REVISED July 14, 2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-51185

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ANTHONY JAMES KEBODEAUX, also known as Anthony Kebodeaux,

Defendant - Appellant

Appeal from the United States District Court

for the Western District of Texas

Before STEWART, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:

The petition for rehearing en banc, treated as a petition for panel

rehearing, is GRANTED. We withdraw our prior opinion, United States v.

Kebodeaux, 634 F.3d 293 (5th Cir. 2011), and substitute the following.

Defendant, Anthony Kebodeaux, a federally-adjudged sex offender, was

convicted of knowingly failing to update his sex offender registration after his

intrastate change of residence (from El Paso to San Antonio, Texas) as required

by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.

§ 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and

one day of imprisonment. On appeal, he argues that the Constitution does not

United States Court of Appeals

Fifth Circuit

F I L E D

July 12, 2011

Lyle W. Cayce

Clerk
No. 08-51185

1 42 U.S.C. § 16913(a) provides: “A sex offender shall 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. For initial registration purposes only, a sex offender shall also

register in the jurisdiction in which convicted if such jurisdiction is different from the

jurisdiction of residence.” 42 U.S.C. § 16913(c) also provides, “A sex offender shall, not later

than 3 business days after each change of name, residence, employment, or student status,

appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section

and inform that jurisdiction of all changes in the information required for that offender in the

sex offender registry. That jurisdiction shall immediately provide that information to all other

2

grant Congress the authority to enact § 2250(a)(2)(A), read together with

§ 16913, because that provision regulates purely intrastate activities, rather

than any aspect of Congress’s proper domain of interstate commerce—and that

no other Article I source of authority permits Congress to impose SORNA’s

registration and notification obligations on him. We conclude that

§ 2250(a)(2)(A) is constitutional.

BACKGROUND

In 1999, Kebodeaux, a twenty-one-year-old member of the United States

Air Force, was convicted under Article 120 of the Uniform Code of Military

Justice (“UCMJ”), 10 U.S.C. § 920, of Carnal Knowledge With a Child, and

sentenced to three months of confinement and a bad conduct discharge. The

victim was a fifteen-year-old with whom Kebodeaux had sexual relations to

which the victim assented in fact though she lacked the legal ability to consent.

Kebodeaux served his sentence and was discharged from the military. No term

of supervised release was imposed. 

On August 8, 2007, Kebodeaux registered as a sex offender in El Paso,

Texas, and reported his residence at a street address in that city, in compliance

with SORNA. See 42 U.S.C. § 16913. On January 24, 2008, El Paso police were

unable to locate Kebodeaux atthat address. On March 12, 2008, Kebodeaux was

found and arrested in San Antonio, Texas. Kebodeaux admits that he did not

update his registration or otherwise inform authorities of his relocation from El

Paso to San Antonio as required by SORNA.1 On April 2, 2008, a federal grand
No. 08-51185

jurisdictions in which the offender is required to register.”

3

jury indicted Kebodeaux on one count of violation of SORNA, 18 U.S.C.

§ 2250(a). 

Section 2250(a) makes it a crime punishable by up to ten years

imprisonment if a person who: 

(1) is required to register under [SORNA]; 

(2) (A) is a sex offender as defined for the purposes of

[SORNA] by reason of a conviction under Federal

law (including the [UCMJ]), the law of the

District of Columbia, Indian tribal law, or the law

of any territory or possession of the United

States; or

(B) travels in interstate or foreign commerce, or

enters or leaves, or resides in, Indian country;

and

(3) knowingly fails to register or update a registration as

required by [SORNA].

Thus, “Section 2250 imposes criminal liability on two categories of persons who

failto adhere to SORNA’s registration [and updating] requirements: any person

who is a sex offender ‘by reason of a conviction under Federal law, the law of the

District of Columbia, Indian tribal law, or the law of any territory or possession

of the United States, § 2250(a)(2)(A), and any other person required to register

under SORNA who ‘travels in interstate or foreign commerce, or enters or

leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr v. United States, 130

S. Ct. 2229, 2238 (2010) (alteration removed). Accordingly, “[f]or persons

convicted of sex offenses under federal or Indian tribal law, interstate travel is

not a prerequisite to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)). 

In response to Kebodeaux’s pre-trial filings, the Government stated that

it was charging Kebodeaux solely because he fell under 18 U.S.C. § 2250(a)(2)(A),
No. 08-51185

2 The Government also stated that it was not charging Kebodeaux under

§ 2250(a)(2)(B), for having traveled in interstate or foreign commerce or having entered an

Indian reservation and knowingly having failed to update his registration. 

4

as he qualified as a sex offender “for the purpose of” SORNA “by reason of a

conviction under . . .the [UCMJ]” and knowingly failed to update his registration

when he moved intra-state, within Texas.2 After a bench trial on the stipulated

facts described above, Kebodeaux was convicted and subsequently sentenced

below the Sentencing Guidelines recommendation to twelve months and one day

of imprisonment, with a five-year term of supervised release. Kebodeaux timely

appeals the constitutionality of his conviction and sentence. 

DISCUSSION

We review challenges to the constitutionality of a conviction de novo.

United States v. Whaley, 577 F.3d 254, 256 (5th Cir. 2009).

Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s

punishment of a federal sex offender – who has previously registered under

SORNA – for knowingly failing to update his registration after an intrastate

relocation in violation of the registration requirement imposed by § 16913. He

concedes the constitutional validity of the balance of SORNA’s provisions. 

We must begin any assessment of the constitutionality of a duly-enacted

federal statute with a “presumption of constitutionality.” United States v.

Morrison, 529 U.S. 598, 607 (2000). This presumption itself is grounded in the

Constitution: “Due respect for the decisions of a coordinate branch of

Government demands that we invalidate a congressional enactment only upon

a plain showing that Congress has exceeded its constitutional bounds.” Id. We

remain, of course, mindful that in some cases a party will succeed in making this

“plain showing,” and that in those cases it is our obligation to declare the law

unconstitutional. Cf. Morrison, 529 U.S. at 616, 627 (holding part of the

Violence Against Women Act outside Congress’s authority to enact); United
No. 08-51185

3 We have moreover reiterated and reaffirmed each of these holdings in a range of

unpublished cases. See United States v. Byrd, No. 09-51108, 2011 U.S. App. LEXIS 5962, at

*10–12 (5th Cir. Mar. 22, 2011) (following Heth and Whaley); United States v. Koch, 403 F.

App’x 917, 917 (5th Cir. 2010) (following Whaley); United States v. Ross, 385 F. App’x 364, 365

(5th Cir.) (following Heth and Whaley), cert. denied, 131 S. Ct. 583 (2010); United States v.

Marrufo, 381 F. App’x 403, 404–05 (5th Cir. 2010) (following Heth and Whaley); United States

v. Contreras, 380 F. App’x 434, 435–36 (5th Cir. 2010) (following Heth and Whaley); United

5

States v. Lopez, 514 U.S. 549, 567–68 (1995) (holding the Gun-Free School Zones

Act unconstitutional).

Along these lines, we note that we do not write on a blank slate as to

SORNA, as it has withstood constitutional scrutiny on a number of fronts in the

years since its enactment. Our court has previously held that, as applied to sex

offenders who traveled across state lines, § 16913, taken together with

§ 2250(a)(2)(B), does not run afoul of the Commerce Clause, United States v.

Whaley, 577 F.3d 254, 258 (5th Cir. 2009), the Due Process Clause, id. at 262, or

the non-delegation doctrine, id. at 264. We have also held that SORNA comports

with the requirements of the Ex Post Facto Clause because “the forbidden act

[viz., failure to register] is not one which was legal at the time [the appellant]

committed it.” United States v. Young, 585 F.3d 199, 203–04 (5th Cir. 2009); see

also Smith v. Doe, 538 U.S. 84, 92 (2003) (holding Alaska’s state sex offender

statute did not run afoul of the Ex Post Facto Clause because the law was “a

regulatory scheme that is civil and nonpunitive” in intention and in fact). We

have rejected challenges to the application of SORNA under the Due Process

Clause where the involved states maintained sex offender registries but had not

formally implemented SORNA. United States v. Heth, 596 F.3d 255, 259 (5th

Cir. 2010). We also have held that SORNA does not “compel the States to enact

or enforce a federal regulatory program” in violation of the Tenth Amendment.

