Myah Pickens

PRELIMINARY STATEMENT

Defendant-Appellant, Herman Avery Gundy (Gundy), is appealing his conviction and

sentencing for one count of failing to register as a sex offender after traveling in interstate

commerce, in violation of the Sex Offender Registration and Notification Act (SORNA), 18

U.S.C § 2250(a). Gundy violated Maryland Criminal Law § 3-306, Sexual Offense in the Second

Degree while on supervised release for a prior federal offense. While serving his federal prison

sentence for the Maryland Criminal Law violation, Gundy was transferred from Maryland to

Pennsylvania. Towards the end of his federal sentence, he was moved from prison in

Pennsylvania to a halfway house in New York without having registered as a sex-offender in

either state. He was arrested and charged under 18 U.S.C. § 2250 for failing to have registered as

a sex-offender. Section 2250(a) imposes liability on anyone who is (1) required to register under

SORNA; (2) travels in interstate or foreign commerce; and (3) knowingly fails to register or

update a required registration. Gundy appeals and requests an exception to the second

requirement for a defendant who crossed state lines while in federal custody. Otherwise, he

claims the usual requirement of criminal law that criminal acts be voluntarily committed would

be violated.

QUESTIONS PRESENTED

1. Does the delegation of authority to the Attorney General from the Sex Offender

Registration and Notification Act (SORNA) to issue regulations under 34 U.S.C

20913(d) violate the nondelegation doctrine?

CONSTITUTIONAL PROVISIONS

The relevant portions of Article I of the Constitution of The United States are reproduced below.

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U.S. Const. Art. I. § I. “All legislative Powers herein granted shall be vested in a Congress of

The United States…”

STATEMENT OF THE CASE

The disparity from state to state in regard to sex-offender registration laws caused

Congress to repeatedly enact legislation to encourage and assist states in tracking and recording

sex offenders’ locations. In 1994, The Jacob Wetterling Crimes Against Children and Sexually

Violent Offender Registration Act (the Wetterling Act) was passed. This act encouraged states to

adopt a federally mandated set of sex-offender registration laws that would meet the Congress-

set minimum standards by making adopting said set of standards mandatory for receiving certain

federal funds. Two years later, Congress added a mandatory community-notification provision to

the Wetterling Act and the minimum standards required for receiving funding (Megan’s Law).

Congress directed the FBI to create a national sex-offender database, set a lifetime registration

requirement for certain offenders, and made the failure of certain offenders to register a felony.

Even with these efforts proving to be somewhat effective, there were still too many loopholes in

which sex-offenders could be lost in. The Sex Offender Notification and Registration Act

(SORNA) was enacted in 2006 in order to make “more uniform and effective” the existing

“patchwork” of federal and state sex-offender registration systems. SORNAs purpose is to

“protect the public from sex offenders and offenders against children” by “establish[ing] a

comprehensive national system for the registration of those offenders.” 34 U.S.C.20901

SORNA imposes direct requirements on federal and state offenders alike to register in the

appropriate jurisdiction, and to keep said registration updated. Section 20913 reads every “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.” 34 U.S.C.

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20913(a). Congress was seeking to create a uniform system nationwide for the registration of sex

offenders therefore it presented a broad definition of the term sex offender, the definition being

“any individual who was convicted of” any one of various enumerated “sex offenses,” various

sex crimes concerning minors included.

In 1994, Herman Gundy pleaded guilty and was convicted in the United States District

Court for the Eastern District of Pennsylvania on one count of conspiracy to distribute cocaine—

a violation of 21 U.S.C 846. He was sentenced to five years imprisonment, succeeded by five

years of supervised release in 1996. Later, jurisdiction was transferred to the District of

Maryland.

In 2004, during his supervised release period, Gundy provided an 11-year-old girl with

cocaine, then raped her. In Maryland state court, he pleaded no contention, was convicted of

sexual offence in the second degree, and was sentenced to 20 years imprisonment (10 years

suspended) followed by five years’ probation and sex offender registration. This conviction was

a direct violation of his prior charges supervised release agreement which resulted in the release

being revoked, and an extra 24 months of imprisonment was to be served consecutively with the

Maryland court sentence. In 2010, he ultimately was transferred to a federal prison in

Pennsylvania. In March 2012, Gundy sought and obtained permission to serve the remainder of

his sentence in a New York Halfway House. After his release from prison, in 2012 Gundy

traveled from Pennsylvania to New York yet had failed to register as a sex offender. Gundy was

found to be in violation of 18 U.S.C. 2250(a) and was convicted on one count of failing to

register as a sex offender after traveling in interstate commerce.

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The district court dismissed the indictment on the grounds that the petitioner was not

required to register at the time of his interstate travels, but this ruling was reversed and

remanded.

