*

The Honorable Thomas B. Russell, United States District Judge for the Western District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0073p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

DAVID WAYNE FELTS,

Defendant-Appellant.

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No. 11-5237

Appeal from the United States District Court

for the Middle District of Tennessee at Cookeville.

No. 10-00002-001—Todd J. Campbell, Chief District Judge.

Decided and Filed: March 12, 2012 

Before: BOGGS and GIBBONS, Circuit Judges; and RUSSELL, District Judge.*

_________________

COUNSEL

ON BRIEF: Jude T. Lenahan, Andrew C. Brandon, FEDERAL PUBLIC

DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant. Lynne T. Ingram,

ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION

_________________

BOGGS, Circuit Judge. David Wayne Felts was convicted for failing to register

under the Sex Offender Registration Notification Act (“SORNA”) in Tennessee. Felts’s

appeal presents a case of first impression for this Circuit—can an offender be convicted

for failure to register under SORNA if his home state, Tennessee, has not yet completely

implemented the act? Felts challenges the district court’s denial of his motion to dismiss

1
No. 11-5237 United States v. Felts Page 2

the indictment. In concert with six other circuits, we hold that SORNA is effective in a

state, even prior to its complete implementation. Felts’s alternate constitutional

arguments—that SORNA violates the Ex Post Facto Clause, the nondelegation doctrine,

and the Tenth Amendment—are without merit.

I

Felts served fifteen years of imprisonment for a 1994 conviction for rape of a

child (a twelve-year-old female) on November 3, 1993 and aggravated sexual battery (a

different twelve-year-old victim) on October 26, 1993. After his release, Felts, along

with his girlfriend and her six-year-old daughter, moved to Florida, and then to San Juan,

Puerto Rico, without notifying the registration authorities in his home state of Tennessee.

Felts was indicted on one count of failing to register under SORNA, in violation of

18 U.S.C. § 2250(a). The district court denied Felts’s motion to dismiss, after which

Felts pleaded guilty. Felts was sentenced to 24 months of imprisonment. Felts now

appeals the denial of the motion to dismiss.

This court reviews de novo a district court’s purely legal determinations,

including determinations regarding statutory construction and the constitutionality of a

federal statute. United States v. Hart, 635 F.3d 850, 856 (6th Cir. 2011). Because Felts

raises only legal errors, all issues before this court are reviewed de novo.

II

 A

Congress passed the Sex Offender Registration and Notification Act (SORNA),

42 U.S.C. § 16901 et seq., on July 27, 2006 for the purpose of “creat[ing] a national

system for the registration of sex offenders.” United States v. Utesch, 596 F.3d 302, 306

(6th Cir. 2010) (citing 42 U.S.C. § 16901). Rather than establishing a federal agency to

implement SORNA, Congress, through its spending power, U.S. Const. Art. I, § 8,

directed all states and the District of Columbia to create local registries that comply with

specific national standards. 42 U.S.C. §§ 16911(10), 16912(a).
No. 11-5237 United States v. Felts Page 3

SORNA imposes an obligation on a sex offender to “register, and keep the

registration current, in each jurisdiction where the offender resides, where the offender

is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). Pursuant

to SORNA, a sex offender is also required, “not later than 3 business days after each

change of name, residence, employment, or student status, to appear in person” to update

his or her registration information. 42 U.S.C. § 16913(c). 18 U.S.C. § 2250(a) mandates

that whoever “is required to register under the Sex Offender Registration and

Notification Act,” is a “sex offender,” and if he “knowingly fails to register or update

a registration as required by the Sex Offender Registration and Notification Act,” he

“shall be fined under this title or imprisoned not more than 10 years, or both.”

The original deadline for states to implement SORNA was July 27, 2009. See

42 U.S.C. § 16924(a)(1)-(2)(“Each jurisdiction shall implement this title before the later

of 3 years after the date of the enactment of this Act [enacted July 27, 2006]”).

