News You Can Use: Tenth Circuit reaffirms that restitution must be based on the offense of conviction, not relevant conduct.

The Mandatory Victim Restitution Act authorizes restitution only for the loss caused by the specific conduct that is the basis of the offense of conviction.  United States v. Mendenhall, 945 F.3d 1264 (10th Cir. 2019).

Restitution can be an afterthought at sentencing.  The parties are, understandably, far more concerned with incarceration.  However, appropriately limiting restitution is important because a large restitution order can follow a client for 20 years and make it difficult for them to get back on their feet, and stay there.  See 18 U.S.C. § 3613.

As the Tenth Circuit has recognized, “The most important thing at sentencing is determining whether the defendant will be incarcerated and, if so, for how long. Other matters, such as restitution and conditions of supervised release, are, appropriately, of secondary concern. But they are not inconsequential and deserve focused attention.” United States v. Martinez-Torres, 795 F.3d 1233, 1234 (10th Cir. 2015)

Recently, in United States v. Mendenhall, the Tenth Circuit reiterated a fundamental aspect of restitution under the Mandatory Victim Restitution Act (MVRA): a district court can order restitution only to a victim of an offense of conviction, and “only for loss caused by the specific conduct that is the basis of the offense of conviction.”  Mendenhall, 945 F.3d at 1267.

In Mendenhall, an indictment charged the defendant with unlawful possession of three specific stolen firearms, each identified by serial number.  The firearms were stolen from a pawnshop during a burglary in which a total of 62 firearms were stolen, and substantial evidence implicated Mendenhall in the burglary.  Only a dozen or so firearms, including the three identified in the indictment, were recovered and returned to the pawnshop.

The district court ordered Mendenhall to pay the pawnshop restitution in the amount of $33,763.23 for “the loss of firearms not recovered, wages for employees to conduct inventory, loss of revenue for closing of business . . . and cleanup/repairs.”  Id. at 1266.  Mendenhall did not object to the restitution order.  On plain error, the Tenth Circuit reversed.

The Tenth Circuit explained that “[d]istrict courts lack inherent powers to order restitution.”  Id.  They may only do so as authorized by statute, and the MVRA authorizes restitution only to “a person directly and proximately harmed as a result of the commission of an offense.”  Id. (quoting 18 U.S.C. § 3663A(a)(2)).  Moreover, the Supreme Court has interpreted this language as limiting restitution “only for losses caused by the conduct underlying the offense of conviction.”  Id. at 1267 (quoting Hughey v. United States, 495 U.S. 411, 416 (1990)).  Based on these limitations, Mendenhall did not owe any restitution at all.

The elements of Mr. Mendenhall’s offense of conviction were: (1) knowing possession of the firearms; (2) interstate commerce; and (3) knowing or having reasonable cause to believe the firearms were stolen.  “None of these elements caused the losses cited as the basis for the restitution order” because the “three firearms listed in the indictment were recovered and returned.”  Id. at 1268.  That Mendehall did not object to the PSR’s assertion that he was involved in the burglary was irrelevant: “Restitution must be based on the offense of conviction, not relevant conduct.”  Id. (quoting United States v. Frith, 461 F.3d 914, 916 (7th Cir. 2006)).

Finally, the Tenth Circuit panel was reluctant to find that the fourth prong of the plain error test was met—that is, whether the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings”—calling it “not an easy question in a case like this one where everybody knows that Mendenhall stole the firearms and pocketed the cash from the theft.”  Id. at 1270.  However, it acknowledged that a restitution order that exceeds the amount authorized by statute “amounts to an illegal sentence,” just as a term of imprisonment above the stat max does.  Accordingly, the Tenth Circuit was bound by precedent to conclude that all four prongs of plain error were met, and it reversed the order of restitution.