The petitioner proceeded to a bench train on stipulated facts, and the district court found

the petitioner guilty of violating section 2250. Gundy’s contention that congress impermissibly

delegated legislative power when it authorized the Attorney General to specify the application of

SORNA’s registration requirements to pre-SORNA offenders.

The court of appeals affirmed this, rejecting the petitioners challenge based off of its

earlier decision in United States v. Guzman, a case in which the court of the appeals held that the

nondelegation principle is not violated under the courts precedent, assuming that the Attorney

General has been authorized to determine the applicability of SORNA to pre-SORNA offenders.

SUMMARY OF ARGUMENT

The Court should reject the petitioners challenge on the grounds that the delegation of authority

SORNA gives to the Attorney General does not violate the nondelegation doctrine. It was ruled

in United States v. Guzman that “a delegation 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.” The court has reasoned that the Attorney General’s authority under

SORNA is highly circumscribed, and the ruling in Guzman states that the Attorney General is

authorized to determine SORNA’s registration requirements and its applicability to offenders

based on the specific provisions outlined in SORNA. The court should affirm The Second

Circuit’s finding that the petitioners’ arguments are presented without merit.

ARGUMENT

POINT I.

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SORNA DOES NOT EMPOWER THE ATTORNEY GENERAL TO CREATE

FEDERAL CRIMES.

The nondelegation doctrine is the principle that Congress cannot delegate its legislative powers

to other government agencies. Petitioner argues nondelegation scrutiny should be heightened

when applied to SORNA because it grants the Attorney General the authority to define crimes.

This argument is unsound. SORNA does not grant the Attorney General the authority to create

his own laws or define crimes as that would be unconstitutional. Rather, Congress itself made

failure to register as a sex offender a federal crime and registering as a sex-offender under

SORNA a civil requirement. The Attorney General does not define any crimes, only implements

the civil requirement regime. Congress intended and expected the Attorney General to apply

SORNA to pre-SORNA offenders if feasible. SORNA is one of few statues that criminalizes

failure to report or register but gives the executive discretion over who is subject to reporting

obligation.

A. Gundy had an adequate amount of time to register and was traveling voluntarily,

meaning that the travel element that contains an implicit voluntariness requirement

is easily met with the facts of this case.

While technically, Gundy was traveling from Maryland to Pennsylvania to New York while

in federal custody, the travel was initially sought out by the petitioner, he willingly made the

trip and traveled to New York on his own making it voluntary. The petitioner traveled by bus

unescorted, then lived in the New York halfway house for about a month, all the while not

having registered as a sex offender. There was an adequate amount of time to do so, and his

argument would be sound had not already been aware of his registration requirement being

part of his sentence. The petitioner’s argument that the interstate travel in § 2250 (a) is

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limited to only voluntary travel is nuanced itself, but also inapplicable to him seeing as the

District Court found that the travel done by him was voluntary. The Attorney General has the

jurisdiction to rule in this case how he sees fit in accordance with the facts of the petitioners’

case, and the rules laid out in SORNA.

POINT II.

CONGRESS MAY DELEGATE DISCRETION TO THE EXECUTIVE IF IT SUPPLIES

AN INTELLIGBLE PRINCIPLE

Congress is provided “the necessary resources if flexibility and practicality to perform its

function” Yakus v. United States 321 U.S 414, 425 (1944). The court’s precedents show that

Congress’ delegation of authority has seldom been questioned and since “the beginning of the

Government,” Congress has enacted broad delegations that had not been challenged on

nondelegation grounds. The court has only twice found that delegations in fact had exceeded

Congressional authority. The entire statute of SORNA is to be looked at as an intelligible

principle for the registration of sex offenders and their residencies is to ensure that families are

able to ensure their safety.

A. Congress identified the general policy it intended the Attorney General to pursue.

SORNA’s purpose is to “protect the public from sex offenders and offenders against children” by

“establish[ing] a comprehensive national system for the registration of those offenders.” 34

U.S.C. 290901. Congress tried unsuccessfully numerous times to present a law that would lessen

the number of offenders who were able to slip through the cracks and increase the number of

offenders that would be readily available on a database. SORNA was their most effective effort

at Pre-act offenders could not be exempt from having to comply with the new rules simply

because the law did not exist before. The Reynolds case covered the question of whether or not

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SORNA requirements applied to pre-act offenders prior to the Attorney General specification. In

2007, the Attorney General implemented the policy saying that all pre-act offenders were

required to register. The delegation of the authority to address transition-period implementation

issues did not erase SORNA’s overriding objective. When Congress grants the executive

sweeping authority (The EPA, the SEC, etc.), Congress still has to provide the executive with

guidance.

CONCLUSION

Based upon the aforementioned, the Decision and Order from the court below should be

affirmed. SORNA’s delegation of authority to the Attorney General to specify the applicability

of SORNA’s statutory registration requirements to pre-SORNA sex offenders corresponds with

this court’s precedent.