United States v. Johnson, 632 F.3d 912, 920 (5th Cir. 2011) (quoting Printz v.

United States, 521 U.S. 898, 935 (1997)), petition for cert. filed, No. 10-10330

(U.S. filed May 3, 2011).3 Furthermore, no other circuit has held any portion of
No. 08-51185

States v. McBroom, No. 09-50443, 2010 U.S. App. LEXIS 11113, at *3–4 (5th Cir. June 1,

2010) (following Heth and Whaley), cert. denied, 131 S. Ct. 484 (2010); United States v. Slater,

373 F. App’x 526, 527 (5th Cir. 2010) (following Young); United States v. Knezek, No. 09-50438,

2010 U.S. App. LEXIS 8585, at *2–3 (5th Cir. Apr. 26, 2010) (following Heth and Whaley);

United States v. Letourneau, 342 F. App’x 24, 26–27 (5th Cir. 2009) (following Whaley), cert.

denied, 130 S. Ct. 1736 (2010); United States v. Puente, 348 F. App’x 76, 77 (5th Cir. 2009)

(following Whaley), cert. denied, 130 S. Ct. 1747 (2010).

4 The Ninth Circuit had held that one portion of the regulations issued by the Attorney

General under SORNA posed an Ex Post Facto Clause problem as to the narrow category of

federally-adjudicated juvenile delinquents. See United States v. Juvenile Male, 590 F.3d 924

(9th Cir. 2009). The Supreme Court, however, recently vacated that decision on mootness

grounds without reaching the merits of the Ninth Circuit’s ruling. United States v. Juvenile

Male, No. 09-940, 2011 WL 2518925, at *3 (U.S. June 27, 2011).

5 The district courts that have considered the question have likewise consistently held

that § 2250(a)(2)(A) is constitutional. See United States v. Morales, 258 F.R.D. 401, 406 (E.D.

Wash. 2009), appeal docketed, No. 09-30344 (9th Cir. filed Sept. 23, 2009); United States v.

Thompson, 595 F. Supp. 2d 143, 145–46 (D. Me. 2009), aff’d on other grounds, No. 09-1946,

2011 U.S. App. LEXIS 11408 (1st Cir. June 3, 2011) (unpublished); United States v.

Yelloweagle, No. 08-cr-364, 2008 U.S. Dist. LEXIS 105479, at *3–5 (D. Colo. Dec. 23, 2008),

6

SORNA unconstitutional,4 and the few district courts that have rejected any part

of SORNA as unconstitutional have all been reversed or overruled on the merits.

See, e.g., United States v. Waybright, 561 F. Supp. 2d 1154, 1168 (D. Mont. 2008),

overruled by United States v. George, 625 F.3d 1124, 1129 n.2 (9th Cir. 2010);

United States v. Powers, 544 F. Supp. 2d 1331, 1336 (M.D. Fla. 2008), rev’d, 562

F.3d 1342, 1344 (11th Cir. 2009) (per curiam); United States v. Guzman, 582 F.

Supp. 2d 305, 315 (N.D.N.Y. 2008), rev’d, 591 F.3d 83, 89–91 (2d Cir. 2010), cert.

denied, 130 S. Ct. 3487; United States v. Hall, 577 F. Supp. 2d 610, 623

(N.D.N.Y. 2008), rev’d sub nom. United States v. Guzman, 591 F.3d at 89–91.

Of these various cases upholding SORNA, the Ninth Circuit’s decision in

George is the one that directly addressed the issue presented by this appeal. The

Ninth Circuit held that Congress acted within its powers, explaining that

“SORNA’s registration requirements in [§ 2250(a)(2)(A)] are valid based on the

federal government’s ‘direct supervisory interest’ over federal sex offenders.”

625 F.3d at 1130 (quoting Carr, 130 S. Ct. at 2239).5 While George, of course,
No. 08-51185

aff’d on other grounds, No. 09-1247, 2011 U.S. App. LEXIS 8934 (10th Cir. May 2, 2011);

United States v. Santana, 548 F. Supp. 2d 941, 946–47 (W.D. Tex. 2008), appeal docketed, No.

08-51226 (5th Cir. filed Dec. 5, 2008); United States v. Reeder, No. EP-08-CR-977, 2008 U.S.

Dist. LEXIS 105968 (W.D. Tex. Oct. 31, 2008), appeal docketed, No. 08-51212 (5th Cir. filed

Nov. 26, 2008); United States v. Torres, 573 F. Supp. 2d 925, 935–36 (W.D. Tex. 2008), appeal

docketed, No. 09-50204 (5th Cir. filed Mar. 16, 2009); United States v. Senogles, 570 F. Supp.

2d 1134, 1147 (D. Minn. 2008); see also United States v. David, No. 1:08-cr-11, 2008 U.S. Dist.

LEXIS 38613, at *26 n.11 (W.D.N.C. May 12, 2008) (suggesting that § 2250(a)(2)(A) is

constitutional in dicta), aff’d, 333 F. App’x 726 (4th Cir. 2009) (unpublished); United States v.

Voice, 621 F. Supp. 2d 741, 760 (D.S.D. 2009) (holding that a sex offender convicted under

federal law in Indian country and then residing in Indian country could be constitutionally

convicted under § 2250(a)(2)(A)), aff’d, 622 F.3d 870 (8th Cir. 2010), cert denied, 131 S. Ct.

1058 (2011). 

6 Whaley, 577 F.3d at 258; accord George, 625 F.3d at 1129–30; Guzman, 591 F.3d at

90; United States v. Gould, 568 F.3d 459, 470-72 (4th Cir. 2009), cert. denied, 130 S. Ct. 1686

(2010); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. May,

535 F.3d 912, 921-22 (8th Cir. 2008).

7

does not bind us, “[w]e are always chary to create a circuit split,” Alfaro v.

Comm’r, 349 F. 3d 225, 229 (5th Cir. 2003), absent a “persuasive reason” for

doing so, United States v. Adam, 296 F.3d 327, 332 (5th Cir. 2002).

Kebodeaux thus faces a high, though not insurmountable, hurdle to

reversal: he must overcome the presumption of constitutionality we accord a

federal statute and convince us to create a circuit split. In our assessment,

Kebodeaux has not cleared this bar.

The arguments that Kebodeaux made in support of his position to the

district court and in his initial briefing to our court focused on the Commerce

Clause. As discussed above, SORNA makes it a federal offense, through

§ 2250(a)(2)(B), for a sex offender convicted under state or federal law to

knowingly fail to update his SORNA registration after traveling in interstate

commerce. This court and others have consistently held that § 2250(a)(2)(B) is

a constitutional execution of Congress’s power to regulate the channels of, and

persons in, interstate commerce.6 Kebodeaux does not question those holdings

or the constitutionality of § 2250(a)(2)(B). He argues only that § 2250(a)(2)(A)
No. 08-51185

7 To the extentthatthe UCMJ applies to members ofthe National Guard when engaged

in certain functions in federal service, see 10 U.S.C. § 802(a)(3), Article 120 likely also derives

from Article I, § 8, clause 16, which authorizes laws “for organizing, arming, and disciplining,

the Militia, and for governing such Part of them as may be employed in the Service of the

United States.” In any event, as applied to Kebodeaux, at the time of his conviction a member

of the regular armed forces of the United States, the relevant source of authority is clause 14.

8

is unconstitutional because it is an invalid attempt by Congress to regulate

intrastate activities, rather than interstate commerce. 

