate the travel itself, Robbins argues. Robbins observes that, in contrast to 8

§ 2250 (a)
, other federal criminal statutes invol ving interstate travel require criminal 9
intent or purpose at the t ime of travel; under those statutes , though not under 10

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

— and we do not decide that here

— it is 12
an argument foreclosed by Guzman , which held in no uncertain terms that 13

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

Guzman , 591 F.3d at 90. The Guzman Court may not have explicitly considered how 15
long after travel the federal government’s p eriod of regu lation may extend

— when, in 16
other words, travel ends and inactivity begins

— but since that is a question which 17

NFIB does not itself address, we cannot say that any intervening decision of the 18
Supreme Court undermines the reasoning behind our settled preceden t. At least 19

opinion on this argument because Robbins

— whose conviction does not rest on either of these requirements

— lacks standing to raise it

.– 12

–

insofar as SORNA applies to an interstate traveler such as Robbins, we remain 1
bound by Guzman ’s conclusion that SORNA “is a legitimate exercise of 2
congressional Commerce Clause authority.” Id. 3

4

CONCLUSION 5
For the foregoing reasons, we again find SORNA constitutional

— at least as 6
applied to those, like Robbins , whose failure to register follows interstate travel

— and 7
therefore AFFIRM the judgment of the district court. 8