Currently, 15 states have “substantially implemented SORNA’s requirements”:

Alabama, Delaware, Florida, Kansas, Louisiana, Maryland, Michigan, Mississippi,

Missouri, Nevada, Ohio, South Carolina, South Dakota, Wyoming, and most

saliently, Tennessee. U.S. Dep’t of Justice, SMART Office “Newsroom,”

http://www.ojp.usdoj.gov/smart/newsroom.htm (last visited Mar. 8, 2012). As of the

date of Felts’s federal conviction for failure to register, however, Tennessee had not yet

substantially implemented SORNA. Appellant Br. at 13 (“Though Tennessee’s own sex

registration form includes notification of the federal duty to register and alerts registrants

to possible federal criminal penalties of ‘up to 10 years imprisonment,’ Tennessee has

not yet taken the additional steps required to achieve substantial implementation.”).
No. 11-5237 United States v. Felts Page 4

1

In United States v. Samuels, this court considered a related case where an offender moved from

New York to Kentucky and claimed that “Kentucky law also requires he register as a sex offender, but at

the time he moved to Kentucky, Kentucky law was silent as to his requirement to register under SORNA.”

319 F. App’x 389, 393 (6th Cir. 2009), abrogated on other grounds by United States v. Utesch, 596 F.3d

302 (6th Cir. 2010). In Samuels, this court denied defendant’s due-process challenge, and held that

“Notwithstanding his failure to register, Samuels’s prior knowledge of his duty to register under state law

qualified as effective notice under SORNA”). Ibid. Utesch did not present a challenge based on

Kentucky’s failure to implement SORNA.

B

This appeal presents a case of first impression for this circuit1

—if Tennessee

failed to implement SORNA, does Felts’s failure to register in Tennessee’s registry

constitute a failure to register as required by SORNA?

The answer to that question—based on case law from all other circuits to look

at this issue—is yes. The duty to register in a state registry is independent of a state’s

degree of implementation of SORNA. United States v. Guzman, 591 F.3d 83, 93 (2d Cir.

2010) (“SORNA creates a federal duty to register with the relevant existing state

registries regardless of state implementation of the specific additional requirements of

SORNA.”); United States v. George, 625 F.3d 1124, 1128 (9th Cir. 2010) (“Without

regard to whether SORNA is implemented by Washington or any other state, registration

under it is required.”); United States v. Shenandoah, 595 F.3d 151, 157 (3d Cir. 2010),

abrogated on other grounds by Reynolds v. United States, 132 S. Ct. 975 (2012); United

States v. Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (“SORNA was not enacted in a

vacuum. To the contrary, every state and the District of Columbia had a sex offender

registration law prior to 2006. An individual may therefore comply with SORNA’s

registration requirements by registering through the state’s sex offender registry, even

if that jurisdiction has not implemented SORNA’s administrative procedures.”) (citations

omitted); United States v. Gould, 568 F.3d 459, 455-56 (4th Cir. 2009) (“We conclude

that the requirement imposed on individuals to register is independent of the requirement

imposed on the States to implement the enhanced registration and notification standards

of SORNA. Accordingly, SORNA’s requirement that a sex offender register applies

whether registration would be accomplished through preSORNA registration facilities

or under SORNA-compliant programs.”); United States v. Hinckley, 550 F.3d 926, 939
No. 11-5237 United States v. Felts Page 5

(10th Cir. 2008), abrogated on other grounds by Reynolds v. United States, 132 S. Ct.

975 (2012) (finding that defendant had “knowledge of his duty to register under similar

state and federal provisions”). Felts cites no contrary precedents.

Felts argues that “SORNA . . . appears to require that persons register under its

provisions only when States actually implement SORNA’s regulatory scheme.”

Appellant Br. at 15. From the context, it appears that by “actually implement,” Felts

means that a state “fully implements” SORNA. This cannot be correct, as at the time of

SORNA’s enactment in 2006, no state’s registry was in compliance with SORNA. For

Felts’s argument to be true, Congress—which provided the states with three years to

comply without penalty—would have effectively rendered SORNA nugatory in any noncompliant state until 2009.

Or, if a state chooses not to comply with SORNA—its sovereign prerogative,

so long as it is willing to forego federal funding—a resident-sex offender would never

have to register under federal law. See Shenandoah, 595 F.3d at 157 (“New York and

Pennsylvania may never implement SORNA, choosing, for whatever reason, to forego

a portion of their federal funding. This failure to implement a federal law, however,

does not give sex offenders a reason to disregard their federal obligation to update their

state registrations.”). At the time of the enactment of SORNA, “every state and the

District of Columbia had a sex offender registration law” and “an individual may

therefore comply with SORNA’s registration requirements by registering through the

state’s sex offender registry, even if that jurisdiction has not implemented SORNA’s

administrative procedures.” Brown, 586 F.3d at 1349.