Takeaways

  • Restitution can be very burdensome for our clients.
  • Because restitution is a secondary concern for everyone—the defense, the government, probation, and the court—the orders often contain errors.
  • Restitution can be ordered only for loss caused by the specific conduct that is the basis of the offense of conviction. In other words, restitution must be based on the offense of conviction, not relevant conduct.
    • Caveat: in a plea agreement, a defendant can agree to restitution beyond what is otherwise authorized by statute.
  • An excessive restitution order is an illegal sentence

News You Can Use: Tenth Circuit limits the unit of prosecution for child pornography possession offenses

Holding: Multiple devices ≠ multiple counts: child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.

This fall, the Tenth Circuit limited the number of charges the government can bring for possessing child pornography, at least where that material is discovered at the same time and same place.

In United States v. Elliott, 937 F.3d 1310 (10th Cir. 2019), the defendant was charged with four possession counts, in violation of 18 U.S.C. § 2252A(a)(5)(B), which penalizes “possess[ing]” . . . any . . . material that contains an image of child pornography.”  The charges were based on child pornography discovered on a computer, external hard drive, phone, and cloud storage account linked to the phone.  All the items were located in the defendant’s bedroom during execution of a search warrant.

The government’s theory was that it could charge on a “per device” basis, i.e., that every device on which child pornography was located constituted a separate offense.  The defendant argued that this charging theory was multiplicitous: that it imposed multiple punishments for the same offense of simply possessing child pornography.

To answer the question, the court of appeals had to determine what the unit of prosecution was for § 2252A.  This is an inquiry of statutory interpretation—the unit of prosecution is the minimum amount of activity a defendant must undertake to commit each new and independent violation of a criminal statute. 

Ultimately, the Tenth Circuit held that § 2252A(a)(5)(B) does not permit multiple possession charges based solely on the number of electronic devices a defendant simultaneously possessed. That means that child pornography discovered at the same time, and in the same place, is a single offense, regardless of how many devices that material is stored on.  And because multiplicity is never harmless error, the Elliott court vacated all but one the defendant’s possession convictions.

Open question: whether the government might be able to sustain multiple possession charges with proof that a defendant received the child pornography at different times, or stored it in entirely separate locations.

Key takeaways.

  • Be on the lookout for multiplicity.  Whenever an indictment charges multiple violations of the same statute, be sure to ask what the unit of prosecution is for that statute.  If it is unclear, query whether lenity may apply.  Elliott and the Tenth Circuit’s en banc decision in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015) are good places to start your research.
  • Don’t let other circuits’ decisions prevent you from making novel arguments.  Here, the Fifth Circuit previously had accepted the government’s “per device” charging theory, and at least four other circuits had suggested in dicta that such charging might be permissible.  The Tenth Circuit found none of this authority persuasive in ruling the other way.
  • The unit of prosecution for child pornography possession under § 2252 is an open question, but it should be the same as § 2252A.  There are two federal statutes that independently criminalize possessing child pornography:  18 U.S.C. § 2252A(a)(5)(B) and § 2252(a)(4)(B).  And while § 2252 is charged less frequently, it still shows up from time to time.  Elliott’s analysis applies only to § 2252A, but its discussion of § 2252 and the slight difference in wording between the two statutes should be helpful in arguing that the unit of prosecution under of § 2252 is the same as § 2252A.

News You Can Use: Tenth Circuit issues helpful decision limiting restitution in conspiracy cases

The Tenth Circuit recently issued an important decision in United States v Anthony concerning restitution in conspiracy cases. The facts are unlikely to reoccur very often, but the opinion contains some broadly applicable and helpful points of law.

Background

Mr. Anthony was convicted after trial of conspiracy to entice a child.  The evidence showed that he called an “escort service” which sent two minors to his place of business. He touched them both and had sex with one of them.  The girls had been ensnared by a pimp, and Mr. Anthony was one of over a hundred customers they had seen.

In ordering restitution, the district court held Mr. Anthony accountable for all the harm the girls suffered during the time they spent working for the pimp.  One of the girls had earlier been involved with another pimp in an enterprise wholly unrelated to the later one.  The court made no attempt to disaggregate the harm caused during the girl’s involvement with the first pimp from the harm caused during her involvement with the second.

