May 22, 2019

Tenth Circuit: Sex Offender Must Keep Registration Current Even When Residing in Non-SORNA Jurisdiction

The Tenth Circuit Court of Appeals issued its opinion in United States v. Nichols on Tuesday, December 30, 2014.

Lester Nichols is a convicted sex offender who moved from the United States to Manila, Philippines, without updating his information on the federal sex offender registry. He was arrested in the Philippines one month later and deported to the United States, where he was charged with and indicted for failure to update his registration information in violation of the Sex Offender Notification and Registration Act (SORNA). Mr. Nichols moved to dismiss the indictment, arguing that SORNA did not require him to register in a non-SORNA jurisdiction, and also contesting as unconstitutional SORNA’s delegation to the Attorney General to determine its application to sex offenders whose predicate offense occurred prior to SORNA’s enactment.

The district court relied on Tenth Circuit precedent in United States v. Murphy, 664 F.3d 798 (10th Cir. 2011), and rejected Nichols’ first argument. The district court also rejected Nichols’ nondelegation argument, noting that despite the lack of binding Tenth Circuit precedent, dicta from the Tenth Circuit and precedent from other circuits has upheld SORNA’s delegation of authority. Nichols appealed on both points.

The Tenth Circuit first addressed the requirement for sex offenders to register in non-SORNA jurisdictions. In Murphy, the defendant was released from prison in Utah and moved to Belize. The Tenth Circuit analyzed SORNA’s registration requirements and decided that leaving Utah triggered the requirement for the offender to register, even though he moved to a non-SORNA jurisdiction. Nichols contended that the dissent in Murphy should guide the Tenth Circuit in his case, but the court could not overturn its prior precedent without an intervening Supreme Court decision or en banc consideration, and affirmed the district court’s determination on this issue.

Nichols next argued that Congress’s delegation of authority to the Attorney General to determine its preenactment application was unconstitutional, and the Tenth Circuit should apply a heightened “meaningful constraint” standard in evaluating the constitutionality. The Tenth Circuit first determined that Congress clearly delineated the general policy on which SORNA is based, and the policy conveyed to the Attorney General intelligible guiding principles. Congress also clearly delineated the boundaries of the Attorney General’s authority, and the Tenth Circuit found that the delegation satisfied the Supreme Court’s “intelligible principles” test. As to Nichols’ argument that the court should apply the more stringent “meaningful constraint” test, since the delegation contemplated criminal sanctions, the Tenth Circuit disagreed. The meaningful constraint test has only been referenced in a handful of cases, and no specific factors or substantive analytical framework has been developed, making application nearly impossible, whereas the intelligible principles test is well established.

The Tenth Circuit affirmed Nichols’ conviction.

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