PUBLISH UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. LESTER RAY NICHOLS, Defendant - Appellant. No. 14-3041

Appeal from the United States District Court for the District of Kansas (D.C. No. 6:13-CR-10106-JTM-1)

Timothy J. Henry, Assistant Public Defende r (Melody Brannon Evans, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Wichita, Kansas, for Appellant. James A. Brown, Assistant United States A ttorney (Barry R. Grissom, United States Attorney, with hi m on the brief), Office of the Unite d States Attorney, Topeka, Kansas, for Appellee.

Before McHUGH, McKAY, and BALDOCK, Circuit Judges.

McHUGH , Circuit Judge. FILED United States Court of Appeals Tenth Circuit 

### December 30, 2014
Elisabeth A. Shumaker Clerk of Court-2- I. INTRODUCTION Lester Nichols is a convicted sex offe nder who left the United States without updating his status on the federal sex offend er registry. He was brought back to the United States and charged with failing to re gister, in violation of the Sex Offender Registration and Notification Act (SORNA ), 18 U.S.C. § 2250(a). On appeal, he challenges his conviction based on two th eories: (1) SORNA’s updating requirement does not apply in situations like his wher e the sex offender moves from a SORNA jurisdiction to a non-SORNA jurisdiction, an d (2) SORNA’s delegation of authority to the Attorney General to dete rmine SORNA’s retroactive a pplication is unconstitutional. We reject both arguments and therefor e affirm Mr. Nichols’s conviction.
II. BACKGROUND In 2003, Mr. Nichols was convicted of tr aveling interstate with the intent to engage in sex with a minor, in violation of 18 U.S.C. § 2423(b). He was sentenced to 120 months imprisonment. Although Mr. Nichol s’s conviction occurred before SORNA’s 2006 enactment, the U.S. A ttorney General issued a ru le in 2007 extending the requirements of SORNA “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. This rule was issued pur suant to the authority Congre ss delegated to the Attorney General under SORNA. See 42 U.S.C. § 16913(d) (“The Attorney General shall have the authority to specify the app licability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . .”). Mr. Nichols, as a-3- preenactment sex offender, is thus require d to comply with SORNA’s registration requirements. By 2012, Mr. Nichols had been released from prison and was placed under federal supervision in the District of Kansas. Up until that time, he had complied with both the Kansas and SORNA sex offender registrati on requirements. In November 2012, Mr. Nichols took a plane from Kansas City to Manila, Philippines, w ithout updating his sex offender registry. One month later, he wa s arrested by Philippine law enforcement officers and was turned over to State Depa rtment custody for deportation to the United States. Mr. Nichols was charged with and indi cted for one count of failure to update a registration as required by SORNA. See 18 U.S.C. § 2250(a). Mr. Nichols moved to dismiss the indictme nt. He argued before the district court that SORNA did not require him to register as a sex offender while he was in the Philippines because, once in the Philippines, he did not reside in a U.S. jurisdiction. Mr. Nichols also contended SORNA’s delegation of authority to the Attorney General to determine SORNA’s appli cation to preenactment sex offenders like him is unconstitutional. The district court rejected Mr. Ni chols’s first argument in light of United States v. Murphy , 664 F.3d 798 (10th Cir. 2011), where we held that a defendant violated SORNA when he moved from Utah to Belize without updating his status on the sex offender registry. The district court also rejected M r. Nichols’s nondelegation argument. The court acknowledged the lack of binding Tenth Circ uit precedent addressing this issue, but-4- noted our observation in dicta that SORNA’s registration provision does not violate the nondelegation doctrine. United States v. Carel , 668 F.3d 1211, 1214 (10th Cir. 2011). The district court also looked to United States v. Rickett , 535 F. App’x 668 (10th Cir. 2013) (unpublished), wherein we rejected a nondelegation argument under plain error review because, absent controlling precedent, application of SORNA to a preenactment offender was not plainly unconstitutional. Fina lly, the district court explained that the clear weight of authority from other circuits has rejected nondelega tion challenges to 42 U.S.C. § 16913(d). Accordingly, the district court ruled SORNA’s delegation of authority under § 16913(d) is not unconstitutional and denied M r. Nichols’s motion to dismiss. Mr. Nichols thereafter entered a conditional guilty plea, reserving the right to appeal both issues. He now does so and we exercise our jurisdiction under 28 U.S.C. § 1291.
