FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JUSTIN ALLAN RICHARDSON,

Defendant-Appellant.

No. 11-10346

D.C. No.

3:10-cr-00087-

ECR-VPC-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Jr., Senior District Judge, Presiding

Argued and Submitted

April 16, 2012—San Francisco, California

Submission Vacated May 4, 2012

Resubmitted June 11, 2014

Filed June 19, 2014

Before: Stephen Reinhardt and Mary H. Murguia, Circuit

Judges, and David A. Ezra, District Judge.*

Per Curiam Opinion

* The Honorable David A. Ezra, District Judge for the U.S. District

Court for the District of Hawaii, sitting by designation.
2 UNITED STATES V. RICHARDSON

SUMMARY**

Criminal Law

Affirming a conviction for violating the registration

requirements of the Sex Offender Registration and

Notification Act, the panel held that (1) SORNA’s delegation

of authority to the Attorney General to determine the

applicability of SORNA’s registration requirements to preSORNA sex offenders is consistent with the requirements of

the non-delegation doctrine; and (2) SORNA does not violate

the Tenth Amendment’s anti-commandeering principle.

The panel wrote that the defendant’s arguments that

SORNA’s registration requirements violate the Commerce

Clause and the Ex Post Facto Clause are foreclosed in this

circuit.

The panel resolved a sentencing issue in a concurrentlyfiled memorandum disposition.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. RICHARDSON 3

COUNSEL

Dan C. Maloney (argued), Research & Writing Attorney,

Ramon Acosta, Assistant Federal Public Defender, Renee L.

Valladares, Federal Public Defender, Reno, Nevada, for

Defendant-Appellant.

Elizabeth A. Olson (argued), Assistant United States

Attorney, Robert L. Ellman, Appellate Chief, Daniel G.

Bogden, United States Attorney, District of Nevada, Reno,

Nevada, for Plaintiff-Appellee.

OPINION

PER CURIAM:

Justin Allan Richardson appeals his conviction and

sentence for violating the registration requirements of the Sex

Offender Registration and Notification Act (“SORNA”). He

raises several constitutional challenges to SORNA and argues

that the district court erred in calculating his criminal history.

We affirm.1

BACKGROUND

In 1994, Richardson was convicted of lewd and lascivious

acts with a child in a California state court and ordered to

register as a sex offender. On July 21, 2010, a federal grand

jury indicted Richardson for failing to register as a sex

offender as required by SORNA. Richardson moved to

1 We consider and resolve the sentencing issue in a memorandum

disposition filed concurrently herewith.
4 UNITED STATES V. RICHARDSON

dismiss the indictment, arguing that SORNA is

unconstitutional because it violates the non-delegation

doctrine, the Tenth Amendment, the Commerce Clause, and

the Ex Post Facto Clause. The district court denied

Richardson’s motion, and he subsequently pled guilty to the

single-count indictment without a plea agreement. However,

Richardson objected to thePresentence Investigation Report’s

assessment of one criminal history point for a 2000

misdemeanor conviction that resulted in a sentence of time

served. Richardson argued that he was not represented by

counsel during that proceeding. The district court overruled

his objection and sentenced him to twenty-seven months’

imprisonment. Richardson appealed. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

DISCUSSION

Richardson argues that SORNA is unconstitutional on the

grounds that it violates the non-delegation doctrine, the Tenth

Amendment, the Commerce Clause, and the Ex Post Facto

Clause. We reject each of these arguments.

I. Non-Delegation Doctrine

Richardson argues that SORNA’s provisions allowing the

Attorney General to determine the applicability of its

registration requirementsto pre-SORNA sex offenders violate

the non-delegation doctrine, which prohibits Congress from

“delegat[ing] its legislative power to another branch of

government.” Touby v. United States, 500 U.S. 160, 165

(1991). Three years ago, we summarized the origins, history,

and requirements of the non-delegation doctrine:
UNITED STATES V. RICHARDSON 5

The Supreme Court has onlytwice invalidated

legislation under this doctrine, the last time

being seventy-five years ago. Article I, § 1 of

theConstitution provides that “[a]ll legislative

Powers herein granted shall be vested in a

Congress of the United States.” In practice, of

course, Congress delegates authority

frequently. The relevant question is how,

when, and under what circumstances

Congress may delegate its authority. The

Supreme Court’s answer: “[W]hen Congress

confers decisionmaking authority upon

agencies Congress must lay down by

legislative act an intelligible principle to

which the person or body authorized to act is

directed to conform.” Whitman v. Am.