The Decision

18 U.S.C. § 2259 generally requires proof of “but for” causation

Mr. Anthony’s first claim on appeal was that the district court should have disaggregated the harm caused during the first enterprise.  The circuit agreed.  And along the way, it ruled that 18 USC 2259, the statute governing restitution for most federal sex crimes, requires a showing of “but for” causation.  In doing so, the court rejected the government’s claim that the statute allowed liability based on a theory of multiple independent causes, which would have greatly expanded restitution liability.  Using but for causation–a familiar concept in restitution analysis generally–resolution of the claim was easy.  Mr. Anthony was obviously not a but for cause of the harms that were caused before his crime was even committed.

Restitution is limited to the harm established by the trial evidence

Mr. Anthony’s second claim was that the court shouldn’t have held him accountable for all the harm that happened during the time the girls were involved with the second pimp.  This argument rested on conspiracy law.  Conspiracy, of course, is an agreement, and he argued that his only agreement, if any, was to have sex with the girls on that one night.  The circuit also agreed with this argument (although Mr. Anthony ultimately lost because the claim wasn’t preserved).  The circuit had long held that a conspiracy conviction makes a defendant “liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators.”  And historically, the court had looked to the indictment to define the scope of the conspiracy and hence a defendant’s restitution liability.   But here the court held, at least in the case of a trial, that restitution has to be limited to what the evidence actually proved, not what was alleged in the indictment. 

Conspiracy liability is limited to the defendant’s own agreement

Here, the evidence only showed, at most, that Mr. Anthony joined a conspiracy to obtain the girls for sex on the night he met with them.  The reason?  Mr. Anthony’s sole purpose was to “have sex.”  Although he likely knew that his decision to pay for sex furthered the overall enterprise, that knowledge was not enough to make him a conspirator in that enterprise.  As the circuit put it, “mere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.”  Id. 

Key Takeaways

  • Be sure to take a careful look at restitution in sex offense cases.  Except child pornography crimes, Anthony teaches that restitution in the sex offense context is limited to harm that would not have occurred but for the defendant’s offense.
  • The evidence, not the indictment, controls, at least when there’s a trial. Restitution is limited to harm established by the evidence at trial, even if the indictment’s allegations are broader.
  • Traditional concepts of conspiracy liability apply in the restitution context. Conspiracy liability (including for restitution) is limited to the defendant’s own agreement, even if she knows of the wider conspiracy.

News You Can Use: Tenth Circuit holds mandating medication on supervised release requires particularized findings and compelling circumstances

Earlier this fall, in United States v Malone the Tenth Circuit confronted a special condition of supervised release that directed the defendant to participate in mental health treatment while on supervision.   Conditions of this sort are fairly routine, but this condition included a particularly problematic feature – it required Mr. Malone to “take prescribed medication as directed.”  In imposing the condition, the trial court gave no justification for it.

There was no objection to the condition in the district court, but the Tenth Circuit reversed for plain error.  The court explained that requiring a person to take psychotropic drugs – which this requirement, as part of a mental health condition, plainly did – intrudes on a significant liberty interest.  And when a court wants to impose a condition of supervised release that “invades a fundamental right or liberty interest,” it must make particularized findings that set out “compelling circumstances” that justify the condition.  The district court didn’t do so here, and because the record would not have supported the necessary findings in any event, the court directed the district court to strike the “offending language” from the judgment.

Key Takeaways:

  • Keep an eye out for conditions like this in PSRs that come your way.  As the circuit recognized, this condition was being “broadly imposed as a ‘stock’ special condition” in Kansas.  Similar conditions have also cropped up in other judicial districts.
    • To that end, take note of this language in Malone:

      “When “stock” special conditions are proposed and the defendant does not object, it is easy to overlook the constitutional implications at stake. But even when the defendant does not object, the district court must ensure that its conditions conform to the Constitution.”