Kebodeaux’s argument ignores the fact that § 2250(a)(2)(A) does not

depend on the “interstate commerce” jurisdictional hook. That subsection

expressly deals with persons convicted under federal sex offender statutes and

is conspicuously lacking the interstate travel element of § 2250(a)(2)(B); this

distinction is plainly intentional, see Carr, 130 S. Ct. at 2238. Federal sex

offender statutes themselves are promulgated under various provisions of

Article I. See, e.g., 18 U.S.C. § 2243(a) (criminalizing “sexual abuse of a minor

or ward” in United States “special maritime and territorial jurisdiction”,

pursuant to Congress’s Article I power “[t]o define and punish . . . felonies

committed on the high seas”). In the present case, Congress had the authority

to enact Article 120 of the UCMJ, criminalizing sexual abuse of a minor by a

member of the military, pursuant to its power to regulate the military under

Article I, Section 8, Clause 14 of the United States Constitution.7 Kebodeaux

does not suggest that Congress lacked the authority to criminalize the conduct

of which he was convicted or that the statute under which he was convicted was

unconstitutional. 

The question then becomes whether Congress’s power over federal sex

offenses stretches far enough to encompass a registration requirement. The

Necessary and Proper Clause of the Constitution gives Congress the power “[t]o

make all laws which shall be necessary and proper for carrying into Execution”

the enumerated powers. U.S. CONST., art. I, § 8, cl. 18. Our analysis of this

issue is governed by United States v. Comstock, 130 S. Ct. 1949 (2010). 
No. 08-51185

9

In Comstock, the Court held constitutional a civil commitment statute for

sexually-dangerous federal prisoners, 18 U.S.C. § 4248, under the Necessary and

Proper Clause. Id. at 1954. The Court pointed to “five considerations” that

supported the conclusion that the statute was constitutional: 

(1) the breadth of the Necessary and Proper Clause, (2) the long

history of federal involvement in this arena, (3) the sound reasons

for the statute’s enactment in light of the Government’s custodial

interest in safeguarding the public from dangers posed by those in

federal custody, (4) the statute’s accommodation of state interests,

and (5) the statute’s narrow scope.

Id. at 1965. These five considerations must be part of our assessment here, but

we note at the outset that these “considerations” are not factors to be balanced

or that may cut for or against the constitutionality of a statute but rather an

articulation of every reason supporting the Court’s conclusion that the civil

commitment atissue in Comstock was constitutional. Comstock does not require

that every one of these considerations be present in every case, nor does

Comstock in any respect purport to overrule the Court’s prior decisional law.

Rather, Comstock demonstrates the distillation and application of existing law

under the Necessary and Proper Clause to a particular statute.

As Comstock and the cases on which it relies make clear, two of the

considerations—the first and third—are and have long been required in every

case decided under the Necessary and Proper Clause: first, that the challenged

statute must “constitute[] a means that is rationally related to the

implementation of a constitutionally enumerated power,” id. at 1956 (citing

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819), and Sabri v. United

States, 541 U.S. 600, 605 (1941)); and, second, that the statute must similarly

reflect a “‘means . . . “reasonably adapted” to the attainment of a legitimate end

under’” an enumerated power, id. at 1957 (quoting Gonzales v. Raich, 545 U.S.

1, 37 (2005) (Scalia, J., concurring) (quoting United States v. Darby, 312 U.S.
No. 08-51185

10

100, 121 (1941))); see also id. at 1961 (“Moreover, § 4248 is ‘reasonably adapted’

to Congress’ power to act as responsible federal custodian (a power that rests,

in turn, on federal criminal statutes that legitimately seek to implement

constitutionally enumerated authority.” (quoting Darby, 312 U.S. at 121)). The

remaining three considerations addressed in Comstock further inform rather

than define the inquiry. See, e.g., id. at 1959 (“We recognize that even a

longstanding history of related federal action does not demonstrate a statute’s

constitutionality. A history of involvement, however, can nonetheless be ‘helpful

in reviewing the substance of a congressional statutory scheme.’” (internal

citations omitted) (quoting Raich, 545 U.S. at 21)). 

We thus address the fundamental inquiry under the Necessary and Proper

Clause, that is, the first and third Comstock factors: is the challenged statute

rationally related to an enumerated power and reasonably adapted to serve that

end? On these questions, the Supreme Court’s decision in Carr offers, as the

Ninth Circuit noted in George, useful guidance. In explaining why

§ 2250(a)(2)(B) should be read differently from § 2250(a)(2)(A), the Court held

that

Congress . . . chose to handle federal and state sex offenders

differently. There is nothing “anomal[ous]” about such a choice. To

the contrary, it is entirely reasonable for Congress to have assigned

the Federal Government a special role in ensuring compliance with

SORNA’s registration requirements by federal sex

offenders—persons who typically would have spent time under

federal criminal supervision. It is similarly reasonable for Congress

to have given the States primary responsibility for supervising and

ensuring compliance among state sex offenders and to have

subjected such offenders to federal criminal liability only when,

after SORNA’s enactment, they use the channels of interstate

commerce in evading a State’s reach.

. . .

. . . Congress in § 2250 exposed to federal criminal liability,

with penalties of up to 10 years’ imprisonment, persons required to
No. 08-51185

8 As quoted above, the prior paragraph to this sentence refers to federal prisoners “who

typically would have spent time under federal criminal supervision.” Id. at 2238 (emphasis

added). Carr therefore does not distinguish between the federal government’s interest in

current and former prisoners;to the contrary,this language suggests that pastfederal criminal

supervision can still be a basis for a sufficient present interest to permit the registration

requirement at issue here.

9 The language in Carr concerning § 2250(a)(2)(A) is not strictly part of the binding

holding of the Court’s opinion, but we are nevertheless hesitant to discard wholesale any

portion of a recent Supreme Court decision discussing this very statute. 

11

register under SORNA over whom the Federal Government has a

direct supervisory interest or who threaten the efficacy of the

statutory scheme by traveling in interstate commerce.

130 S. Ct. at 2238–39; see also George, 625 F.3d at 1130 (quoting Carr, 130 S. Ct.

at 2238, 2239). This quotation from Carr8thus suggests that § 2250(a) makes

SORNA applicable two categories of sex offenders for two distinct reasons: (1)

state offenders who move across state lines and thus threaten to undermine the

sex offender registration laws that every state has enacted, and (2) federal

offenders—not because of any federal concern about their impact on or

relationship to the nationwide registration scheme, but rather because of the

distinct consideration of “the Federal Government[’s] direct supervisory interest”

over former federal prisoners. Id. at 2239.9 This logic traces the authority for

§ 2250, in Kebodeaux’s case, through the Necessary and Proper Clause back

ultimately to the power to “make Rules for the Government and Regulation of

the land and naval Forces.” U.S. CONST., art. I, § 8, cl. 14. That is, inasmuch as

Congress had the power to enact Article 120 of the UCMJ, Congress also has 

the additional power to imprison people who violate th[at] . . . law[],

and the additional power to provide for the safe and reasonable

management of those prisons, and the additional power to regulate

the prisoners’ behavior even after their release. Of course, each of

those powers, like the powers addressed in Sabri, Hall, and

McCulloch, is ultimately “derived from” an enumerated power. 

Comstock, 130 S. Ct. at 1964 (quoting United States v. Hall, 98 U.S. 343, (8 Otto)

345 (1879)).
No. 08-51185

10 As we noted in Young, there are in fact two clauses barring the federal government

as well as the states “from enacting any law ‘which imposes a punishmentfor an act which was

not punishable at the time it was committed; or imposes additional punishment to that then

prescribed . . . .’” 585 F.3d at 202 (quoting Cummings v. Missouri, 71 U.S. (4 Wall.) 277,

325–26 (1867)). Article I, § 9, clause 3, is the clause that restricts the federal government’s

power.

