1

The Honorable David L. Piester, United States Magistrate Judge for the

District of Nebraska. 

2

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 08-3156

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Jerry Lee Zuniga, *

* [PUBLISHED]

Appellant. *

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Submitted: May 11, 2009

Filed: September 1, 2009

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Before RILEY, SMITH, and COLLOTON, Circuit Judges.

___________

PER CURIAM.

Jerry Lee Zuniga filed a motion to suppress and a motion to dismiss his

indictment charging him with failure to register as a sex offender after traveling in

interstate commerce, in violation of 18 U.S.C. § 2250(a). Following a hearing, the

magistrate judge1

 recommended that Zuniga's motions be denied. The district court2

adopted the magistrate judge's Report and Recommendation in its entirety. Zuniga
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then entered into a conditional plea agreement with the government in which he

reserved his right to appeal from the denial of his motion to dismiss. The district court

sentenced Zuniga to 15 months' imprisonment, followed by five years of supervised

release. Zuniga now brings this appeal challenging the constitutionality of the federal

Sex Offender Registration and Notification Act (SORNA), 42 U.S.C.

§§ 16901–16991, and its corresponding criminal offense statute, 18 U.S.C. § 2250.

We affirm.

I. Background

In 1998, Zuniga pleaded guilty to unlawful sexual activity with a minor and

attempted forcible sex abuse, both third degree felonies under Utah law. In December

2005, Zuniga registered as a sex offender pursuant to Utah's sex offender registration

law. He was also advised of his continuing obligation to register annually and within

five days of every change of residence. Authorities from the Utah Sex Offender

Registration Program sent notice to Zuniga on July 11, 2006, reminding him that his

registration was due by July 31, 2006.

Zuniga stipulated that on or about February 6, 2007, he traveled by bus from

Utah to Nebraska. He resided in Nebraska until November 2007, when federal

authorities arrested him pursuant to a warrant. A federal grand jury indicted Zuniga

for violating SORNA by traveling in interstate commerce and knowingly failing to

register as a sex offender in Nebraska.

Zuniga moved to dismiss the indictment on various constitutional grounds. The

magistrate judge recommended that the district court deny his motion and the district

court adopted the magistrate judge's Report and Recommendation. Zuniga then

entered into a conditional plea agreement with the government in which he reserved

his right to appeal from the denial of his motion to dismiss. The district court

sentenced him to 15 months' imprisonment, followed by five years of supervised

release. Zuniga appeals, challenging the constitutionality of SORNA. 
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II. Discussion

Zuniga first argues that SORNA did not apply to him at the time that he traveled

in interstate commerce. Second, he argues that SORNA violates the Ex Post Facto

Clause, the Commerce Clause, and the non-delegation doctrine. Each of these

arguments, including the applicability of SORNA, were disposed of by this court in

United States v. May, 535 F.3d 912 (8th Cir. 2008). We have previously held that

"[o]ne panel of this Court is not at liberty to disregard a precedent handed down by

another panel." Drake v. Scott, 812 F.2d 395, 400 (8th Cir. 1987). Only the court en

banc may overrule circuit precedent, subject to a limited exception in the case of an

intervening Supreme Court decision that is inconsistent with circuit precedent. Young

v. Hayes, 218 F.3d 850, 853 (8th Cir. 2000). Mindful of this precedent, Zuniga

candidly admits that he is advancing this appeal solely to preserve the issues for en

banc or Supreme Court review. We will address each of his issues to ensure that they

were previously disposed of in their entirety by this court in May.

Finally, Zuniga argues that SORNA impermissibly encroaches upon state power

in violation of the Tenth Amendment. As all of his arguments raise constitutional

issues or are federal issues requiring statutory interpretation, we will apply a de novo

standard of review. May, 535 F.3d at 915.

A. Applicability of SORNA

Zuniga argues that SORNA is inapplicable to him because his travel in

interstate commerce occurred before the Attorney General issued an interim ruling

designating the applicability of SORNA to offenders convicted before SORNA's date

of the enactment. But May has already expressly foreclosed this argument. Id. at

915–19.

SORNA provides, in pertinent part: 

(a) In general. 
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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. 

(b) Initial registration. 

The sex offender shall initially register—

(1) before completing a sentence of imprisonment with respect to the

offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense,

if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current. 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) 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. 

(d) Initial registration of sex offenders unable to comply with

subsection (b). 

The Attorney General shall have the authority to specify the applicability

of the requirements of this title to sex offenders convicted before the

enactment of this Act [enacted July 27, 2006] or its implementation in a

particular jurisdiction, and to prescribe rules for the registration of any

such sex offenders and for other categories of sex offenders who are

unable to comply with subsection (b).

42 U.S.C. § 16913(a)–(d).
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On February 28, 2007, the Attorney General issued an interim rule, effective

February 28, 2007, which states:

The requirements of [SORNA] apply to all sex offenders, including sex

offenders convicted of the offense for which registration is required prior

to enactment of that Act. 