We reject Felts’s argument and concur with the reasoning of our sister courts.

The duty of an offender to register is independent of whether or not the state has

implemented SORNA. Even assuming that Tennessee’s registry in 2010 was not up to

SORNA’s standards, Felts still could have registered with it. This much is clear. But

what happens if inconsistencies between the non-complying state and federal regimes

limit the ability of an offender to register?
No. 11-5237 United States v. Felts Page 6

C

Felts’s broader argument—essentially a facial, rather than an as-applied

challenge—is that no one, not just Felts, could be prosecuted for a violation of SORNA

if there is any inconsistency between the federal and non-complying state regimes,

thereby meaning that an offender would lack “fair notice” of what is prohibited. See

United States v. Williams, 553 U.S. 285, 304 (2008) (“A conviction fails to comport with

due process if the statute under which it is obtained fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.”). That is, the requirements of

SORNA may or may not overlap with the existing sex-offender registries in noncompliant jurisdictions. The two regimes may differ depending on the specific

provisions in question, but generally an inconsistency could take two forms: first, where

the requirements under the state registry exceed those of SORNA, and second, where the

requirements under the state registry are less stringent than the requirements under

SORNA.

1

A case may arise where a non-compliant state-law contains all of the

requirements that SORNA requires, and more. If an offender has fair notice of, and

fulfills all of the requirements under the state law, then by definition, the offender will

fulfill all of the requirements under federal law. Such a regime would not present any

overlap issues. See Shenandoah, 595 F.3d at 157 (“SORNA defines a ‘sex offender

registry’ as ‘a registry of sex offenders, and a notification program maintained by a

jurisdiction.’ 42 U.S.C. § 16911(9). A registry that is operated by a state—like those

operated by New York and Pennsylvania—and maintained after the effective date of

SORNA satisfies this definition.”) In such cases, state registries are effectively

congruent with the requirements of SORNA, and there would be sufficient fair notice

to satisfy due process.
No. 11-5237 United States v. Felts Page 7

2

The second, potentially more problematic, circumstance, occurs where the

requirements under the non-compliant state registry are less onerous than the

requirements under SORNA, and the offender may thus lack fair notice of what federal

law requires. This is what Felts alleges. For example, 42 U.S.C. § 16915(a) lists

different durations of the registration requirement based on the severity of the offense.

For a Tier III sex offender, registration is required for life. Id. § 16915(a)(3). If a nonimplementing state were to require registration for a period less than that mandated by

SORNA, and a state official only informed an offender of the state requirement, would

an offender who stopped registering after the state-prescribed period violate SORNA?

Felts raises an alternate scenario: “A defendant in a State that has not

implemented SORNA and does not require that its sex offenders provide all of the listed

categories . . . would naturally assume that ‘registration’ meant providing more

information than the State required or even permitted.” Appellant Br. at 17. Felts

contends that such a state would be unable to process the additional information, leaving

an offender subject to SORNA without fair notice and unable to fulfill the registration

requirements, through no fault of his own.

The precedents from other circuits largely fail to address circumstances where

an inconsistency between federal and non-complying state regimes would render it

impractical, or even impossible, for an offender to register under federal law. The other

courts that have addressed this issue have seemed to assume that the federal and state

requirements in non-compliant jurisdictions are identical, or perhaps simply similar

enough. This may not always be the case.

However, we need not reach this argument with respect to due process, as Felts’s

own conduct renders this defense unavailable. Under any conceivable definition of the

word “register,” Felts did not register. There is no question that Felts failed at a

minimum to update his address information when he moved, with a minor, to Florida and

Puerto Rico. Felts cites no specific inconsistencies between Tennessee law and SORNA

that would have rendered it “impossible for [him] to comply with SORNA in
No. 11-5237 United States v. Felts Page 8

Tennessee.” Appellant Br. at 17. Failing to actually register lies at the core of all sexoffender registry offenses, whether the state is SORNA-compliant or not. Felts clearly

did not comply with the Tennessee law in effect at the time, which was consistent with

SORNA insofar as it provided for and required registration with a registry, and thus

there is no due-process problem. This claim fails.

