United States District Court, D. Kansas
MEMORANDUM AND ORDER
D. Crabtree United States District Judge.
matter is before the court on defendant Allen Dodson's
Motion to Dismiss Indictment (Doc. 20). Mr. Dodson asserts
that the statute under which he was convicted, the Sex
Offender Registration and Notification Act
(“SORNA”), is unconstitutional. The government
has filed a Response (Doc. 23). For reasons explained below,
the court denies Mr. Dodson's Motion.
jury indicted Mr. Dodson on July 25, 2018, under 18 U.S.C.
§ 2250. The grand jury found that, “[f]rom on or
about August 22, 2017[, ] up to and including on or about
July 25, 2018, ” Mr. Dodson was required to register
under SORNA because of an earlier conviction in Morgan
County, Missouri. Doc. 1 at 1. The grand jury also found that
Mr. Dodson had failed to register and update his
Dodson does not challenge the substance of the Indictment
against him. Rather, he challenges the constitutionality of a
portion of the statute under which the grand jury indicted
him. Mr. Dodson was convicted of the crime underlying his
Indictment before Congress enacted SORNA. Congress delegated
authority under SORNA to the United States Attorney General
to decide how to apply the statute to individuals like Mr.
Dodson-defendants whose convictions predated SORNA's
enactment. Mr. Dodson argues that Congress's delegation
of this authority itself is unconstitutional under the
enacted the Adam Walsh Child Protection and Safety Act of
2006 on July 27, 2006. 34 U.S.C. § 20901 et
seq. This statute includes SORNA, which requires states
to “maintain . . . jurisdiction-wide sex offender
registr[ies], ” among other mandates. 34 U.S.C. §
20912. Specifically, SORNA outlines rules for offenders'
initial registrations and their duty to update these
registrations when they change “name, residence,
employment, or student status.” 34 U.S.C. §
20913(c). Mr. Dodson challenges 34 U.S.C. § 20913(d):
The 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, 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).
34 U.S.C. § 20913(d).
Dodson asserts that Congress, when delegating this discretion
to the Attorney General, failed to “‘articulate
any policy or standard that would serve to confine the
discretion'” of the Attorney General. Doc. 20 at 5
(quoting Mistretta v. United States, 488 U.S. 361,
374 n.7 (1989)). This failure, Mr. Dodson contends, renders
Congress's delegation “‘constitutionally
invalid.'” Id. (quoting
Mistretta, 488 U.S. at 374 n.7). Mr. Dodson asserts
that SORNA allows the Attorney General, “without any
explicit guidance[, ] . . . to decide whether to apply SORNA
government argues that the Tenth Circuit and every other
Circuit except the Federal Circuit all have rejected
constitutionality challenges to SORNA under the nondelegation
doctrine. Doc. 23 at 6. The government asserts that the Tenth
Circuit in United States v. Nichols explicitly
identified Congress's statutory policy statement that
“‘convey[ed] the intelligible principles upon
which the Attorney General's delegated authority must be
based.'” Id. at 6-7 (citing United
States v. Nichols, 775 F.3d 1225, 1231 (10th Cir. 2014),
rev'd on other grounds, Nichols v. United
States, 136 S.Ct. 1113 (2016)).
Tenth Circuit's rejection of a constitutionality
challenge to SORNA under the nondelegation doctrine binds
this court. The Circuit concluded-as the government
argues- that SORNA includes a clear congressional policy
statement about the statute's intent: “‘to
protect the public from sex offenders and offenders against
children' by establishing ‘a comprehensive national
system for the registration of those offenders.'”
Nichols, 775 F.3d at 1231 (quoting 42 U.S.C. §
16913(d) (transferred to 34 U.S.C. § 20913(d))).
Congress also plainly articulated the “boundaries of
the authority it delegated to the Attorney General.”
Id. This authority comprises “a single, narrow
decision: to determine SORNA's application to
preenactment sex offenders.” Id. “The
Attorney General cannot do much more than simply determine
whether or not SORNA applies to those individuals.”
Id. at 1231-32 (internal quotations omitted).
Congress explicitly provided that the Attorney General would
exercise this authority. Id. at 1232. And Congress
specified the location, timing, method, and required
information for sex offender registration under SORNA, as
well as penalties for failing to register. Id. at
1232; see also 18 U.S.C. § 2250 (imposing fines
and imprisonment for failing to register as SORNA requires).
These additional statutory limits circumscribe the Attorney
General's authority. Id. The Tenth Circuit thus
held that SORNA withstands constitutional challenges based on
the nondelegation doctrine. Id.
Mr. Dodson's constitutional challenge mirrors the
challenge defendant Lester Nichols brought against SORNA in
Nichols. But, as the Circuit has concluded, SORNA
does not violate the nondelegation doctrine. Instead,
Congress outlined a clear policy, several boundaries, and a
specific agency to enforce SORNA's retroactive
application to pre-enactment sex offenders. The court thus
denies Mr. Dodson's Motion to Dismiss Indictment based
solely on this constitutional challenge.
IS THEREFORE ORDERED THAT defendant Allen
Dodson's Motion to Dismiss ...