[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 14-10143

Non-Argument Calendar

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D.C. Docket No. 6:13-cr-00126-GAP-TBS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

LEE THOMAS RIVERS, 

a.k.a. Lee Thomas Rivers, Jr., 

a.k.a. Lee Thomas River, Jr., 

 Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Middle District of Florida

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(October 15, 2014)

Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Defendant Lee Thomas Rivers is a sex offender subject to the registration 

requirements of the Sex Offender Registration and Notification Act (“SORNA”). 

He appeals the district court’s denial of his motion to dismiss the charges against 

him for failing to register and update his registration as required by SORNA, in 

violation of 18 U.S.C. § 2250(a). Rivers argues that SORNA is unconstitutional 

because it exceeds the scope of Congress’s commerce authority in light of the 

Supreme Court’s decision in National Federation of Independent Buiness. v. 

Sebelius, 567 U.S. ___, 132 S. Ct. 2566 (2012) (“NFIB”), and because it violates 

the Ex Post Facto Clause and the non-delegation doctrine. After careful review, 

we affirm.

I.

The essential factual history is not disputed. Rivers was convicted in South 

Carolina in 1991 of criminal sexual conduct with a minor and sentenced to 16 

years’ incarceration. In December 2008, Rivers signed a sex-offender registration 

form in South Carolina, acknowledging that if he moved to another state, he must 

timely notify local authorities in South Carolina, register with the new state, and 

abide by the new state’s reporting requirements. Rivers signed a similar form in 

South Carolina in August 2009. 

In 2010, Rivers moved to Florida without updating his sex-offender 

registration. He was arrested in Florida in October 2010 on a warrant out of South 

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Carolina for failure to register as a sex offender and failure to appear on those 

charges. Florida authorities compelled Rivers to register as a sex offender in 

Florida at that time. The form that Rivers signed in Florida advised him that he 

had up to 48 hours to report any changes of address to local authorities and that he 

was required to update his registration twice a year for the rest of his life. 

In December 2010, Rivers returned to South Carolina, pled guilty to failing 

to register as a sex offender, and was sentenced to thirty days in jail. Rivers signed 

another sex-offender registration form in South Carolina in March 2012. This 

form included additional language stating that if Rivers moved to another state 

without updating his registration, he would be subject to federal prosecution under 

18 U.S.C. § 2250. 

At some point in 2012, Rivers moved from South Carolina to Ocoee, 

Florida. From Ocoee he moved to Winter Garden, Florida. He did not register in 

Florida or update his registration in South Carolina to reflect the moves. Rivers

was arrested in April 2013 in Windermere, Florida, where he had been working. 

After his arrest, Rivers admitted to knowing that he was required to register but

stated that he did not do so because he did not want his girlfriend to find out that he 

was a sex offender. 

Rivers was charged in a federal indictment filed in the United States District 

Court for the Middle District of Florida with traveling in interstate commerce to 

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Florida from South Carolina and failing to keep his registration current under 

SORNA, in violation of § 2250. He moved to dismiss the indictment, arguing that 

the charges were improper because the Supreme Court’s decision in NFIB

effectively overruled this Court’s decision in United States v. Ambert, 561 F.3d 

1202 (11th Cir. 2009), which had upheld SORNA’s constitutionality against 

various challenges, including that SORNA exceeded the scope of Congress’s

commerce authority. Rivers also raised challenges to SORNA under the Ex Post 

Facto Clause, U.S. Const. art. I, § 9, cl. 3, and the non-delegation doctrine. The 

district court denied the motion to dismiss. 

Soon thereafter, Rivers sought to enter a conditional plea of guilty that 

would allow him to preserve the right to appeal the denial of his motion to dismiss. 

The government would not consent, citing office policy, so Rivers proceeded to 

trial before a jury and conceded his guilt. At the close of evidence, the district 

court denied Rivers’s renewed motion to dismiss the indictment. The jury found 

Rivers guilty. The district court imposed a sentence of imprisonment of one year 

and one day to be followed by a ten-year term of supervised release. This appeal 

followed.

II.

We generally review the denial of a motion to dismiss an indictment for an 

abuse of discretion. United States v. Madera, 528 F.3d 852, 854 (11th Cir. 2008). 

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Where the district court’s determination rests on its resolution of questions of law, 

though, as it does here, we review those questions of law de novo. Id.

III.

SORNA contains two primary statutory sections applicable to this case. 

Under 42 U.S.C. § 16913, a sex offender is required to register, and to keep

registration current, in each jurisdiction where the offender resides, works, or is a 

student, and he must appear in person and provide the information required for the 

sex-offender registry within three business days of a change of name, residence, 

employment, or student status. 42 U.S.C. § 16913(a), (c). Section 2250 imposes 

criminal liability on two categories of persons who knowingly fail to adhere to 

SORNA’s registration requirements: any person who is a sex offender due to a 

federal conviction, § 2250(a)(2)(A); and any other person required to register 

under SORNA who travels in interstate or foreign commerce, § 2250(a)(2)(B). 