III. DISCUSSION Mr. Nichols appeals both elements of the district court ruling. He first contends SORNA’s requirement that an offender keep his registration current does not apply to offenders who change their residence to a n on-SORNA jurisdiction. In so arguing, he asks us to overturn our precedent in United States v. Murphy , wherein we held, “a sex offender, upon changing his residence, [mus t] update his registration in a jurisdiction involved . . . even if he di d not establish a new residence in a SORNA jurisdiction.” 664 F.3d 798, 803 (10th Cir. 2011). Mr. Nichols a lternatively argues we should vacate his conviction on the basis that 42 U.S.C. § 1 6913(d) creates an unconstitutional delegation of authority by permitting the Attorney General to determ ine SORNA’s application to-5- preenactment sex offenders. These issues “involve statutory interpretations of and constitutional challenges to SORNA,” which we review de novo, “interpreting the words of the statute in light of the pur poses Congress sought to serve.” United States v. Hinckley , 550 F.3d 926, 928 (10th Cir. 2008) (brackets and in ternal quotation marks omitted), abrogated on other grounds by Reynolds v. Unites States , 132 S. Ct. 975 (2012). A. Extraterritorial Changes of Residence under SORNA SORNA requires sex offenders to “registe r, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” 42 U.S.C. § 16913(a). SORNA define s “jurisdiction” as including U.S. states, territories, and Indi an reservations, but not foreign nations. Id. § 16911(10). It defines “resides” as “the loca tion of the individual's home or other place where the individual habitually lives.” Id. § 16911(13). When a sex offender has a change of residence, he “keep[s] the registration curre nt” by “not later than 3 business days after each change of . . . residence . . . appear[ing] in person in at least 1 jurisdiction involved pursuant to subsection (a) of th is section and inform[ing] that jurisdiction of all changes in the information required for that o ffender in the sex offender registry.” Id. § 16913(c). In regard to his residence, the sex offender mu st provide for the registry “[t]he address of each residence at which the sex of fender resides or will reside.” Id. § 16914(a)(3). Mr. Nichols argues the plain language of th ese SORNA provisions indicates that the-6- requirement to “keep the registration current” does not apply to sex offenders who have a change of residence to a non-SORNA jurisdiction. We squarely addressed this issue in United States v. Murphy , 664 F.3d 798 (10th Cir. 2011). The defendant in Murphy was a registered sex offender who had resided in a correctional facility in Utah, de parted from Utah by bus, arrive d in California, then took a taxi to Mexico, and ultimately ended up in Belize where he lived for six months. Id. at 799–800. Mr. Murphy was depo rted to the United States and was charged with and convicted of failing to update his sex offe nder registry, in violation of 18 U.S.C. §2250(a). Id. at 800. On appeal, Mr. Murphy challe nged his conviction on the basis that he had no obligation to update his registra tion after he left a SORNA jurisdiction for a non-SORNA jurisdiction. Id. We affirmed Mr. Murphy’s conviction, interpreting SORNA otherwise. We interpreted the phrase “jurisdiction where th e offender resides” from § 16913(a) and term “residence” as used in § 16913(c) as two di fferent concepts—the former meaning “the state where the individual keeps his home or habitually lives” and the latter meaning “a specific dwelling place . . . where an offender hab itually lives.” Id. at 800–801. And we concluded the two terms trigger different ob ligations: “the offender’s jurisdiction is where he must keep his regist ration current, while the offende r’s residence is a specific piece of registry information, a chan ge of which sparks a reporting duty.” Id. at 801. From this interpretation, we drew thre e conclusions. First, “abandoning one’s living place constitutes a change in residence under SORNA.” Id. Second, “[w]hen an-7- offender leaves a residence in a state, and then leaves the st ate entirely, that state remains a jurisdiction involved.” Id. at 803. And third, “a reporti ng obligation does not disappear simply because an individual manages to relocate to a non-SORNA jurisdiction before the three-day deadline for upda ting a registration has passed.” Id. Applying this interpretation to Mr. Murphy’s case, we ru led, “a legal obligation to update his registration attached” when Mr. Murphy left the correctional fa cility “while he was still in Utah, and not when he arrived in Belize.” Id. at 804. And even though Mr. Murphy “was no longer living in Utah when his failure to register became punishable” (i.e., three days after his change of residence), “Uta h remained a ‘jurisdi ction involved’ under SORNA because it was his current jurisdic tion when the reporting obligation arose.” Id. We therefore affirmed his conviction for failure to register under § 2250(a). Earlier this year we reaffirmed Murphy ’s interpretation of SORNA. United States
v. Lewis , 768 F.3d 1086, 1091–92 (10th Cir. 2014). We explained in Lewis that

