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United States of America v. Orvell Jones

November 29, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
ORVELL JONES, DEFENDANT.



The opinion of the court was delivered by: Michael P. McCUSKEY U.S. District Judge

E-FILED

Thursday, 29 November, 2012 04:05:49 PM Clerk, U.S. District Court, ILCD

OPINION

This case is before the court for ruling on the Motion to Dismiss Indictment (#11) filed by Defendant, Orvell Jones. Following this court's careful consideration of the arguments presented by the parties, Defendant's Motion to Dismiss Indictment (#11) is DENIED.

BACKGROUND

On May 3, 1994, Defendant was convicted of the felony offense of First Degree Criminal Sexual Conduct Victim Under 13 Years of Age in Hennepin County in the State of Minnesota. In July 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA), which required convicted sex offenders to register and keep their registrations current in each jurisdiction in which the offender resides. See 42 U.S.C. § 16913(a). SORNA made it a federal crime for any person (1) who "is required to register under [SORNA]," and (2) who "travels in interstate or foreign commerce," to (3) "knowingly fail[] to register or update a registration." 18 U.S.C. § 2250(a). SORNA further provides that "[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction." 42 U.S.C. § 16913(d). On February 28, 2007, the Attorney General issued an interim regulation making SORNA applicable "to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act." 72 Fed.Reg. 8897 (codified at 28 C.F.R. § 72.3).

Sometime between December 2011 and June 18, 2012, Defendant traveled in interstate commerce and moved from the State of Minnesota to the State of Illinois. On July 11, 2012, Defendant was charged by indictment (#1) with violating SORNA. The indictment alleged:

On or about June 18, 2012, in Kankakee County, in the Central District of Illinois, and elsewhere, ORVELL JONES defendant herein, an individual required to register as a sex offender under the Sex Offender Registration and Notification Act ("SORNA"), after receiving a felony conviction on or about May 3, 1994, in the State of Minnesota for 1st Degree Criminal Sexual Conduct Victim Under 13 Years of Age, knowingly failed to register and to update a registration, as required by SORNA, after leaving the State of Minnesota and thereafter traveled in interstate commerce to the State of Illinois.

All in violation of Title 18, United States Code, Section 2250(a).

On July 18, 2012, counsel was appointed to represent Defendant. On September 12, 2012, Defendant filed a Motion to Dismiss Indictment (#11). On October 24, 2012, the Government filed its Response to Defendant's Motion to Dismiss Indictment (#12).

ANALYSIS

In his Motion, Defendant argues that the Indictment must be dismissed because the February 28, 2007, Attorney General's interim regulation was an unconstitutional use of legislative power by the executive branch of government and, thus, SORNA cannot be lawfully enforced against pre-SORNA offenders. Defendant contends that Congress's delegation of authority to the Attorney General to determine the retroactive application of SORNA's registration requirements to pre-SORNA offenders violates the non-delegation doctrine of the United States Constitution. This court does not agree.

The United States Supreme Court has held that "Congress generally cannot delegate its legislative power to another Branch." Mistretta v. United States, 488 U.S.361, 372 (1989), citing Field v. Clark, 143 U.S. 649, 692 (1892). In instances where delegation is permitted, Congress must "lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform." J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928). The Supreme Court has determined that, in considering a non-delegation challenge, a statute is "constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority." Am. Power & Light Co. v. Sec. & Exch. Comm'n, 329 U.S. 90, 105 (1946). Since two 1935 cases invalidating statutes as unconstitutional delegations of power, "the Supreme Court has not struck down a single statute as an impermissible delegation of legislative power." United States v. Ambert, 561 F.3d 1202, 1213 (11th Cir. 2009).

The circuit courts of appeal which have considered the issue have determined that, pursuant to SORNA ยง 16913(d), Congress constitutionally authorized the Attorney General to promulgate a regulation, and the regulation issued by the Attorney General is a constitutional exercise of that authority. See 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, 91-93 (2d Cir. 2010); United States v. Whaley, 577 F.3d 254, 263-64 (5th Cir. 2009); Ambert, 561 F.3d at 1213-14; United States v. Dixon, 551 F.3d 578, 584 (7th Cir. 2008), rev'd on other grounds sub nom. Carr v. United States, 130 U.S. 2229 (2010); see also United States v. Goodwin, 2012 WL 984268, at *2 (C.D. Ill. 2012). In Dixon, the Seventh Circuit stated that "[i]t is commonplace and constitutional for Congress to delegate to executive ...


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