28 C.F.R. § 72.3.

In May, the defendant traveled in interstate commerce after enactment of

SORNA but before the Attorney General made the statute retroactive. 535 F.3d at 915.

The defendant argued that SORNA did not apply to him because his interstate travel

occurred prior to the Attorney General's interim ruling. Id. We disagreed holding that

SORNA's registration requirements applied to the defendant at the time that SORNA

was enacted in 2006. Id. at 916. We concluded that the Attorney General's interim rule

did not apply to the defendant because he was required to keep his registration current

prior to the enactment of SORNA. Id. at 919. Therefore, the interim rule did not affect

the defendant. Id.

Zuniga, who traveled in interstate commerce after SORNA's enactment but

before the Attorney General issued its interim rule, is in the same position as was the

defendant in May. Therefore, like the defendant in May, Zuniga was already obligated

to register under SORNA, and the interim rule did not affect this obligation. Because

we may not overrule prior precedent, Drake, 812 F.2d at 400, we hold that SORNA

applied to Zuniga at the time he traveled in interstate commerce.

Zuniga's reliance on the Tenth Circuit decision in United States v. Husted, 545

F.3d 1240 (10th Cir. 2008), in support of his position is misplaced. In Husted, the

Tenth Circuit held SORNA to be inapplicable where the defendant traveled in

interstate commerce before the Attorney General issued its interim rule and before the
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enactment of SORNA. Id. at 1241. Because Zuniga traveled after the enactment of

SORNA, Husted is inapposite. The more analogous Tenth Circuit case is United

States v. Lawrance, 548 F.3d 1329 (10th Cir. 2008). In Lawrance, the defendant

traveled in interstate commerce without registering after enactment of SORNA but

before the Attorney General's interim rule. Id. at 1336. The Tenth Circuit held that

SORNA applied to the defendant. Id. Therefore, we conclude that SORNA applies.

B. Ex Post Facto Clause

Zuniga argues that because SORNA increases the punishment for failure to

register, it violates the Ex Post Facto Clause. He also argues that because SORNA

punishes him for conduct that occurred before SORNA was applicable to him, it

violates the Ex Post Facto Clause. We previously rejected these arguments in May,

535 F.3d at 919–20.

The United States Constitution states that "[n]o Bill of Attainder or Ex Post

Facto law shall be passed." U.S. Const. art. I, § 9. In May, we first had to determine

whether "Congress intended SORNA to impose punishment for a pre-existing crime"

or whether Congress intended "'to enact a regulatory scheme that is civil and

nonpunitive.'" May, 535 F.3d at 919 (quoting Smith v. Doe, 538 U.S. 84, 92 (2003)).

We noted that Congress stated that its purpose in creating SORNA was "'to protect the

public from sex offenders and offenders against children, and in response to the

vicious attacks by violent predators.'" Id. at 920 (quoting 42 U.S.C. § 16901).

Therefore, Congress's intent was to "create a public safety measure." Id. at 920.

We must further examine the statute to determine "if the statutory scheme is so

punitive that it negates Congress's intention to deem the act civil." Id. "[O]nly the

clearest proof will suffice to override legislative intent and transform what has been

denominated a civil remedy into a criminal penalty." Id. (internal citations omitted).

"The only punishment that can arise under SORNA comes from a violation of § 2250,

which punishes convicted sex offenders who travel in interstate commerce after the
3

Section 16911(1) of 42 U.S.C. defines sex offender as "an individual who was

convicted of a sex offense."

4

As in May, Zuniga argues that the ten-year punishment imposed by SORNA

violates the Ex Post Facto Clause because it is greater than any federal punishment he

could have received. We addressed and disposed of this very issue in May. May

referenced the Lyncher Act, 42 U.S.C. § 14072(I), a federal statute that subjected

failure-to-register violations with a maximum ten years' imprisonment. May, 535 F.3d

at 920 n.4 (citing § 14072(I)). Therefore, Zuniga's argument necessarily fails. 

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enactment of SORNA and who fail to register as required by SORNA." Id. Of course,

Congress clearly intended SORNA to apply to defendants convicted before SORNA's

passage.3

 Congress's intent was to create a "comprehensive national system" for

registering sex offenders. Id. (quoting 42 U.S.C. § 16901). In May, we held that the

statute does not punish an individual for previously being convicted of a sex offense,

but it instead merely "punishes an individual for traveling in interstate commerce and

failing to register." May, 535 F.3d at 920. Therefore, the statute does not violate the

Ex Post Facto Clause.4 See id. Moreover, as we have already determined, Zuniga is

subject to SORNA. See Part II.A.