“ Murphy ’s logic [is] controlling” and concluded, “The effect of Murphy ’s holding is that the abandonment of a permanent residence tr iggers a sex offender’s obligation to update his registration” and “the departure district remains a ‘jurisdiction involved’ even after the sex offender has left the state.” Id. Mr. Nichols contends that Murphy misinterpreted SORNA and we should therefore overturn it. In so arguing, M r. Nichols relies primarily on three sources: (1) Judge Lucero’s di ssenting opinion in Murphy , 664 F. 3d at 806, which asserted that the majority “impermissibly reje cts the statutory definition of ‘resides’ . . . . [and] avoids-8- a plain text reading of the statute by giving two different meanings to the defined term ‘resides’”; (2) the Eighth Circuit’s opinion in United States v. Lunsford , 725 F.3d 859, 862 (8th Cir. 2013), which disagreed with Murphy ’s interpretation of SORNA; and (3) the U.S. Supreme Court’s decision in Carr v. United States, 560 U.S. 438, 447–49 (2010), which looked to the plain language of § 2250 and concluded Congress’s use of present tense verbs “strongly supports a forw ard-looking construction” and therefore the elements of § 2250 must be met se quentially for a violation to occur. Regardless of the merits of these argumen ts, we are bound by the majority opinion
in Murphy . Indeed, one panel of this court cannot overr ule the judgment of another panel “absent en banc consideration . . . [or] an intervening Supreme Court decision that is contrary to or invalidates our previous analysis.” United States v. Brooks , 751 F.3d 1204, 1209 (10th Cir. 2014) (internal quotation marks omitted). Neither exception to our horizontal stare decisis rule is present he re. Mr. Nichols attempts to characterize Carr as the type of contrary Supreme Cour t authority that would invalidate Murphy . But Carr was decided before Murphy and is therefore not an inte rvening decision. And although Mr. Nichols correctly notes that Murphy did not address the Supreme Court’s Carr decision, our later Lewis decision did, ruling that Carr “does not dictate an alternative conclusion” to the conclusion reached in Murphy . 768 F.3d at 1091 n.4. Murphy is therefore controlling. Applying Murphy ’s interpretation of SORNA to this case, we affirm Mr. Nichols’s conviction under § 2250(a). By boarding the plane to the Philippines, Mr. Nichols-9- abandoned his residence in Kans as—a “jurisdiction involved.” This change in residence triggered a registry obligation in Kansas, which Mr. Nichols did not fulfill. Mr. Nichols therefore violated § 2250(a) by fa iling to update his registry in Kansas within three days of his change in residence.
B. Delegation under SORNA Mr. Nichols alternatively argues we sh ould vacate his SORNA conviction on the basis that SORNA’s delegation of authority to the Atto rney General to determine SORNA’s preenactment appli cation, 42 U.S.C. § 16913( d), is unconstitutional. Mr. Nichols insists that in applying the no ndelegation doctrine to this case, we should apply a heightened “meaningful constraint ” standard, instead of the more lenient “intelligible principles” st andard, because Congress dele gated authority under SORNA that relates to the imposition of criminal lia bility. We disagree bot h as to the relevant legal standard and the application of that st andard and conclude th at § 16913(d) does not violate the nondelegation doctrine. The Nondelegation Doctrine 1. Under the U.S. Constituti on, “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.” U.S. C ONST ., art. I, § 1. From this language and based on separation of powers principles, the Sup reme Court “has derived the nondelegation doctrine: that Congress may not constitutionally delegate its legislative power to another branch of Government.” Touby v. United States , 500 U.S. 160, 165 (1991). Nonetheless, Congress may delegate authority to a differen t branch, and “[s]o-10- long as Congress shall lay down by legislativ e act an intelligible pr inciple to which the person or body authorized to exercise the delegated author ity is directed to conform, such legislative action is not a forbidde n delegation of legislative power.” Mistretta v. United
States , 488 U.S. 361, 372 (1989) (brackets and internal quotation marks omitted). The Supreme Court has further expl ained that an intelligible pr inciple exists so long as “Congress clearly delineates [1] the general po licy, [2] the public agency which is to apply it, and [3] the boundaries of this delegated authority.” Id. at 372–73. 1 Delegation under 42 U.S.C. § 16913(d) 2. Applying this standard to SORNA, we co ncluded that § 16913( d) does not violate the nondelegation doctrine. The language of SORNA demonstrates, first, that Congress clearly delineated the general policy upon which SORNA is based. Section 16901 expresses the congressional policy embodied in SORNA: “to protect the public from sex

