United States Court of Appeals

For the Eighth Circuit

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No. 12-2767

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Adam Ray Fernandez

lllllllllllllllllllll Defendant - Appellant

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No. 12-2774

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Jonathon Patrick Curry

lllllllllllllllllllll Defendant - Appellant

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No. 12-2784

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

William Earl Mefford

lllllllllllllllllllll Defendant - Appellant

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No. 12-2787

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Terrent Allen Chronister

lllllllllllllllllllll Defendant - Appellant

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No. 12-3358

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

John Sharp

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Western District of Arkansas - Harrison

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 Submitted: March 11, 2013

 Filed: April 1, 2013

[Published]

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Before MURPHY, SMITH, and GRUENDER, Circuit Judges.

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PER CURIAM.

In these consolidated appeals from the Western District of Arkansas the

appellants all challenge the constitutionality of a provision of the Sex Offender

Registration and Notification Act (SORNA), 42 U.S.C. § 16901 et seq, under which

they were convicted. Appellants argue that SORNA violates the nondelegation

doctrine of the United States Constitution by giving the Attorney General authority

to determine its applicability to sex offenders convicted before the statute's

enactment. The district courts upheld the constitutionality of the Act. The 1

defendants appeal, and we affirm.

SORNA requires persons convicted of sex crimes to register and update

information about their whereabouts, employment, and other personal information. 

For persons whose convictions predate the passage of SORNA, the Act specifies that

the “Attorney General shall have the authority to specify the applicability of the

requirements of this subchapter.” 42 U.S.C. § 16913(d). Although SORNA was

passed in 2006, the Attorney General did not explicitly apply its registration

The Honorable Judge Robert Dawson, United States District Judge for the

1

Western District of Arkansas, and the Honorable Judge Jimm Larry Hendren, United

States District Judge for the Western District of Arkansas.

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requirements to preenactment offenders until 2007. This resulted in conflicting

decisions by the courts as to whether the Act applied to preenactment offenders from

the date of its enactment in 2006 or only after the Attorney General’s decision in

2007. This court had decided that the Act applied to SORNA offendersfrom the date

of its enactment. United States v. May, 535 F.3d 912, 919 (8th Cir. 2008). 

Subsequently the Supreme Court ruled to the contrary, holding that SORNA did not

apply to preenactment offenders until such time as the Attorney General “validly

specifies that the Act's registration provisions apply to them,” which he did not do

until 2007. Reynolds v. United States, 132 S.Ct. 975, 980 (2012). 

Appellants have been convicted of failing to register under SORNA; their

original sex offenses all predated the statute's enactment. They argue that the

§ 16913(d) grant of power to the AttorneyGeneral to determine the law's applicability

to preenactment offenders violated the nondelegation doctrine of the United States

Constitution. Prior to Reynolds, we had rejected this argument because we

understood SORNA's registration requirements to apply to such offenders even

without any action by the Attorney General. Appellants lacked standing at that time

to raise the question now before the court. May, 535 F.3d at 921. After Reynolds

was decided, the Supreme Court remanded several similar cases for our court to

consider on the merits. We in turn remanded them to the district courtsin which their

cases originated. The presiding district courtsrejected the nondelegation challenges,

and the defendants appeal.

We review constitutional challenges de novo. United States v. Howell, 505

F.3d 960, 963 (8th Cir. 2010). The nondelegation doctrine arises from Article I,

section I of the Constitution, which vests Congress with all legislative powers. This

has been interpreted by the Supreme Court to mean that Congress cannot “transfer”

or “delegate” its authority to enact legislation to another branch. See Panama Ref.

Co. v. Ryan, 293 U.S. 388, 421 (1935). Congress can nevertheless delegate authority

to the executive branch to implement enacted legislation, see U.S. Const. Art. II, § 3,

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if it provides an “intelligible principle” to the delegee. Mistretta v. United States, 488

U.S. 361, 372 (1989). So long as Congress “clearly delineatesthe general policy, the

public agency which is to apply it, and the boundaries of the delegated authority,” it

has provided an “intelligible principle.” Am. Power & Light Co. v. Sec. & Exch.

Comm’n, 329 U.S. 90, 105 (1946).

The Supreme Court has upheld delegations when the "intelligible principle"

guiding the administrator was to set "fair and equitable" prices, Yakus v. United

States, 321 U.S. 414, 426 (1944), and when the FCC regulates broadcast licenses "as

public interest, convenience, or necessity" require, Nat’l Broad. Co. v. United States,

319 U.S. 190, 225–226 (1943). Indeed, with the exception of two cases in 1935,

Panama Ref. Co., 293 U.S. at 388, A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935), the Supreme Court has uniformly rejected every nondelegation

challenge it has considered. See Mistretta, 488 U.S. at 373.

This court recently considered and rejected an identical challenge to SORNA

in United States v. Kuehl, 2013 U.S. App. LEXIS 3373 (8th Cir. February 19, 2013). 

We concluded that SORNA’s broad policy statement that it was designed “to protect

the public from sex offenders and offenders against children” was “sufficient to

provide an intelligible principle for delegation.” Id. at *5–6 (citing 42 U.S.C.

§ 16901). This guiding principle compares favorably to other policy statements

which the Court has previously upheld as providing “intelligible principles.” See,

e.g., Nat’l Broad. Co., 319 U.S. at 226. We also observed in Kuehl that SORNA’s

delegation is relatively narrow, only permitting the Attorney General to determine

whether SORNA’s requirements apply to offenders whose convictions predate its

enactment. This is a considerably more limited and narrow question than, for

example, Congress’ decision to allow the United States Sentencing Commission to

create federal sentencing guidelines. See Kuehl, 2013 U.S. App. at *6–7; Mistretta,

488 U.S. at 374–79.

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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. Moreover, we remain bound by our earlier decision in Kuehl. 

We thus affirm the district court decisions under review here.

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