C. Commerce Clause

Zuniga also argues that SORNA violates the Commerce Clause because it does

not establish a nexus to interstate commerce. According to Zuniga, a jurisdictional

element is not sufficient to provide the link between the statute and interstate

commerce. We previously addressed this issue in May. 535 F.3d at 921–22. 

Congress's authority to regulate commerce among the states includes the power

to regulate: (1) "the use of the channels of interstate commerce"; (2) "the

instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities"; and (3) "those

activities having a substantial relation to interstate commerce." United States v. Lopez,

514 U.S. 549, 558–59 (1995). 
5

Zuniga also contends that, because the Attorney General bypassed the notice

and comment requirements of the APA, § 16913(d) is unenforceable. The APA

requires a federal agency to provide at least 30 days' notice of a proposed rule in the

Federal Register to give interested persons an opportunity to comment. 5 U.S.C. § 553

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In May, we noted that SORNA requires the government to prove that the

defendant traveled in interstate commerce and thereafter failed to register under

SORNA. 535 F.3d at 921 (citing 18 U.S.C. § 2250(a)(2)(B)). We held that SORNA

"derives its authority from each prong of Lopez—and most specifically, the ability to

regulate 'persons or things in interstate commerce' and 'the use of the channels of

interstate commerce.'" Id. Therefore, SORNA provides a "sufficient nexus to interstate

commerce." Id. Zuniga's argument fails.

D. Non-Delegation Doctrine

Zuniga argues that SORNA violates the non-delegation doctrine because

Congress improperly delegated authority to legislate the scope of SORNA to the

Attorney General. But he recognizes that a litigant in his position lacks standing to

raise this challenge. May, 535 F.3d at 921. 

Section 16913(b) of 42 U.S.C. requires sex offenders to initially register before

completing imprisonment. Congress enacted § 16913(d) to grant the Attorney General

the authority to enforce the statute against sex offenders convicted before enactment

of the Act or to "sex offenders unable to comply with subsection b." 42 U.S.C.

§ 16913(d). We held in May that "[b]ecause [the defendant] was not a person unable

to register before SORNA's enactment and § 16913(d)'s authorizing the Attorney

General to promulgate rules regarding its applicability does not even apply to him,

[the defendant] lacks standing to raise this challenge." 535 F.3d at 921. Section

16913(b) applied because of the age of the May defendant's conviction. Id. at 918–19.

Because Zuniga, like the defendant in May, was able to register pursuant to SORNA

but failed to do so, § 16913(d) does not apply to him. Therefore, Zuniga lacks

standing to bring a challenge to that section. See id. at 921.5
(d). This requirement may only be bypassed upon a showing of "good cause." United

States v. Gavrilovic, 551 F.2d 1099, 1103 (8th Cir. 1977). The Attorney General

averred that the notice and comment period should be avoided because any delay in

implementing the statute would "impair immediate efforts to protect the public from

sex offenders." 72 Fed. Reg. 8894, 8896. Zuniga argues that this reasoning does not

amount to "good cause." But, as we held above, Zuniga lacks standing to bring a

challenge to § 16913(d). Therefore, we need not address this argument. 

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E. Tenth Amendment

Finally, Zuniga argues that SORNA is unconstitutional because it compels local

law enforcement to accept registrations from federally-mandated sex offender

programs in violation of the Tenth Amendment, which 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. We

need not address the merits of Zuniga's Tenth Amendment argument because he does

not have standing to raise this issue. United States v. Hacker, 565 F.3d 522, 525–26

(8th Cir. 2009).

In Hacker, the defendant also argued that SORNA violated the Tenth

Amendment by encroaching on state power. Id. at 525. Although the parties in Hacker

did not raise standing as an issue, we addressed it sua sponte. Id. at 525–26 & n.3. We

joined the majority of circuits and held that "a private party does not have standing to

assert that the federal government is encroaching on state sovereignty in violation of

the Tenth Amendment absent the involvement of a state or its instrumentalities." Id.

at 526 (citing Oregon v. Legal Servs. Corp., 552 F.3d 965, 972 (9th Cir. 2009);

Brooklyn Legal Servs. Corp. B v. Legal Servs. Corp., 462 F.3d 219, 234–36 (2d Cir.

2006); Medeiros v. Vincent, 431 F.3d 25, 33–36 (1st Cir. 2005); United States v.

Parker, 362 F.3d 1279, 1284 (10th Cir. 2004)).

Here, just as in Hacker, Zuniga is challenging SORNA in his individual

capacity, and he does not assert the "involvement of a state or its instrumentalities."
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Id. at 526. Nor has Zuniga argued that his interests are aligned with any state's interest.

See id. at 527 n.6 (leaving open the possibility of a Tenth Amendment challenge

where the private party asserts that his interests are aligned with a state's interest).

Because Zuniga is a private party, he lacks standing to raise a Tenth Amendment

challenge to SORNA.

III. Conclusion

The judgment of the district court is affirmed. 

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