1 Under this standard, the Supreme Cour t has struck down statutes delegating power to an administrative agency on only two occasions, “one of which provided literally no guidance for the exercise of dis cretion, and the other of which conferred authority to regulate the entire economy on th e basis of no more precise a standard than stimulating the economy by assuring ‘fair competition.’” Whitman v. Am. Trucking Associations , 531 U.S. 457, 474 (2001) (citing Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)). Panama Refining Co. and Schechter Poultry constitute the “outer limits” of the Supreme Court’s nondelegation preceden t and demonstrate the Court’ s reticence “to second-guess Congress regarding the permissible degree of po licy judgment that can be left to those executing or applying the law.” Id. at 474–75 (internal qu otation marks omitted); see also United States v. Rickett , 535 F. App’x 668, 675 (10th Cir. 2013) (unpublished), cert. denied, 134 S. Ct. 1529 (2014) (“[T]he Sup reme Court has never expressly overruled Schechter Poultry or Panama Refining; so the doctrine, even if dead, has never received a proper burial.”).-11- offenders and offenders agai nst children” by establishing “a comprehensive national system for the registration of those offe nders.” This policy statement conveys the intelligible principles upon which the Attorney General’s delegated authority must be based. See United States v. Kuehl , 706 F.3d 917, 920 (8th Cir. 2013) (concluding that SORNA’s broad policy statement contained in § 16901 is “suffici ent to provide an intelligible principle for delegation”); United States v. Goodwin , 717 F.3d 511, 516 (7th Cir. 2013) (explaining that § 16901 “provi des sufficient guidan ce to the Attorney General”). Second, Congress clearly delineated “the public agency which is to apply” the authority by specifying the A ttorney General as the exec utive official to whom it delegated authority under SORNA. Third, Congress also clearly delineated th e boundaries of the authority it delegated to the Attorney General. Se ction 16913(d) delegates to th e Attorney General a single, narrow decision: to determine SORNA’s app lication to preenactment sex offenders. Under this delegation, “the Attorney Ge neral cannot do much more than simply determine whether or not SORNA applies to those individuals.” United States v. Guzman , 591 F.3d 83, 93 (2nd Cir. 2010). This circum scribed question is fu rther “constrained by the legislative determinati ons that Congress made in other sections of SORNA,” including the provisions pronouncing which crimes are subject to SORNA, § 16911, where the offender must register, § 16913(a ), the timeframe within which the offender must register, § 16913(b), the method of registration, § 169 13(b)–(c), and the information-12- the offender must include in the registry, § 16914(a). United States v. Cooper , 750 F.3d 263, 272 (3d Cir.), cert. denied, 135 S. Ct. 209 (2014). Cong ress also explicitly outlined the elements of the failure-to-register crim e in § 2250. The author ity Congress delegated under § 16913(d) is theref ore bounded by the limited nature of the retroactive determination itself and the guidance Cong ress provided in other SORNA provisions. Accordingly, we hold that § 16913(d) meets the Supreme Court’s intelligible principles test because Congress clearly de lineated SORNA’s general policy, the public agency to which Congress delegated its authority, and the boundaries of this delegation.
See Mistretta , 488 U.S. 372–73. Mr. Nichols asserts, however, that we should apply the more rigorous “meaningfully constrains” standard instead of the “intelligible principle” standard because § 16913(d) delegates Co ngress’s authority to regulat e a statute with criminal consequences. In so argui ng, Mr. Nichols relies on Touby v. United States , in which the Supreme Court acknowledged the possibility that “something mo re than an ‘intelligible principle’ is required when Congress aut horizes another Branch to promulgate regulations that contemplate criminal sanc tions,” but declined to resolve the issue because, even under a more stringent standard, the provision at issue in Touby “meaningfully constrains the A ttorney General’s discretion to define criminal conduct.” 500 U.S. 160, 165–66 (1991). Mr. Nichols c ontends that this case is the appropriate vehicle to institute the more searching “m eaningfully constrains ” standard, and that § 16913(d) fails under that standard.-13- The Third Circuit recently confronted this issue in Cooper , 750 F.3d at 270–71. The Cooper court recognized the Supreme Court left open the question whether a heightened “meaningfully constrains” sta ndard applies to Congress’s delegation of authority involving statutes with criminal implications. Id. at 271. But as the Third Circuit further explained, the meaningful cons traints standard “has been referenced in only a handful of cases, none of which set forth factors or a substantive analytical framework against which to assess whether a specific delegation satisfies the standard.” Id. The Third Circuit therefore refused to inv oke the meaningfully constrains standard “[u]ntil the Supreme Court gives us clear guidance to the contrary.” Id. We likewise decline to abandon the well-settle d “intelligible principle” standard for the undeveloped “meaningfully constrains” st andard. And because Congress provided an intelligible principle to whic h the Attorney General must conform in exercising the authority delegated under § 16913(d), we join ou r sister circuits 2 in concluding that § 16913(d) does not violate the nondelegation doctrine. 3