Trucking Ass’ns, 531 U.S. 457, 472 (2001)

(emphasis and internal quotation marks

omitted). “Only if [a court] could say that

there is an absence of standards for the

guidance of the Administrator’s action, so that

it would be impossible in a proper proceeding

to ascertain whether the will of Congress has

been obeyed, would [it] be justified in

overriding its choice of means for effecting its

declared purpose. . . .” Yakus v. United States,

321 U.S. 414, 426 (1944). In applying the

intelligible principle test to congressional

delegations, the Supreme Court “has been

driven by a practical understanding that in our

increasingly complex society, replete with

ever changing and more technical problems,

Congress simply cannot do its job absent an

ability to delegate power under broad general
6 UNITED STATES V. RICHARDSON

directives.” Mistretta [v. United States,

488 U.S. 361, 372 (1989)].

Hepting v. AT & T Corp. (In re Nat’l Sec. Agency

Telecommunications Records Litig.), 671 F.3d 881, 895–96

(9th Cir. 2011) (alterations in original).

Richardson’s specific contention is that Congress violated

the non-delegation doctrine when it delegated its authority to

the Attorney General to determine the applicability of

SORNA’s registration requirements to pre-SORNA sex

offenders. See 42 U.S.C. § 16913(d). Every court of appeals

to have considered the question has concluded that Congress

did not violate the Constitution when it delegated this

implementation authority to the Attorney General. See, e.g.,

United States v. Cooper, No. 13-2324, 2014 WL 1386816, at

*8 (3d Cir. Apr. 10, 2014) (“Applying the intelligible

principle test, we conclude that Congress did not violate the

nondelegation doctrine in delegating responsibility to the

Attorney General to determine the applicability of SORNA’s

registration requirements for pre-Act offenders in 42 U.S.C.

§ 16913(d). In enacting SORNA, Congress laid out the

general policy, the public agency to apply this policy, and the

boundaries of the delegated authority. This is all that is

required under the modern nondelegation jurisprudence.”);

United States v. Goodwin, 717 F.3d 511, 516 (7th Cir. 2013)

(“SORNA directs the Attorney General to exercise his

discretion in a manner consistent with the intelligible

principle of ‘protecting the public’ from sex offenders and

establishing a ‘comprehensive’ registry; the statute identifies

the Attorney General as the official to exercise this delegated

authority; and the Attorney General’s authority is narrowly

restricted to determining the applicability of SORNA to

offenders whose crimes predate the statute’s enactment.”);
UNITED STATES V. RICHARDSON 7

United States v. Whaley, 577 F.3d 254, 263–64 (5th Cir.

2009) (“SORNA’s statement of purpose, to ‘establish[ ] a

comprehensive national system’ of sex offender registration

to ‘protect the public from sex offenders and offenders

against children,’ 42 U.S.C. § 16901, is an intelligible

principle that guides the Attorney General in exercising his

discretion.” (alteration in original)).2 We are persuaded by

2

See also United States v. Fernandez, 710 F.3d 847, 850 (8th Cir. 2013)

(“SORNA’s relatively narrow delegation of authority to the Attorney

General is guided by an intelligible principle and is consistent with the

requirements of the nondelegation doctrine.”); United States v. Felts,

674 F.3d 599, 606 (6thCir. 2012) (“Congress’s delegations under SORNA

possess a suitable ‘intelligible principle’ and are “well within the outer

limits of [the Supreme Court’s] nondelegation precedents.” (alteration in

original)); United States v. Guzman, 591 F.3d 83, 93 (2d Cir. 2010) (“The

Attorney General’s authority under SORNA is highly circumscribed.

SORNA includes specific provisions delineating what crimes require

registration, 42 U.S.C. § 16911; where, when, and how an offender must

register, id. § 16913; what information is required of registrants, id.