12

Kebodeaux argues that Comstock’s endorsement of Congress’s “power to

regulate prisoners’ behavior even after their release,” id., refers only to the

power to authorize probation and supervised release as part of a criminal

sentence; he then contends that these powers are different in kind from the

obligations imposed under SORNA because they are imposed at the time of the

criminal judgment. This purported distinction conflates the question of the

Article I power to impose an obligation with that of the limitations that the Ex

Post Facto Clause, U.S.CONST., art. I, § 9, cl. 3,10 interposes. To be a permissible

exercise of Congress’s powers, a law must of course both be authorized under

Article I, § 8, and not be prohibited under Article I, § 9, or the various other

provisions of and amendments to the Constitution that pose substantive limits

on Congress’s power. See Comstock, 130 S. Ct. at 1956 (“The question presented

is whether the Necessary and Proper Clause, Art. I, § 8, cl. 18, grants Congress

authority sufficient to enactthe statute before us. In resolving that question, we

assume, but we do not decide,that other provisions of the Constitution—such as

the DueProcess Clause—do not prohibit[the law atissue].”). Supervised release

must be imposed as part of criminal judgment because it is punitive, but our

precedent holds—following the Supreme Court—that the minimal reporting

requirements under SORNA are not punitive within the meaning of the Ex Post

Facto Clause. Young, 585 F.3d at 202–06 (citing Smith, 538 U.S. at 95). Both,

however, are post-release regulations ofthe behavior of former federal prisoners

and derive from the same source of authority as an Article I, § 8 matter. That

is, no one contests that Congress may impose some post-release obligations on
No. 08-51185

11 We recognize that SORNA is not as narrow in the scope of its application as is § 4248,

see Comstock, 130 S. Ct. at 1964–65 (explaining that the law had only been applied to civilly

commit 105 sexually-dangerous persons, and that the law did not extend to persons wholly

released from federal custody), but the limited nature of the obligations SORNA

imposes—notificationandregistration—contrasts sharply withthe indefinite civil commitment

in a Bureau of Prisons mental health facility that § 4248 authorizes so as to counterbalance

SORNA’s more expansive reach.

13

a federal prisoner; this case simply presents the question of whether the fact

that those regulations are, as SORNA’s are, non-punitive, civil collateral

consequences—and thus not subject to Ex Post Facto Clause

limitations—weakens that authority to the point of unconstitutionality.

Kebodeaux offers no authority that it does, and we hold that it does not.

This analysis converges with the fifth Comstock consideration,the narrow

scope ofthe challenged statute. That is, we need not “fear that our holding today

confers on Congress a general ‘police power, which the Founders denied the

National Government and reposed in the States.’” Comstock, 130 S. Ct. at 1964

(quoting Morrison, 529 U.S. at 618). SORNA applies only to narrow, specific

class of federal offenders who Congress has concluded present a high risk to the

public—and imposes only them the non-punitive obligation that they provide

basic registration information to state and local governments.11 The law does

not draw within its sweep all persons convicted of federal crimes, and it does not

impose significant burdens on those to whom it applies. We need not, that is,

even decide the question of whether Congress may permissibly establish nonpunitive collateral consequences for all federal crimes—only sex offenses; and we

may rely on the Ex Post Facto Clause to provide a separate outer boundary on

the kinds of obligations that Congress may require. In short, this limited

extension of federal authority is unlikely to devolve into the general police power

that the Supreme Court has repeatedly cautioned does not rest with the federal

government.
No. 08-51185

14

Turning to the second Comstock consideration—the history of federal

action in the arena, we agree that federal sex offender registration laws are of

relatively recent vintage. See Carr, 130 S. Ct. at 2232 (noting that federal sex

offender registration laws date to 1994). However, we do not consider that

“relatively recent vintage” to be dispositive, and the Court in Comstock did not

make it so.

The fourth consideration, the extent of the statute’s accommodation of

state interests, is addressed to some degree by our opinion in Johnson. We held

there that SORNA as a whole poses no Tenth Amendment problem because the

law imposes no actual mandate on the states: “While SORNA orders sex

offenders traveling interstate to register and keep their registration current,

SORNA does not require the States to comply with its directives. Instead, the

statute allows jurisdictions to decide whether to implementits provisions or lose

ten percent of their federal funding otherwise allocated for criminal justice

assistance.” 632 F.3d at 920 (citing 42 U.S.C. § 16925(a)). By affording states

the option to decline to comply with the law’s specific requirements, SORNA

provides some accommodation of state interests. Further, the subsection in

question addresses the federal interestin a federal convict. See George, 625 F.3d

at 1130.

We therefore read Comstock and Carr as supporting our holding that

Congress had the authority under Article I of the Constitution to devise a

narrow, non-punitive collateral regulatory consequence to this particular highrisk category of federal criminal convictions. Kebodeaux has failed to make the

“plain,” Morrison, 529 U.S. at 607, and “persuasive,” Adam, 296 F.3d at 332,

showing we demand before overturning the considered judgment of the

legislative and executive branches ofthe federal government and departing from

that of the remainder of the judicial branch. 

CONCLUSION
No. 08-51185

15

Accordingly, we conclude that § 2250(a)(2)(A)’s application to intra-state

violations of SORNA by sex offenders convicted under federal law is

constitutional. The judgment of the district court is AFFIRMED. 
No. 08-51185

1 United States v. Whaley, 577 F.3d 254, 258 (5th Cir. 2009); accord United States v.

Guzman, 591 F.3d 83, 90 (2d Cir. 2010); United States v. Gould, 568 F.3d 459, 470-72 (4th Cir.

2009); United States v. Ambert, 561 F.3d 1202, 1210-11 (11th Cir. 2009); United States v. May,

535 F.3d 912, 921-22 (8th Cir. 2008).

16

DENNIS, Circuit Judge, concurring in the judgment and assigning reasons:

Defendant Anthony Kebodeaux, a federally-adjudged sex offender, was

convicted of knowingly failing to update his sex offender registration after his

intra-state change of residence (from El Paso to San Antonio, Texas) as required

by the Sex Offender Registration and Notification Act (“SORNA”), 18 U.S.C.

§ 2250(a)(2)(A) and 42 U.S.C. § 16913. He was sentenced to twelve months and

one day of imprisonment. On appeal, he argues that the Constitution does not

grant Congress the authority to enact § 2250(a)(2)(A) because that provision

regulates purely intra-state activities, rather than any aspect of Congress’s

proper domain of interstate commerce. I conclude, however,that § 2250(a)(2)(A)

is constitutional because it is not a stand-alone statute, but is part of SORNA

and necessary to make SORNA effective in regulating the channels of, and

persons in, interstate commerce.

Under § 2250(a)(2)(B), SORNA makes it a federal offense for a sex offender

convicted under state or federal law to knowingly fail to update his SORNA

registration after traveling in interstate commerce. This court and others have

consistently held that § 2250(a)(2)(B) is a constitutional execution of Congress’s

power to regulate the channels of, and persons in, interstate commerce.1

Kebodeaux does not question those holdings or the constitutionality of

§ 2250(a)(2)(B). He argues only that § 2250(a)(2)(A), in isolation, is

unconstitutional because it is an invalid attempt by Congress to regulate intrastate activities, rather than interstate commerce. 

Kebodeaux’s challenge is without merit because § 2250(a)(2)(A) is an

integral part of SORNA, rather than a stand-alone provision, and, as such, it is

a constitutional regulation of intra-state activities that is necessary and proper
No. 08-51185

2 Carr v. United States, 130 S. Ct. 2229, 2240 (2010) (also quoting 42 U.S.C. § 16901

as stating, “‘Congress in this chapter establishes a comprehensive national system for the

registration of [sex] offenders’” (alteration in original)).

3

Id. at 2239 n.7 (alteration omitted) (quoting Smith v. Doe, 538 U.S. 84, 90 (2003)). 