 III

Felts also argues that retroactive application of SORNA violates the

Constitution’s Ex Post Facto Clause, as it increases the punishments for Felts’s earlier

crimes. This argument has been consistently rejected. In Smith v. Doe, the Supreme

Court upheld Alaska’s sex-offender-registration statute, finding that it was not punitive,

but civil in nature, and not in violation of the Ex Post Facto Clause. 538 U.S. 84 (2003).

Relying on Smith, circuit courts have consistently held that SORNA does not violate the

Ex Post Facto Clause. See, e.g., United States v. DiTomasso, 621 F.3d 17, 25 (1st Cir.

2010); Guzman, 591 F.3d at 94 (2d Cir. 2010); Shenandoah, 595 F.3d at 158-59;

George, 625 F.3d at 1131; Gould, 568 F.3d at 466; United States v. Young, 585 F.3d

199, 203-06 (5th Cir. 2009); United States v. Ambert, 561 F.3d 1202, 1207 (11th Cir.

2009); United States v. May, 535 F.3d 912, 919-20 (8th Cir. 2008), abrogated on other

grounds by Reynolds v. United States, 132 S. Ct. 975 (2012); Hinckley, 550 F.3d at 936

(10th Cir. 2008). Felts attempts—to little avail—to distinguish SORNA from the Alaska

statute in question, but fails to address the unanimous consensus among the circuits that

SORNA does not violate the Ex Post Facto Clause. SORNA provides for a conviction

for failing to register; it does not increase the punishment for the past conviction. Felts’s

crime of failing to update his sex offender registry after the enactment of SORNA was

entirely separate from his crime of rape of a child and aggravated sexual battery.

IV

Next, Felts argues that SORNA’s “grant of power to the Attorney General to

make it retroactive is unconstitutional” as “this provision effectively delegates

broad-ranging legislative powers to the Attorney General, in violation of the
No. 11-5237 United States v. Felts Page 9

nondelegation doctrine.” Appellant Br. at 24. SORNA delegates to the Attorney

General the authority to decide how the registration requirements will be applied to sex

offenders convicted “before July 27, 2006 or its implementation in a particular

jurisdiction.” 42 U.S.C. § 16913(d). Felts relies on precedents from before the New

Deal’s transformation of the Supreme Court—such as Panama Refining Co. v. Ryan, 293

U.S. 388, 421 (1935) and Schechter Poultry Corp. v. United States, 295 U.S. 495

(1935)—to bolster his case that “Congress gave the Attorney General sole discretion to

determine who should be subject to SORNA” without a guiding intelligible principle,

thus violating the nondelegation doctrine.

However, in light of post-New Deal cases, such as National Broadcasting Co.

v. United States, 319 U. S. 190, 225-26 (1943), and American Power & Light Co. v.

SEC, 329 U.S. 90, 104 (1946), and more recently, Whitman v. American Trucking

Associations, Inc., 531 U.S. 457 (2001), Congress’s delegations under SORNA possess

a suitable “intelligible principle” and are “well within the outer limits of [the Supreme

Court’s] nondelegation precedents.” Id. at 474. See United States v. Hann, 574 F. Supp.

2d 827, 837 (M.D. Tenn. 2008) (“This delegation is limited in nature and does not afford

the Attorney General the authority to legislate. The court holds that § 16913(d) does not

offend the principles of the non-delegation doctrine.”).

V

Finally, Felts raises a commandeering argument—that is, that the enforcement

of SORNA violates the Tenth Amendment because it “forces Tennessee officials to

register sex offenders in compliance with SORNA’s onerous requirements before the

State of Tennessee has an opportunity to voluntarily comply with SORNA.” Appellant

Br. at 28. The Tenth Amendment provides that “[t]he powers not delegated to the

United States by the Constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people.” U.S. Const. amend. X. Under the Tenth

Amendment, federal officers are prohibited from conscripting, or commandeering, state

officials to administer and enforce a federal regulatory program. Printz v. United States,

521 U.S. 898, 935 (1997). Relying on Printz, Felts contends that Congress cannot
No. 11-5237 United States v. Felts Page 10

“compel State officers to procure and accept registrations for a federally mandated sex

offender program that the State has not voluntarily implemented.” Appellant Br. at 30.

