UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DARRELL EDWARD LYNCH, JR., Defendant - Appellant. No. 14-7057 (D.C. No. 6:13-CR -00081-JHP-1) (E.D. Oklahoma)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BACHARACH , and McHUGH , Circuit Judges.

________________ _________________

After examining the briefs and appellate record, this pane l has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument.
I. INTRODUCTION Darrell Edward Lynch, Jr., is a convicted sex offende r who failed to keep his registration current both while living in Ok lahoma and after he moved to Texas. He entered a conditional guilty plea, admitting that he violated the Sex Offender

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 8, 2015
Elisabeth A. Shumaker Clerk of Court2 Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a), but reserving four issues for appeal. Specifica lly, Mr. Lynch challenges hi s conviction on the grounds that SORNA violates the Commerce Clause , the Tenth Amendment, and the Ex Post Facto Clause of the U.S. Constitution, as well as the nond elegation doctrine. Consistent with our recent precedent, we hold that SORNA is the product of a valid exercise of Congress’ s Commerce Clause power and that it does not violate the Tenth Amendment, Ex Post Facto Clause, or the nondelegation doctr ine. We therefore affirm Mr. Lynch’s conviction.
II. BACKGROUND Mr. Lynch pleaded guilty on March 15, 1996, in Texas to committing an aggravated sexual assault on a child under the age of fourteen. On July 27, 2006, Congress passed the Sex Offender Regist ration and Notification Act (SORNA). On February 28, 2007, the U.S. Attorney General issued a rule extending the requirements of SORNA “to all sex offende rs, including sex offe nders convicted of the offense for which registration is require d prior to the enactme nt of that Act.” 28 C.F.R. § 72.3. Thus, alt hough Mr. Lynch committed his sex offense before SORNA was enacted, he is requir ed to comply w ith its registration requirements. After Mr. Lynch was released from pris on in 2002, he lived in Florida for a number of years and then moved to Okla homa. Mr. Lynch failed to update his sex offender registration to reflect his move to Oklahoma. When Mr. Lynch later moved to Texas, he again failed to update hi s sex offender registra tion. Mr. Lynch was subsequently indicted on one co unt of failing to register as a sex offender in violation3 of 18 U.S.C. § 2250(a)(1), (a)(2)(B), and (a)(3). Mr. Lynch moved to dismiss the indictment on the same grounds he now asse rts on appeal. The district court denied Mr. Lynch’s motion to dismis s, and Mr. Lynch then ente red a conditional guilty plea. Mr. Lynch now appeals fr om his conviction.
III. DISCUSSION Mr. Lynch has made four constituti onal arguments on appeal: that SORNA violates the Commerce Clause, the Tenth Am endment, the Ex Post Facto Clause, and the nondelegation doctrine. We review the district cour t’s denial of Mr. Lynch’s motion to dismiss the indictment on constitutional gr ounds de novo. See United
States v. Brune , 767 F.3d 1009, 1015 (10th Cir. 201 4). “As a part of our de novo review, however, we must presume th at the statute is constitutional.” Id. (internal quotation marks omitted). We may “invalidate a congres sional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” United States v.
Morrison , 529 U.S. 598, 607 (2000). Mr. Lynch first claims SORNA violat es the Commerce Cl ause by regulating inactivity. Although Mr. Lynch acknowledges that we rejected a Commerce Clause challenge to SORNA in United States v. Hinckley, 550 F.3d 926, 939–40 (10th Cir. 2008), abrogated on other gr ounds by Reynolds v. United States , 132 S. Ct. 975 (2012), he argues our decision has been s uperseded by the Supreme Court’s decision
in National Federation of Indepe ndent Business v. Sebelius , 132 S. Ct. 2566 (2012) ( NFIB ). After Mr. Lynch filed th is appeal, we addressed NFIB ’s effect on our Commerce Clause analysis in Hinckley. In United States v. White , we held that4 nothing in NFIB undermines our conclusion that SO RNA is a permissible exercise of Congress’s Commerce Clause pow er to regulate the channels of interstate commerce and the persons or things in interstate commer ce. No. 14-7031, slip. op. at 6–13 (10th Cir. Apr. 6, 2015). For the reasons stated in White , we reject Mr. Lynch’s claim that Congress exceeded its Co mmerce Clause power wh en it enacted SORNA. Second, Mr. Lynch claims SORNA violates the Tenth Amendment by directing state officials to implement a federally mandate d sex offender registry. We also addressed this argument in White , holding that SORNA does not violate the Tenth Amendment. Id. at 14–17. There, we declined to make the same inference Mr. Lynch asks us to draw here: that, simp ly because Oklahoma ha s not substantially implemented SORNA and there is no fede rally run system fo r registering sex offenders, Oklahoma officials are unconstitutionally forced to administer the federal registration program. Id. at 15–16. Instead, we reject Mr. Lynch’s Tenth Amendment argument for the same reasons stated in White —nothing in SORNA compels a state officer to implement a federal registry. Id. at 16. Third, Mr. Lynch claims SORNA’s requi rement that pre-Act sex offenders register violates the Ex Po st Facto Clause by increasing the punishment for a past offense. We upheld SORNA in the face of an Ex Post Facto Clause challenge in United States v. Lawrance , 548 F.3d 1329 (10th Cir. 2008) . There we explained that SORNA is a regulatory statut e and any criminal penaltie s attach only to future failures to register. Id. at 1332–36; see also White , No. 14-7031, slip op. at 13–14. One panel of this court cannot overrule the judgment of another panel “absent en5 banc consideration . . . [or] an intervening Supreme Court d ecision that is contrary to or invalidates our previous analysis.” United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014) (internal quotation marks omitted). Mr. Lynch does not claim that either exception to our horizont al stare decisis rule is pres ent. We therefore reject his ex post facto challenge to SORNA. Fourth, Mr. Lynch claims his convicti on should be vacated because Congress unconstitutionally delegated to the Attorn ey General the authority to determine whether pre-Act sex offenders must comply with SORNA. But Mr. Lynch’s argument is again precluded by a recent decision of this court. After th e parties finished briefing this case, we addr essed whether Congress cons titutionally delegated this question to the Attorney General. In United States v. Nichols , 775 F.3d 1225 (10th Cir. 2014), we upheld SORNA in the face of a nondelegation challenge because we concluded that Congress ha d laid down an intellig ent principle governing the Attorney General’s decision. Id. at 1230–32. For the reasons stated in Nichols , we hold Congress did not unconstitutionally de legate its legisla tive powers to the attorney general under SORNA.
IV. CONCLUSION We AFFIRM Mr. Lynch’s conviction for failu re to register in violation of 18 U.S.C. § 2250(a).

Entered for the Court
Carolyn B. McHugh Circuit Judge