4

Id. at 2238-39 (second alteration in original) (quoting Jacob Wetterling Crimes

Against Children and Sexually Violent Offender Registration Act, Pub. L. 103-322, tit. XVII,

§ 170101(c), 108 Stat. 2041 (1994) (codified at 42 U.S.C. § 14071(d))). 

5

Id. at 2238. 

6

Id. at 2239.

17

to make SORNA, particularly § 2250(a)(2)(B), effective as a regulation of

interstate commerce. As structured, SORNA is designed to “address the

deficiencies in prior law that had enabled sex offenders to slip through the

cracks” by moving interstate.2It recognizes that “‘every state ha[s] enacted some’

type of [sex offender] registration system”3 and that “Congress . . . conditioned

certain federal funds on States’ adoption of ‘criminal penalties’ on any person

‘required to register under a State program . . . who knowingly fails to so register

and keep such registration current.’”4In this manner, SORNA gave “the States

primary responsibility for supervising and ensuring compliance among state sex

offenders.”5 Through § 2250(a)(2)(B), however, it “exposed to federal criminal

liability . . . persons required to register under SORNA . . . who threaten the

efficacy ofthe statutory scheme by traveling in interstate commerce.”6 Moreover,

Congress did not delegate to the states the additional responsibility of

prosecuting sex offenders convicted under federal law who fail to update their

registrations after in-state residence changes. Rather, SORNA makes such an

intra-state re-registration failure a federal offense amenable to prosecution by

the federal government. Accordingly, § 2250(a)(2)(A) helps to make SORNA’s

regulation of interstate commerce effective by obviating potential sources of

interference or disruption of that objective. For example, had Congress not

criminalized federal sex offenders’ undocumented, intra-state residence changes,
No. 08-51185

7 42 U.S.C. § 16913(a) requires, “A sex offender shall 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. For initial registration purposes only, a sex offender shall also

register in the jurisdiction in which convicted if such jurisdiction is different from the

jurisdiction of residence.” 42 U.S.C. § 16913(c) also provides, “A sex offender shall, not later

than 3 business days after each change of name, residence, employment, or student status,

appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section

and inform that jurisdiction of all changes in the information required for that offender in the

sex offender registry. That jurisdiction shall immediately provide that information to all other

jurisdictions in which the offender is required to register.”

18

there would be no deterrence to their moving intra-state without re-registering.

This would have caused disparate and delayed enforcement of SORNA against

federal sex offenders, allowing them to establish residences in some states as

apparent law abiders, which would have made them difficult to monitor either

in-state or in interstate commerce.

I.

On April 2, 2008, a federal grand jury indicted Kebodeaux on one count of

violating SORNA, 18 U.S.C. § 2250(a).7 Section 2250(a) provides for up to ten

years’ imprisonment for: 

Whoever— 

(1) is required to register under the Sex Offender Registration

and Notification Act; 

(2)(A) is a sex offender as defined for the purposes of the Sex

Offender Registration and Notification Act by reason of a

conviction under Federal law (including the Uniform Code of

Military Justice), the law of the District of Columbia, Indian

tribal law, or the law of any territory or possession of the

United States; or

(B) travels in interstate or foreign commerce, or enters or

leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as

required by the Sex Offender Registration and Notification

Act.

Thus, “Section 2250 imposes criminal liability on two categories of persons who

failto adhere to SORNA’s registration [and updating] requirements: any person

who is a sex offender ‘by reason of a conviction under Federal law, the law of the
No. 08-51185

19

District of Columbia, Indian tribal law, or the law of any territory or possession

of the United States,’ § 2250(a)(2)(A), and any other person required to register

under SORNA who ‘travels in interstate or foreign commerce, or enters or

leaves, or resides in, Indian country,’ § 2250(a)(2)(B).” Carr v. United States, 130

S. Ct. 2229, 2238 (2010) (alteration omitted). Accordingly, “[f]or persons

convicted of sex offenses under federal or Indian tribal law, interstate travel is

not a prerequisite to § 2250 liability.” Id. at 2235 n.3 (citing § 2250(a)(2)(A)). 

Kebodeaux narrowly focuses his challenge exclusively on § 2250(a)(2)(A)’s

punishment of a federal sex offender for knowingly failing to update his

registration after an intra-state relocation. He concedes the constitutional

validity of the balance of SORNA’s provisions. 

II.

Yet, as the Supreme Court recently explained in Carr v. United

States—holding that “[l]iability under § 2250[(a)(2)(B)] . . . cannot be predicated

on pre-SORNA travel,” 130 S. Ct. at 2233—“Section 2250 is not a stand-alone

response to the problem of missing sex offenders; itis embedded in [the] broader

statutory scheme” of the Adam Walsh Child Protection and Safety Act of 2006,

Pub. L. No. 109-248, 120 Stat. 587, which was “enacted to address the

deficiencies in prior law that had enabled sex offenders to slip through the

cracks” of state-based sex offender registration systems. Carr, 130 S. Ct. at 2240

(also quoting 42 U.S.C. § 16901 for the proposition that “‘Congress in this

chapter establishes a comprehensive national system for the registration of [sex]

offenders’” (alteration in original)); see also, e.g., United States v. Whaley, 577

F.3d 254, 259 (5th Cir. 2009) (“SORNA[] focus[es] on the problem of sex offenders

escaping their registration requirements through interstate travel . . . .”); United

States v. Ambert, 561 F.3d 1202, 1212 (11th Cir. 2009) (Congress enacted

SORNA “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
No. 08-51185

20

by traveling or moving to another state without registering therein.’” (citing 42

U.S.C. § 16901)).

Accordingly, in Carr, the Supreme Court described how SORNA’s various

sections work together to further the joint state-federal goals of comprehensive

identification and registration of all state and federal sex offenders and

punishing those who knowingly avoid updating their registrations:

Among its many provisions, SORNA instructs States to maintain

sex-offender registries that compile an array of information about

sex offenders, [42 U.S.C.] § 16914;to make this information publicly

available online, § 16918; to share the information with other

jurisdictions and with the Attorney General for inclusion in a

comprehensive national sex-offender registry, §§ 16919-16921; and

to “provide a criminal penalty that includes a maximum term of

imprisonment that is greater than 1 year for the failure of a sex

offender to comply with the requirements of this subchapter,”

§ 16913(e). Sex offenders, in turn, are required 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,” § 16913(a), and to appear in person periodically to

“allow the jurisdiction to take a current photograph, and verify the

information in each registry in which that offender is required to be

registered,” § 16916. 

Carr, 130 S. Ct. at 2240-41. The Court continued, “By facilitating the collection

of sex-offender information and its dissemination among jurisdictions, these

provisions, not § 2250, stand at the center of Congress’ effort to account for

missing sex offenders.” Id. at 2241. Therefore, 28 U.S.C. § 2250(a)(2)(A), a

subsection of that same statute, clearly was not enacted as a stand-alone

provision, but rather as a complement to the Act’s other provisions. Cf. Whaley,

577 F.3d at 259 (stating that § 2250 is “complementary”to SORNA’s registration

requirements in § 16913 (citing United States v. Dixon, 551 F.3d 578, 582 (7th

Cir. 2008))).

III.
No. 08-51185

21

The Necessary and Proper Clause of the Constitution gives Congress the

power “[t]o make all Laws which shall be necessary and proper for carrying into

Execution” the enumerated powers. U.S. Const. art. 1, § 8, cl. 18. Specifically, in

respect to effectuating the Commerce Clause power, the Supreme Court has

explained thatthe Necessary and Proper Clause provides Congress the authority

to enact“comprehensive legislation to regulate the interstate market” even when

that “regulation ensnares some purely intrastate activity.” Gonzales v. Raich,

545 U.S. 1, 22 (2005). In Raich, the Court held that under the Controlled

Substances Act (“CSA”), 21 U.S.C. § 801 et seq., through the Necessary and

Proper Clause power to effectuate the Commerce Clause authority, Congress

could regulate the intra-state production of marijuana as “Congress could have

rationally concluded thatthe aggregate impact on the national market of allthe”

regulated intra-state activities “is unquestionably substantial.” 545 U.S. at 32.