Carr v. United States, 560 U.S. 438, 451, 130 S. Ct. 2229, 2238 (2010).

Congress delegated authority to the Attorney General to determine whether 

SORNA and its registration requirements apply retroactively to offenders 

convicted before SORNA’s enactment. 42 U.S.C. § 16913(d); Madera, 528 F.3d 

at 857-58 (explaining that “Congress vested the Attorney General with sole 

discretion to determine SORNA’s retroactivity”). The Attorney General has 

determined that SORNA’s requirements “apply to all sex offenders, including sex 

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offenders convicted of the offense for which registration is required prior to the 

enactment of that Act.” 28 C.F.R. § 72.3. 

A. Commerce Clause

Rivers acknowledges our previous holding in Ambert that § 2250 is a valid 

exercise of congressional power under the Commerce Clause, U.S. Const., Art. I, 

§ 8. See 561 F.3d at 1210. Therefore, Rivers’s challenge is foreclosed unless 

Ambert is no longer controlling, because we are bound by the holding of a prior 

opinion unless the holding is overruled or undermined to the point of abrogation by 

the Supreme Court or by this Court sitting en banc. See United States v. Kaley, 

579 F.3d 1246, 1255 (11th Cir. 2009). Rivers argues that Ambert was undermined 

by the Supreme Court in NFIB. We disagree.

In Ambert, we began by recounting Congress’s three categories of power 

under the Commerce Clause, as delineated by the Supreme Court in United States 

v. Lopez, 514 U.S. 549, 115 S. Ct. 1624 (1995):

(1) “Congress may regulate the use of channels of 

interstate commerce”; (2) “Congress is empowered 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) “Congress’ commerce authority 

includes the power to regulate those activities having a 

substantial relation to interstate commerce, i.e., those 

activities that substantially affect interstate commerce.”

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Ambert, 561 F.3d at 1210 (quoting Lopez, 514 U.S. at 558-59, 115 S. Ct. at 1629-

30).

We then explained that § 2250 is constitutional “because it regulates both 

the use of channels of interstate commerce and the instrumentalities of interstate 

commerce.” Id. at 1210. We observed that § 2250 regulates the channels of 

interstate commerce because part of the commission of the offense for state sex 

offenders like Rivers requires “travel in interstate commerce.” Id. at 1211. We 

further noted that “when a sex offender travels from one state to another, he is an 

instrumentality of interstate commerce.” Id. By regulating these persons under 

SORNA, we explained, Congress did no more than employ its “lawful commerce 

power to prohibit the use of channels or instrumentalities of commerce for harmful 

purposes.” Id. 

We further held in Ambert that § 16913 of SORNA is “reasonably adapted to 

the attainment of a legitimate end under the commerce clause.” Id. at 1212. We 

found it “clear that SORNA was designed to create an interstate system to 

counteract the danger posed by sex offenders who slip through the cracks or 

exploit a weak state registration system by traveling or moving to another state 

without registering therein.” The registration requirements under § 16913, we 

held, are “necessary to track those offenders who move from jurisdiction to 

jurisdiction.” Id.

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Describing NFIB as “a particularly difficult opinion to decipher,” Rivers 

nevertheless asserts that the decision has called into doubt the holding of Ambert. 

NFIB is difficult because the discussion of the Commerce Clause in Part III-A of 

the primary opinion, authored by Chief Justice Roberts, was not joined by any 

other Justice and arguably was not necessary to the Court’s decision to uphold the 

constitutionality of the Patient Protection and Affordable Care Act. See NFIB, 567 

U.S. at ___, 132 S. Ct. at 2585-93. Therefore, the Chief Justice’s discussion of the 

Commerce Clause may not be binding, but we need decide not that question at this 

time. See United States v. Robbins, 729 F.3d 131, 135 (2d Cir. 2013) (declining to 

address this question in a challenge to SORNA). Even assuming that it is binding, 

Rivers’s arguments on appeal are unavailing.

Combining Chief Justice Roberts’s opinion in tandem with the jointly 

authored dissent, Rivers derives five relevant propositions from NFIB that he says 

limit Congress’s Commerce Clause authority in important respects. See NFIB, 567 

U.S. at ___, 132 S. Ct. at 2642-50 (Scalia, Kennedy, Thomas, and Alito, JJ., 

dissenting). First, Rivers asserts, Congress cannot regulate inactivity or compel 

individuals to engage in activity. Second, he continues, Congress cannot regulate 

the current conduct of individuals based on predictions about their future conduct. 

