US v. Steven Stewart, No. 11-4420 (4th Cir. 2012)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4420 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STEVEN RAY STEWART, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Lynchburg. Norman K. Moon, Senior District Judge. (6:10-cr-00015-nkm-1) No. 11-4471 UNITED STATES OF AMERICA, Plaintiff Appellee, v. STANLEY H. CARLSON, a/k/a Stanley Harold Carlson, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Glen E. Conrad, Chief District Judge. (5:10-cr-00027-gec-bwc-1) Submitted: December 7, 2011 Decided: January 18, 2012 Before NIEMEYER, KEENAN, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Allegra M.C. Black, Andrea Lantz Harris, Assistant Federal Public Defenders, Christine Madeleine Lee, Research and Writing Attorney, Roanoke, Virginia, for Appellants. Timothy J. Heaphy, United States Attorney, Anthony P. Giorno, First Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: In these consolidated appeals, Steven Ray Stewart appeals his conviction and thirty-month sentence following his guilty plea to one count of traveling in interstate commerce and failing to register or update a registration, as required by the Sex Offender Registration and Notification Act ( SORNA or the Act ), in violation of 18 U.S.C. § 2250(a) (2006), and Stanley H. Carlson sentence appeals following his his conviction guilty plea and to twenty-seven-month the same offense. Appellants argue that the relevant provisions of the SORNA that required them to register as sex offenders, see § 16913 (West Supp. 2011), are unconstitutional. raises a separate venue challenge. Appellants argue that 42 U.S.C.A. Stewart also We affirm. the district court erred in denying their motions to dismiss the indictments against them. They contend that, in enacting the SORNA, Congress violated the non-delegation doctrine by impermissibly delegating legislative functions to the Attorney General; namely, the discretion to determine whether the SORNA s registration requirements would apply to sex offenders convicted prior to the Act s enactment. We review de novo the district court s denial of a motion to dismiss an indictment. 310 (4th Cir. 2002). United States v. Brandon, 298 F.3d 307, Additionally, 3 properly preserved constitutional claims are reviewed de novo. United States v. Hall, 551 F.3d 257, 266 (4th Cir. 2009). The non-delegation doctrine is based on the principle of preserving the separation of powers between the coordinate branches of government. United 1202, 1212 (11th Cir. 2009). to another delegation branch doctrine of as v. Ambert, 561 F.3d Congress delegation of authority government long States as does not Congress offend has the delineated nonan intelligible principle guiding the exercise of that authority. J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). Even a general legislative directive is a constitutionally sufficient intelligible principle if Congress clearly delineates the general policy, the public agency [that] is to apply authority. it, and the boundaries of th[e] delegated Mistretta v. United States, 488 U.S. 361, 372-73 (1989) (internal quotation marks omitted). Appellants contend there is no intelligible principle guiding the Attorney General in his discretion. We agree with the other courts of appeal that have considered this issue in concluding that this claim is without merit. See, e.g., United States v. Guzman, 591 F.3d 83, 93 (2d Cir.) (concluding that the Attorney General s delegated authority is highly circumscribed because the SORNA includes specific provisions delineating what crimes require registration; where, when, and how an offender 4 must register; what information is required of registrants; and the elements and penalties for the federal crime of failure to register (internal citations omitted)), cert. denied, 130 S. Ct. 3487 (2010); United States v. Whaley, 577 F.3d 254, 264 (5th Cir. 2009) (holding that the SORNA s statement of purpose in 42 U.S.C.A. § 16901 is a guiding intelligible principle); Ambert, 561 F.3d at 1213-14 (describing the SORNA s broad policy goals as intelligible principles). Further, we reject Appellants argument that our decision in United States v. Hatcher, 560 F.3d 222 (4th Cir. 2009), compels a contrary conclusion. Contrary to Appellants argument, nothing in the Hatcher decision calls into question the constitutionality of Congress delegation of authority to the Attorney General under the SORNA. that Appellants non-delegation doctrine We therefore conclude argument is without merit. Stewart also argues that the district court erred in denying his motion to dismiss the indictment because the Western District of Virginia was the improper venue for his prosecution. We review the district court s determination on venue de novo. United States v. Wilson, 262 F.3d 305, 320 (4th Cir. 2001). Venue lies in the state and in the district where the offense at issue was committed. cl. 3; Fed. R. Crim. P. 18. U.S. Const. art. III, § 2, A determination of where an offense 5 is committed is to be made with reference to the criminal act proscribed by the statute. Johnston v. United States, 351 U.S. 215, statute 220 (1956). If the does not provide explicit guidance, the location of the offense for venue purposes must be determined from the nature of the crime alleged location of the act or acts constituting it. and the United States v. Anderson, 328 U.S. 699, 703 (1946). Stewart s violation of § 2250(a) necessarily involved more than one district because he traveled interstate Virginia to Kentucky, where he failed to register. situation, venue is governed by 18 U.S.C. from In such a § 3237(a) (2006), which states that any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in completed. move from Kentucky, where when such offense was begun, continued, or Stewart s offense began in Virginia because his that register. began which state his gave rise offense to was moved from the duty completed 42 U.S.C.A. § 16913(c). he his to when register he failed in to Because Stewart s offense Western District of Virginia, thereafter failing to register in Kentucky, venue was proper in the Western District of Virginia. See, e.g., United States v. Howell, 552 F.3d 709, 717 18 (8th Cir. 2009) (holding that venue for a failure-to-register prosecution was proper in the Northern 6 District of Iowa, from which the defendant moved to Texas where he failed to register). Accordingly, Stewart s venue argument is without merit. We court. legal before therefore affirm the judgments of the district We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 7

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