In Raich, Justice Scalia concurred in the judgment and wrote separately

to explain that, although he “agree[d] with the Court’s holding that the [CSA]

may validly be applied to respondents’ [intra-state] cultivation, distribution, and

possession of marijuana for personal, medicinal use,” his “understanding of the

doctrinal foundation on which that holding rests is, if not inconsistent with that

of the Court, at least more nuanced.” Id. at 33 (Scalia, J., concurring in the

judgment). He explained that the combination of the Necessary and Proper

Clause power and the Commerce Clause authority means that “Congress’s

authority to enact laws necessary and proper for the regulation of interstate

commerce is not limited to laws directed against economic activities that have

a substantial effect on interstate commerce. . . . [Congress can] regulate[] [noneconomic activities] as ‘an essential part of a larger regulation of economic

activity, in which the regulatory scheme could be undercut unless the intrastate

activity were regulated.’” Id. at 36 (quoting United States v. Lopez, 514 U.S. 549,

561 (1995)). “The relevant question is simply whether the means chosen are
No. 08-51185

22

‘reasonably adapted’ to the attainment of a legitimate end under the commerce

power.” Id. at 37 (emphasis added) (quoting United States v. Darby, 312 U.S.

100, 121 (1941)).

Justice Scalia based his interpretation on a long line of Supreme Court

precedents. Id. at 34 (citing Katzenbach v. McClung, 379 U.S. 294, 301-02,

(1964); United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 (1942);

Shreveport Rate Cases, 234 U.S. 342, 353 (1914); United States v. E.C. Knight

Co., 156 U.S. 1, 39-40 (1895) (Harlan, J., dissenting); United States v. Coombs,

37 U.S. (12 Pet.) 72, 78 (1838)). Moreover, he explained, “[W]e implicitly

acknowledged in Lopez . . . [that] Congress’s authority to enact laws necessary

and proper for the regulation of interstate commerce is not limited to laws

directed against economic activities that have a substantial effect on interstate

commerce. Though the conduct in Lopez was not economic, the Court

nevertheless recognized that it could be regulated as ‘an essential part of a

larger regulation of economic activity, in which the regulatory scheme could be

undercut unless the intrastate activity were regulated.’” Id. at 36 (quotingLopez,

514 U.S. at 561). “This statement referred to those cases permitting the

regulation of intrastate activities ‘which in a substantial way interfere with or

obstruct the exercise of the granted power.’” Id. (quoting Wrightwood Dairy Co.,

315 U.S. at 119) (citing Darby, 312 U.S. at 118-19; Shreveport Rate Cases, 234

U.S. at 353). “As the Court put it in Wrightwood Dairy, where Congress has the

authority to enact a regulation of interstate commerce, ‘it possesses every power

needed to make that regulation effective.’” Id. (quoting Wrightwood Dairy, 315

U.S. at 118-19).“Although this power ‘to make . . . regulation effective’ commonly

overlaps with the authority to regulate economic activities that substantially

affectinterstate commerce, and may in some cases have been confused with that

authority, the two are distinct. The regulation of an intrastate activity may be

essential to a comprehensive regulation of interstate commerce even though the
No. 08-51185

23

intrastate activity does not itself ‘substantially affect’ interstate commerce.

Moreover, as the passage from Lopez quoted above suggests, Congress may

regulate even noneconomic local activity if that regulation is a necessary part of

a more general regulation of interstate commerce.” Id. at 37 (alteration in

original) (footnote omitted) (citing Lopez, 514 U.S. at 561). “The relevant

question is simply whether the means chosen are ‘reasonably adapted’ to the

attainment of a legitimate end under the commerce power.” Id.(emphasis added)

(quoting Darby, 312 U.S. at 121).

In United States v. Comstock, 130 S. Ct. 1949 (2010), the majority of the

Supreme Court confirmed Justice Scalia’s view that the Necessary and Proper

Clause empowers Congress to enact legislation that is “reasonably adapted” to

effectuating an enumerated power. Specifically, in Comstock,the Supreme Court

upheld a federal civil-commitment statute that “authorizes the Department of

Justice to detain a mentally ill, sexually dangerous federal prisoner beyond the

date the prisoner would otherwise be released. 18 U.S.C. § 4248.” 130 S. Ct. at

1954. The Court concluded that Congress had such power based upon the

Necessary and Proper Clause’s authorization to implement the Commerce

Clause and other enumerated powers. Id. It explained that to determine whether

a statute was a constitutional exercise of the Necessary and Proper Clause

power,“we look to see whether the statute constitutes a means that is rationally

related to the implementation of a constitutionally enumerated power.” Id. at

1956 (emphasis added); see also id. at 1962 (stating that the statute is

constitutional under the Clause if it “represent[s] a rational means for

implementing a constitutional grant of legislative authority”). The

civil-commitment statute was constitutional, therefore, as it was “‘reasonably

adapted’ to Congress’ power to act as a responsible federal custodian[, ]a power

that rests, in turn, upon federal criminal statutes that legitimately seek to

implement constitutionally enumerated authority,” including the Commerce
No. 08-51185

24

Clause power. Id. at 1961 (emphasis added) (citation omitted) (quoting Darby,

312 U.S. at 121); see id. at 1964 (stating that criminal statutes “often, but not

exclusively” rely on the “Commerce Clause power”).

The Comstock majority described five factors it considered in holding that

the civil-commitment statute was constitutional: “(1) the breadth of the

Necessary and Proper Clause, (2) the long history of federal involvement in

[legislating in relation to ‘prison-related mental health statutes,’ like the one at

issue in Comstock, id. at 1958], (3) the sound reasons for the statute’s enactment

. . . , (4) the statute’s accommodation of state interests, and (5) the statute’s

narrow scope.” Id. at 1965. However, the majority opinion demonstrates that

these factors are merely ways of rephrasing or implementing the notion that

Congress may pass laws rationally related or reasonably adapted to the

effectuation of enumerated powers. For example, in discussing the first factor,

the Court wrote: “We have . . . made clear that, in determining whether the

Necessary and Proper Clause grants Congress the legislative authority to enact

a particular federal statute, we look to see whether the statute constitutes a

means that is rationally related to the implementation of a constitutionally

enumerated power.” Id. at 1956. Regarding the second factor, the Court

explained that the history of federal involvement in an area could not on its own

“demonstrate a statute’s constitutionality”; instead, the Court stated thatit was

a means of analyzing “the reasonableness of the relation between the new

statute and pre-existing federal interests.” Id. at 1958. Similarly, in expounding

the third factor, the Court stated that a court should find the reasons for a

statute sound if they “satisf[y] the Constitution’s insistence that a federal statute

represent a rational means for implementing a constitutional grant of legislative

authority.” Id. at 1962.

Other jurists and commentators have also read the Comstock majority as

holding that a statute that is “rationally related” or “reasonably adapted” to an
No. 08-51185

25

enumerated power is a constitutional expression of the Necessary and Proper

Clause power. See id. at 1966 (Kennedy, J., concurring in the judgment) (“The

Court concludes that, when determining whether Congress has the authority to

enact a specific law under the Necessary and Proper Clause, we look ‘to see

whether the statute constitutes a means that is rationally related to the

implementation of a constitutionally enumerated power.’” (quoting id. at 1956

(majority opinion))); United States v. Yelloweagle, — F.3d —, 2011 WL 1632095,

at *9 (10th Cir. May 2, 2011) (stating that a statute was constitutional under the

Necessary and Proper Clause because it “represent[ed] a rational means for

implementing a constitutional grant of legislative authority”(quoting Comstock,

130 S. Ct. at 1962) (internal quotation marks omitted)); United States v.

Pendleton, 636 F.3d 78, 87 (3d Cir. 2011) (stating that in light of Comstock, to

determine whether a statute is constitutional under the Necessary and Proper

Clause,“the relevantinquiry is simply whether the means chosen are reasonably

adapted to the attainment of a legitimate end under the commerce power or

under other powers that the Constitution grants Congress the authority to

implement” (quoting Comstock, 130 S. Ct. at 1957) (internal quotation marks

omitted)); United States v. Belfast, 611 F.3d 783, 804 (11th Cir. 2010) (stating

that Comstock holds that to determine whether “the Necessary and Proper

Clause grants Congress the legislative authority to enact a particular federal

statute, we look to see whether the statute constitutes a means thatis rationally

related to the implementation of a constitutionally enumerated power” (quoting

Comstock, 130 S. Ct. at 1956) (internal quotation marks omitted)); Al-Bihani v.