Third, Rivers suggests, the Necessary and Proper Clause, U.S. Const. art. 1, § 8, cl. 

18, is not an independent source of authority, but can be used only to supplement 

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an enumerated power. Fourth, Rivers contends, Congress has no authority “to 

regulate individuals as such; it may only regulate activities.” Finally, Rivers 

concludes, a regulation cannot be upheld where accepting its constitutionality 

would lead to “limitless regulatory authority.”

According to Rivers, SORNA is unconstitutional because it compels 

individuals to engage in activity: registration as a sex offender. Moreover, Rivers 

asserts, that activity is purely intrastate and non-economic in nature, and it is not 

connected to a comprehensive regulatory scheme of an interstate market, as in 

Gonzales v. Raich, 545 U.S. 1, 9, 125 S. Ct. 2195, 2201 (2005) (upholding 

regulation of purely intrastate activities that are part of an economic class of 

activities that have a substantial effect on interstate commerce). The broader 

purpose of SORNA, Rivers states, is similarly non-economic in nature.

Initially, we note that this case, like Ambert, concerns a defendant whose 

conviction under SORNA involves “travel[] in interstate commerce,”

§ 2250(a)(2)(B). We therefore do not reach the question of whether NFIB has 

anything to say about a defendant who is a sex offender by reason of a federal 

conviction, § 2250(a)(2)(A). Proceeding with that limitation in mind, and 

assuming without deciding the truth of Rivers’s assertions regarding what NFIB 

held with respect to Congress’s commerce authority, we hold that we are bound by 

Ambert’s holding notwithstanding NFIB. 

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The Supreme Court’s decision in NFIB does not undermine, or even appear 

to say anything about, the bases of Ambert’s holding. Ambert held that § 2250(a) 

was constitutional under the first two Lopez categories because it regulated the 

channels and the instrumentalities of interstate commerce. Id. at 1210-11. NFIB, 

on the other hand, addressed Lopez’s third category of permissible regulation under 

the Commerce Clause—the regulation of activity that has a substantial relation to 

or effect on interstate commerce. See NFIB, 567 U.S. at __, 132 S. Ct. at 2585-90. 

The Court’s decision in Raich was similarly concerned with this third category of 

regulation. See Raich, 545 U.S. at 16-17, 125 S. Ct. at 2205. Because NFIB did 

not cast doubt on Congress’s ability to regulate the channels or instrumentalities of 

interstate commerce, it is not “clearly on point” and does not “directly conflict” 

with our decision in Ambert. See Kaley, 579 F.3d at 1255. 

Furthermore, SORNA “compels” registration from only those individuals 

who have been previously convicted of a sexual offense. See United States v. 

Cabrera-Gutierrez, 756 F.3d 1125, 1132 (9th Cir. 2014). In that sense, these 

individuals have “opted in” to the group of persons whose activities are regulated 

by SORNA, unlike the uninsured in NFIB. Robbins, 729 F.3d at 136. Nor was 

Rivers’s conviction in this case based solely on his inactivity. Rather, the 

registration requirement that Rivers knowingly failed to meet was triggered by 

specific activity: travel across state lines. See 18 U.S.C. § 2250(a)(2)(B). Indeed, 

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interstate travel is the focal point of SORNA’s regulations. See Ambert, 561 F.3d 

at 1212 (“[A]n examination of § 16913 and § 2250 makes the interstate focus 

abundantly clear.”). “As applied to [Rivers], then, §§ 16913 and 2250(a) not only 

regulate activity, but activity that directly employs the channels of interstate 

commerce.” Robbins, 729 F.3d at 136; see also Ambert, 561 F.3d at 1211-12. 

In short, we held in Ambert that SORNA was a constitutionally valid

regulation of the channels and instrumentalities of interstate commerce. Ambert, 

561 F.3d at 1211-12. Nothing in the Supreme Court’s decision in NFIB

undermines the reasoning behind that settled precedent. Accordingly, at least as 

applied to defendants like Rivers, we remain bound by Ambert’s holding that 

SORNA is a valid exercise of Congress’s commerce authority.

B. Ex Post Facto Clause and Non-Delegation Doctrine

Rivers’s arguments under the Ex Post Facto Clause and the non-delegation 

doctrine, which he raises solely to preserve the issues for further review, are 

squarely foreclosed by this Court’s precedent, as he acknowledges. See Ambert, 

561 F.3d at 1207-08, 1212-14. We therefore do not address them further. 

IV.

In sum, we reaffirm our holding in Ambert that SORNA is a valid exercise 

of Congress’s commerce authority as applied to state sex offenders like Rivers who 

travel in interstate commerce. Therefore, the district court did not abuse its 

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discretion in denying Rivers’s motion to dismiss his indictment, and we affirm 

Rivers’s conviction and sentence.

AFFIRMED.

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