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United States v. Shenandoah

February 9, 2010

UNITED STATES OF AMERICA
v.
PAUL SHENANDOAH, APPELLANT



On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-07-cr-00500-001) District Judge: The Honorable Christopher C. Conner.

The opinion of the court was delivered by: Nygaard, Circuit Judge.

PRECEDENTIAL

Submitted Under Third Circuit LAR 34.1(a) October 2, 2009

BEFORE: McKEE, CHAGARES, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

Paul Shenandoah was indicted in December of 2007 for failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(1) and (2) and 42 U.S.C. § 14072(i)(1). He was also charged with two counts of knowingly and willfully providing false information to law enforcement officials regarding his federal sex offender registration offenses, in violation of 18 U.S.C. §§ 1001 and 1512(b)(3).

He pleaded not guilty and asked the District Court to dismiss the indictment, arguing that SORNA violated the NonDelegation Doctrine, the Administrative Procedure Act, the Ex Post Facto Clause, the Due Process Clause, the Commerce Clause, the Tenth Amendment and his right to travel. The District Court denied the motion. United States v. Shenandoah, 572 F.Supp.2d 566 (M.D. Pa. 2008). Shenandoah then pleaded guilty to failing to register as a sex offender under SORNA, but reserved his right to appeal the order refusing to dismiss the indictment. See FED.R.CRIM.P. 11(a)(2); United States v. Zudick, 523 F.2d 848, 852 (3d Cir. 1975).

I.

The factual and procedural background of this appeal is straightforward and undisputed. An abbreviated recitation will suffice. Shenandoah, a New York resident, was convicted of third degree rape in February of 1996.*fn1 He executed a New York state sexual offender registration form when he was paroled in February of 2002. This form requires, among other things, that he apprise New York of any changes in his home address and place of employment. Some time in August of 2007, Shenandoah's employment as an iron worker required that he travel to, and relocate in, York County, Pennsylvania. He failed, however, either to register as a sex offender in Pennsylvania, or to modify his New York registration to reflect his change of residence and employment, leading to his indictment.

II.

The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587, was enacted to close the loopholes in previous sex offender registration legislation and to standardize registration across the states.*fn2 See United States v. Ensminger, 567 F.3d 587, 588 (9th Cir. 2009). The Adam Walsh Act is divided into seven titles, the first of which contains SORNA.

SORNA creates a national sex offender registry with the goal of eliminating inconsistencies among state laws. Id. SORNA applies to a broadly-defined class of "sex offenders," which includes persons convicted of child pornography offenses as well as almost all offenses involving illegal sexual conduct. See 42 U.S.C. § 16911. SORNA sets forth requirements for offenders who must initially register, and for those offenders who are already registered, but must update their registration:

(a) In general

A sex offender shall register, 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. For initial registration purposes only, a sex offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register-

(1) before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment.

(c) Keeping the registration current

A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.

(d) Initial registration of sex offenders unable to comply with subsection (b) of this section

The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories ...


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