Obama, 619 F.3d 1, 25 n.11 (D.C. Cir. 2010) (Kavanaugh, J., concurring in the

denial of rehearing en banc) (suggesting the same reading of Comstock); Mead

v. Holder, — F. Supp. 2d —, 2011 WL 611139, at *16 (D.D.C. Feb. 22, 2011)

(“Courts look to see whether the challenged statute constitutes a means that is

‘rationally related to the implementation of a constitutionally enumerated power’
No. 08-51185

8 See also Gill v. Office of Pers. Mgmt., 699 F. Supp. 2d 374, 393 (D. Mass. 2010) (stating

that the second Comstock factor, history, is only a proxy to determine “the reasonableness of

the relation between the new statute and pre-existing federal interests” (quoting Comstock,

130 S. Ct. at 1952) (internal quotation marks omitted)); Massachusetts v. U.S. Dep’t of Health

& Human Servs., 698 F. Supp. 2d 234, 250 (D. Mass. 2010) (same).

9 See also 16 Am. Jur. 2d Constitutional Law § 107 (2011) (stating that the second

Comstock factor, history,is a proxy fordetermining “the reasonableness ofthe relationbetween

the new statute and pre-existing federal interests”); Michael C. Dorf, The Supreme Court’s

Decision About Sexually Dangerous Federal Prisoners: Could It Hold the Key to the

Constitutionality of the Individual Mandate to Buy Health Insurance?, Findlaw.com (May 19,

2010), http://writ.news.findlaw.com/dorf/20100519.html (“[T]he seven Justices in the

[Comstock] majority [] were fully comfortable with federal power extending to areas that are

not independently regulable, so long as regulation in those areas is reasonably related to

regulation that is within the scope of congressional power.”). 

26

when determining whether itfalls within Congress’s power under the Necessary

and Proper Clause.” (quoting Comstock, 130 S. Ct. at 1956)); Virginia ex rel.

Cuccinelli v. Sebelius, 702 F. Supp. 2d 598, 611 (E.D. Va. 2010) (“[T]he relevant

inquiry is simply whether the means chosen are reasonably adapted to the

attainment of a legitimate end under the commerce power or under other powers

that the Constitution grants Congress the authority to implement.” (alteration

in original) (quoting Comstock, 130 S. Ct. at 1957) (internal quotation marks

omitted));8 16A Am. Jur. 2d Constitutional Law § 343 (2011) (“In determining

whether the Necessary and Proper Clause grants Congress the legislative

authority to enact a particular federal statute,the courtlooks to see whether the

statute constitutes a means that is rationally related to the implementation of

a constitutionally enumerated power.” (citing Comstock, 130 S. Ct. 1949)); Robert

R. Harrison, Health Care Reform in the Federal Courts, 57Fed.Law., Sept. 2010,

at 52, 56 (“In Comstock, the Court noted that the scope of the Necessary and

Proper Clause is limited by the inquiry ‘whether the means chosen are

reasonably adapted to the attainment of a legitimate end under the commerce

power or other powers that the Constitution grants Congress the authority to

implement.’” (quoting Comstock, 130 S. Ct. at 1956-57)).9
No. 08-51185

27

IV.

Accordingly, I conclude that § 2250(a)(2)(A)’s application to intra-state

violations of SORNA by sex offenders convicted under federal law is necessary

and proper to—that is, rationally related and reasonably adapted to—SORNA’s

statutory scheme, which is designed to regulate the interstate movement of sex

offenders, using Congress’s Commerce Clause power. See Carr, 130 S. Ct. at

2240 (citing 42 U.S.C. § 16901). In particular, I conclude that § 2250(a)(2)(A) is

a constitutional exercise of Congress’s Necessary and Proper Clause power

because it is rationally related and reasonably adapted to § 2250(a)’s other

subsection, § 2250(a)(2)(B), which we have already upheld as a proper exercise

of the Commerce Clause power. Whaley, 577 F.3d at 258. For these reasons, I

agree that the judgment of the district court must be affirmed.

Although I agree with the majority in affirming the judgment of the

district court, I cannot join the majority opinion because it departs from the

doctrinal framework established by the Supreme Courtfor analyzing Commerce

Clause legislation, such as SORNA and its provisions that are at issue in the

present case. Contrary to the clear teachings of the Supreme Court in Carr and

this court in Whaley, the majority interprets § 2250(a)(2)(A) as a stand-alone

statute that is rationally related only to a pre-existing military penal statute,

rather than as a necessary and integral part of the Commerce-Clause-based

SORNA. Majority Op. 11 (stating that § 2250(a)(2)(A) does not reflect “any

federal concern about [federal sex offenders’] impact on or relationship to the

nationwide registration scheme”that SORNA was designed to create). By trying

to justify SORNA’s § 2250(a)(2)(A) as rationally related to the military law under

which Kebodeaux was convicted and imprisoned, rather than reasonably

adapted to SORNA’s regulation of interstate commerce, which §2250(a)(2)(A)

was enacted with and made an integral part of, the majority relies upon an

altogether different legislative power that is, at best, only tangentially related
No. 08-51185

10 In support ofthis proposition, the George panel cited Whaley, 577 F.3d at 258; Gould,

568 F.3d at 470-72; Ambert, 561 F.3d at 1210; United States v. Hinckley, 550 F.3d 926, 940

(10th Cir. 2008); and May, 535 F.3d at 921. George, 625 F.3d at 1130. 

28

to SORNA’s registration requirement. Consequently, I believe that the majority

has fallen into serious error in reading Comstock to arrogate vast revisionary

powers to judges, allowing them to uphold as necessary and proper any piece of

legislation, regardless of the vehicle by which Congress enacted it, so long as the

judges can in retrospect see a rational relationship between that law and some

enumerated power. 

Contrary to the majority’s assertion, United States v. George, 625 F.3d

1124 (9th Cir. 2010), provides no support for its reasoning. See Majority Op. 6-7,

14. George addressed the constitutionality of § 2250(a)(2)(A) in response to the

defendant’s claim that the provision fell “outside of Congress’s commerce clause

powers.” 625 F.3d at 1129. The panel then stated that “Congress had the power

under its broad commerce clause authority to enact the SORNA.” George, 625

F.3d at 1130.10 It explained that the Commerce Clause power includes the

authority “to make all laws that are ‘necessary and proper’ for the

accomplishment of [Congress’s] commerce clause power,” id. at 1129 (quoting

U.S. Const. art. I, § 8, cl. 18), which in turn includes regulating “intrastate

activity that has a substantial effect on interstate commerce,” id.(citing Wickard

v. Filburn, 317 U.S. 111, 125 (1942)). 