§ 16914; and the elements and penalties for the federal crime of failure to

register, 18 U.S.C. § 2250. If § 16913(d) gives the Attorney General the

power to determine SORNA’s ‘retroactivity,’ it does so only with respect

to the limited class of individuals who were convicted of covered sex

offenses prior to SORNA’s enactment; the Attorney General cannot do

much more than simply determine whether or not SORNA applies to those

individuals and how they might comply as a logistical matter. If, on the

other hand, § 16913(d) gives the Attorney General the authority only to

implement SORNA with respect to all sex offenders, whether or not they

were convicted pre-enactment, then the scope of that authority is even

more circumscribed. The Supreme Court has upheld much broader

delegations than these.” (citations omitted)); United States v. Ambert,

561 F.3d 1202, 1213–14 (11thCir. 2009) (“We are satisfied that Congress

has provided the Attorney General with ‘intelligible principles’ in the Sex

Offender Registration and Notification Act. Congress has undeniably

provided the Attorney General with a policy framework in § 16901 to

guide his exercise of discretion under § 16913(d); and it has made a series

of legislative judgments in §§ 16911, 16913, 16914 and 2250 that
8 UNITED STATES V. RICHARDSON

the reasoning of our colleagues in these other circuits and

adopt it as our own. Accordingly, we hold that SORNA’s

delegation of authority to the Attorney General to determine

the applicability of SORNA’s registration requirements to

pre-SORNA sex offenders is consistent with the requirements

of the non-delegation doctrine.

II. Tenth Amendment

Richardson next argues that SORNA violates the Tenth

Amendment. He contends that SORNA unlawfully forces

states and state officials to create sex offender registries that

meet federal standards and to comply with SORNA’s many

other complex and onerous requirements. In other words, he

argues that SORNA violates the Tenth Amendment’s anticommandeering principle. See generally Printz v. United

States, 521 U.S. 898, 935 (1997).

Again, we join every other court of appeals that has

considered the question in holding that SORNA does not

violate the Tenth Amendment’s anti-commandeering

principle and adopt the other circuits’ reasoning for doing so.

See United States v. Felt, 674 F.3d 599, 606–08 (6th Cir.

2012); United States v. Johnson, 632 F.3d 912, 920 (5th Cir.

2011); Kennedy v. Allera, 612 F.3d 261, 269 (4th Cir. 2010).

SORNA does not compel states or state officials to comply

with its requirements; rather, Congress engaged in a

constitutionally valid exercise of its spending power by

conditioning the receipt of certain federal funds on the

implementation of SORNA. See 42 U.S.C. §§ 16924,

16925(a); Felts, 674 F.3d at 608 (“Congress through SORNA

constrict the Attorney General’s discretion to a narrow and defined

category.”).
UNITED STATES V. RICHARDSON 9

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 in place (and risk

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

maintain funding).”); Johnson, 632 F.3d at 920 (“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 implement its

provisions or lose ten percent of their federal funding

otherwise allocated for criminal justice assistance.” (citations

omitted)); Kennedy, 612 F.3d at 269 (“[W]hile SORNA

imposes a duty on the sex offender to register, it nowhere

imposes a requirement on the State to accept such

registration.”). Accordingly, Richardson’s Tenth Amendment

challenge fails.

III. Commerce Clause and Ex Post Facto Clause

Finally, Richardson argues that SORNA’s registration

requirements violate the Commerce Clause and Ex Post Facto

Clause. These challenges are foreclosed in this circuit. See

United States v. Cabrera-Gutierrez, No. 12-30233, 2014 WL

998173, at *3 (9th Cir. Mar. 17, 2014) (Commerce Clause);

United States v. Shoulder, 738 F.3d 948, 954 (9th Cir. 2013)

(Ex Post Facto Clause challenge to the SORNA registration

requirements); United States v. Elkins, 683 F.3d 1039, 1045

(9th Cir. 2012) (same). We therefore reject them.
10 UNITED STATES V. RICHARDSON

CONCLUSION

We hold that Richardson’s non-delegation doctrine,Tenth

Amendment, Commerce Clause, and Ex Post Facto Clause

challenges to SORNA fail.

AFFIRMED.