2 United States v. Cooper , 750 F.3d 263, 271–72 (3d Cir.), cert. denied, 135 S. Ct. 209 (2014); United States v. Richardson , 754 F.3d 1143, 1146 (9th Cir. 2014); United States v. Sampsell , 541 F. App’x 258, 259– 60 (4th Cir. 2013) (unpub lished) (per curiam); United States v. Goodwin , 717 F.3d 511, 516–17 (7th Cir. 2013); United States v. Kuehl , 706 F.3d 917, 919– 20 (8th Cir. 2013); United States v. Parks , 698 F.3d 1, 7–8 (1st Cir. 2012); United States v. Felts , 674 F.3d 599, 606 (6th Cir. 2012); United States v. Guzman , 591 F.3d 83, 92– 93 (2nd Cir. 2010); United States v. Whaley , 577 F.3d 254, 263–64 (5th Cir. 2009); United States v. Ambert , 561 F.3d 1202, 1213 (11th Cir. 2009).

3 We acknowledge the concern some fe deral judges have expressed with Congress’s delegation of such an important question. See Reynolds v. United States , 132 Continued . . .-14- IV. CONCLUSION For these reasons, we AFFIRM Mr. Nichols’ s conviction for failure to register in violation of 18 U. S.C. § 2250(a).

___________________ ___________________ Cont. S. Ct. 975, 986 (2012) (Scalia , J., dissenting) (opining that § 16913(d)’s delegation of authority to the Attorney Gene ral “sail[s] close to the wind with regard to the principle that legislative powers are nondelegable”); United States v. Hinckley , 550 F.3d 926, 948 (10th Cir. 2008) (Gorsuch, J., concurring) (applying principl es of constitutional avoidance to prevent an inte rpretation that would allow th e Attorney General to choose “willy nilly” between either of “two extremes” or anything in between in determining SORNA’s application to preenactment offend ers). Although we agree that Congress’s delegation of this important decision is puzzling, see Cooper , 750 F.3d at 272, we conclude that it nonetheless passes constitutional muster.14-3041, United States v. Nichols McKAY , Circuit Judge, concurring. I concur with the panel’s opinion with regard to the nondelegation doctrine question. I also concur that, under these facts, our decision in United States v. Murphy , 664 F.3d 798 (10th Cir. 2011), binds us with regard to the application of SORNA, and compels this court to determine that Kansas remained a “jurisdiction involved” under the Act even after Mr. Nichols abandoned his residence there. I write separately to express disagreement with the majority in Murphy , agreement with the dissent in Murphy by Judge Lucero, and my belief that consideration of this case by the full en banc court would be appropriate. Judge Lucero’s interpretation of SORNA’s registration requirements accords with that of the Eighth Circuit in United States v. Lunsford , 725 F.3d 859 (8th Cir. 2013). Lunsford held that an individual who abandons a residence in a jurisdiction covered by SORNA to move to a jurisdiction not covered by SORNA no longer resides in a “jurisdiction involved” under the Act and therefore has no obligation to register. Id. at 861. I am persuaded by this reading of SORNA’s plain language, however, the majority opinion in Murphy currently controls this case, and I accordingly concur.