The George panel further quoted Carr, 130 S.Ct. at 2238, for the

proposition that “it is entirely reasonable for Congress to have assigned to the

federal government a special role in ensuring compliance with SORNA’s

registration requirements by federal sex offenders—persons who typically would

have spent time under federal criminal supervision.” Id. at 1130. Immediately

after this,the George panel also stated:“Compare UnitedStates v. Comstock, 130

S. Ct. 1949 (2010) (upholding under the Necessary and Proper Clause a statute
No. 08-51185

29

that provided for the civil commitment of sexually dangerous federal prisoners

beyond the date they would otherwise be released).” Id. Thus, rather than

holding that § 2250(a)(2)(A) is constitutional because it is rationally related and

reasonably adapted to a “federal interest in a federal convict”—as the majority

reads the opinion, Majority Op. 14 (citing George, 625 F.3d at 1130)—George

performed the analysis I suggest above, acknowledging that § 2250(a)(2)(A) is

part of the broader SORNA statutory scheme, whose aim is to regulate sex

offenders’ interstate movement, and upholding § 2250(a)(2)(A) as a necessary

and proper extension of that scheme. In doing so, it relied on the reasoning of

Comstock, in which a majority of the Justices approved Justice Scalia’s

Commerce Clause analysis in Raich. See also United States v. Ross, — F. Supp.

2d —, 2011 WL 1481394, at *13 (D.D.C. Apr. 19, 2011) (citing George, 625 F.3d

at 1130, in support of the statement that “[t]he Court agrees with ‘every circuit

that has examined the issue in concluding that § 2250 is a legitimate exercise of

congressional Commerce Clause authority.’”(alteration omitted) (quoting United

States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010)); United States v. Cotton, 760

F. Supp. 2d 116, 139-40 (D.D.C. 2011) (same).

What is more, the Tenth Circuit has now upheld § 2250(a)(2)(A) as

constitutional on the same ground that I urged in my previous concurring

opinion. United States v. Yelloweagle, — F.3d —, 2011 WL 1632095 (10th Cir.

May 2, 2011). In that case, Yelloweagle “was previously convicted of a federal sex

offense,” “failed to register as required [by SORNA], [and] was indicted by

federal authorities under the [SORNA] enforcement provision,” § 2250(a)(2)(A).

Yelloweagle, 2011 WL 1632095, at *1. On appeal, “Yelloweagle contended that

[§ 2250(a)(2)(A)] lacked a jurisdictional basis and therefore was

unconstitutional.” Id. Citing and quoting that Kebodeaux concurring opinion, the

Tenth Circuit concluded that § 2250(a)(2)(A) was constitutional because it was

necessary and proper to facilitate SORNA’s constitutional regulation of sex
No. 08-51185

11 Further supporting my view that George upheld § 2250(a)(2)(A) as necessary and

proper to effectuate the exercise of Congress’s Commerce Clause power, the Tenth Circuit not

only relied on George for its holding, but also never suggested that George could be read as

supporting any other analysis, nor that the Tenth Circuit’s reasoning had split it from the

Ninth Circuit. 

12 Yelloweagle’s assumption that § 16913 is constitutional under the Commerce Clause

is consistent with the affirmative holding of this court in Whaley that § 16913 is a

constitutional exercise of the necessary and proper power to effectuate the Commerce Clause

power, and that § 2250(a)(2)(B) is a constitutional exercise of the Commerce Clause power.

Whaley, 577 F.3d at 258-61.

30

offenders’ interstate movement, which was authorized by Congress’s power

under the Commerce Clause. Id. at *12 (also quoting UnitedStates v. Kebodeaux,

634 F.3d 293, 301 (5th Cir. 2011) (Dennis, J. concurring in the judgment), for the

proposition “that § 2250(a)(2)(A) is ‘a necessary and integral part of the

commerce-clause-based SORNA’”). 

TheTenth Circuit in Yelloweagle reached this conclusion by first surveying

“The Sex Offender Registration and Enforcement Regime.” Id. at *1. As a result,

it recognized that SORNA was enacted as a comprehensive statutory scheme “to

keep track of sex offenders” who move interstate. Id. at *2 (quoting George, 625

F.3d at 1129) (internal quotation marks omitted).11 Accordingly,the Yelloweagle

court concluded that while the defendant focused his challenge narrowly on one

of SORNA’s provisions, § 2250(a)(2)(A), it was not proper for the panelto analyze

the provision as if it were a stand-alone statute. Id. at *12. Instead, the court

held that § 2250(a)(2)(A) was constitutional as part of SORNA’s statutory

scheme. Id. Therefore, the court explained that it was key that Yelloweagle had

“waived his challenge to § 16913,” allowing the panel to presume that § 16913

was a valid exercise of the Commerce Clause power. Id. at *9, *11.12

The Tenth Circuit panel then concluded that “the Necessary and Proper

Clause Gives Congress the Authority to Enact § 2250(a)(2)(A).” Id. at *10. “As

the Supreme Court recently stated: ‘[I]n determining whether the Necessary and

Proper Clause grants Congress the legislative authority to enact a particular
No. 08-51185

31

federal statute, we look to see whether the statute constitutes a means that is

rationally related to the implementation of a constitutionally enumerated

power.’” Id. at *9 (alteration in original) (quoting Comstock, 130 S. Ct. at 1956).

“[W]e have before the court an undisputedly valid exercise of Congress’s

Commerce Clause power—viz.,the sex offender registration scheme of § 16913.”

Id. at *12. Therefore, “[i]t seems beyond peradventure that the criminal

enforcement provision of § 2250(a)(2)(A) is ‘rationally related or reasonably

adapted to the effectuation’ of the sex offender registration regime of § 16913.”

Id. (quoting Kebodeaux, 634 F.3d at 297 (majority opinion) (in turn citing

Comstock, 130 S. Ct. at 1956)). “Section 2250(a)(2)(A) ‘clearly was not enacted as

a stand-alone provision, but rather as a complement to [SORNA’s] other

provisions.’” Id. (alteration in original) (quoting Kebodeaux, 634 F.3d at 301

(Dennis, J., concurring in the judgment)). “[I]n a concurring opinion in

Kebodeaux, Judge Dennis highlighted the relationship between § 2250(a)(2)(A)

and the registration regime of § 16913 . . . . ‘Section 2250(a)(2)(A) helps to make

SORNA’s regulation of interstate commerce effective by obviating potential

sources of interference or disruption of that objective. For example, had Congress

not criminalized federal sex offenders’ undocumented, intra-state residence

changes, there would [be] no deterrence to their moving intra-state without

reregistering. This would have caused disparate and delayed enforcement of

SORNA against federal sex offenders, allowing them to establish residences in

some states as apparent law abiders, which would have made them difficult to

monitor either in-state or in interstate commerce.’” Id. at *12-13 (third alteration

in original) (quoting Kebodeaux, 634 F.3d at 299 (Dennis, J., concurring in the

judgment)). Therefore, the Tenth Circuit panel stated, “we conclude that

Congress has the authority under the Necessary and Proper Clause to enact

§ 2250(a)(2)(A) in order to criminally enforce its validly enacted registration

provision, § 16913.” Id. at *13.
No. 08-51185

32

* * *

Consistent with the Supreme Court and Circuit authority cited above, and

unlike the majority, I would not treat § 2250(a)(2)(A) as a stand-alone statute.

Instead, I believe we must analyze whether it is constitutional as part of

SORNA’s statutory scheme. Because (1) the Supreme Court and circuit courts

have consistently explained that SORNA’s statutory scheme is intended to

regulate the interstate movement of sex offenders, and thus was passed

pursuant to Congress’s Commerce Clause power; (2) Comstock teaches that a

majority of the Supreme Court has now approved and adopted Justice Scalia’s

Commerce Clause analysis in Raich; and (3) § 2250(a)(2)(A) clearly facilitates

SORNA’s regulation of sex offenders’ interstate movement, because it is

rationally related and reasonably adapted to preventing sex offenders from

“slipping through the cracks” of state-based registration schemes, I would uphold

§ 2250(a)(2)(A) as a necessary and proper extension of Congress’s Commerce

Clause power to enact SORNA’s other provisions, particularly § 2250(a)(2)(B).

Doing so would be consistent with every other circuit that has considered the

issue. 

For these reasons, I concur only in the judgment upholding the

constitutionality of § 2250(a)(2)(A) and affirming Kebodeaux’s conviction and

sentence.