The United States counters that Felts “lacks standing to assert SORNA’s alleged

violation.” Appellee Br. at 31. This is no longer an accurate statement of law. The

United States’s brief was filed on June 6, 2011, ten days before the Supreme Court

decided Bond v. United States, 131 S. Ct. 2355 (2011). In Bond, the Court unanimously

held that an individual can have standing to challenge the constitutionality of a act of

Congress that violates the Tenth Amendment. “The individual, in a proper case, can

assert injury from governmental action taken in excess of the authority that federalism

defines. Her rights in this regard do not belong to a State.” Id. at 2363-64. Further,

“Federalism also protects the liberty of all persons within a State by ensuring that laws

enacted in excess of delegated governmental power cannot direct or control their

actions.” Id. at 2364. In short, the Court found that “[f]ederalism secures the freedom

of the individual” and “the individual liberty secured by federalism is not simply

derivative of the rights of the States.” Ibid.

The United States is wrong to assert that Felts does not have an interest in

challenging SORNA. As Justice Kennedy concluded, “Fidelity to principles of

federalism is not for the States alone to vindicate.” Ibid. “Just as it is appropriate for an

individual, in a proper case, to invoke separation-of-powers or checks-and-balances

constraints, so too may a litigant, in a proper case, challenge a law as enacted in

contravention of constitutional principles of federalism.” Ibid. As the Court stressed,

“[t]he structural principles secured by the separation of powers protect the individual as

well.” Id. at 2365.

Like Bond, Felts “is a party to an otherwise justiciable case or controversy, [and]

is not forbidden to object that [his] injury results from disregard of the federal structure

of our Government.” Id. at 2367. “An individual has a direct interest in objecting to

laws that upset the constitutional balance between the National Government and the

States when the enforcement of those laws causes injury that is concrete, particular, and

redressable.” Id. at 2364. For Felts, the injury—incarceration in violation of
No. 11-5237 United States v. Felts Page 11

SORNA—is quite “concrete, particular, and redressable.” An individual can assert that

the enforcement of a law violates the Tenth Amendment, particularly when a defendant

has a significant liberty interest at stake. Because Felts was prosecuted for violating

SORNA, he has standing to challenge the act for being enforced in violation of the Tenth

Amendment.

Nonetheless, Felts’s constitutional claim fails. Under Printz, the “Federal

Government may neither issue directives requiring the States to address particular

problems, nor command the States’ officers, or those of their political subdivisions, to

administer or enforce a federal regulatory program.” Printz, 521 U.S. at 935. However,

SORNA does not fall under the rubric of Printz, but rather relies on Congress’s spending

power. Failure to implement SORNA results in a loss of 10% of federal funding under

the Omnibus Crime Control and Safe Streets Act of 1968. 42 U.S.C. §§ 16924, 16925(a).

Conditioning of funds in this manner is appropriate under South Dakota v. Dole. See

483 U.S. 203, 206-08 (1987) (stating that Congress’s power to condition the receipt of

federal funds under the spending power is valid so long as (1) the spending/withholding

is in the pursuit of “the general welfare”; (2) the conditional nature is clear and

unambiguous; (3) the condition is rationally related to the purpose of the federal interest,

program, or funding; and (4) the conduct required to comply with the condition is not

barred by the constitution itself).

Unlike the situation with the Brady Handgun Violence Prevention Act in Printz,

Congress through SORNA has not commandeered Tennessee, nor compelled the state

to comply with its requirements. Congress has simply placed conditions on the receipt

of federal funds. A state is free to keep its existing sex-offender registry system in place

(and risk losing funding) or adhere to SORNA’s requirements (and maintain funding).

Since Felts’s conviction, Tennessee has come into substantial compliance with SORNA.

The choice is that of the state.

SORNA does not violate the rights of Tennessee, or those of Felts as an

individual, under the Tenth Amendment of the Constitution.
No. 11-5237 United States v. Felts Page 12

VI

The judgment of the district court is AFFIRMED.