  • Carefully review proposed conditions to see whether they infringe on fundamental rights or liberty interests.  Lots of conditions fit this description.  Examples include: occupational restrictions, restrictions on familial association, and possessing of legal, sexually explicit material.
  • Develop your record at sentencing.  Ask the district court to make the requisite findings and establish the compelling reasons to justify the condition.

News You Can Use: Tenth Circuit Holds Retaliation Against Witness Is Not a Crime of Violence for Purposes of 924(c)

This case arose out of the Johnson v. United States litigation that has been going on since 2015. After Johnson, Aaron Bowen filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his predicate conviction for witness retaliation was not a crime of violence for purposes of 18 U.S.C. § 924(c). The case was stayed pending the Supreme Court’s decision in United States v. Davis, ––– U.S. ––––, 139 S. Ct. 2319 (2019), where the Supreme Court recently held the residual clause of Section 924(c) is void for vagueness.

The Tenth Circuit’s decision in Mr. Bowen’s case had several important holdings:

First, that Davis is a new substantive rule that is retroactively applicable on collateral review.

Second, that Mr. Bowen’s convictions for witness retaliation do not qualify as crimes of violence under 18 U.S.C. § 924(c)(3)(A).

Third, that Mr. Bowen is actually innocent of 18 U.S.C. § 924(c)(1)—because his predicate conviction does not fall under the force clause of 924(c), and the residual clause was invalidated by Davis.

ANALYSIS OF FORCE AGAINST PROPERTY

The key takeaway is that force against property is analyzed differently from force against persons for purposes of the 924(c) force clause.  Recall that, unlike its ACCA counterpart, the elements clause of 18 U.S.C. § 924(c) encompasses crimes that have as an element the use of physical force against not just people, but also other people’s property. After cases like Stokeling v United States and United States v Ontiveros, almost any force that causes bodily injury is enough to qualify under the force clause. This case, however, required the circuit to decide for the first time how much force is necessary to satisfy the statute when the force is directed at property.

The predicate crime here was federal retaliation against a witness, 18 U.S.C. § 1513(b)(2). A defendant may be convicted of that offense if either (1) with intent to retaliate, he knowingly causes or threatens to cause bodily injury to a witness or (2) knowingly causes or threatens to cause damage to a witness’s property. The Tenth Circuit concluded that witness retaliation through bodily injury qualifies as a crime of violence under § 924(c)(3)’s elements clause, but witness retaliation through property damage does not.

Although the underlying facts of Mr. Bowen’s predicate conviction encompassed actual force against persons and property, under the well-worn categorical approach, we all know that the facts don’t matter. In other words, to determine whether Bowen’s witness retaliation conviction has “as an element the use, attempted use, or threatened use of [violent] force against the person or property of another,” 18 U.S.C. § 924(c)(3)(A), courts must look “only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction.” United States v Serafin, 562 F.3d 1105, 1107–08 (10th Cir. 2009).

A Sixth Circuit case, United States v Edwards, 321 F. App’x 481 (6th Cir. 2009), demonstrated that the federal witness retaliation could be satisfied by spray-painting a car. Citing to Moncrieffe v. Holder, the Circuit explained that the salient question was whether spray-painting a witness’s car qualifies as a crime of violence under § 924(c)(3)’s elements clause. 569 U.S. 184, 190–91 (2013) (“[W]e must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by [§ 924(c)(3)’s elements clause].”).

Ultimately, the Tenth Circuit agreed with Mr. Bowen that property “crimes of violence” under § 924(c)(3)(A) are those that include “violent force,” not merely those that “injure property.” Spray painting a car did not rise to the level of “violent force,” and so Mr. Bowen’s predicate conviction was not a crime of violence.

The decision was over a dissent by Judge McHugh, and also creates a split with the Second Circuit. See United States v Hill, 890 F.3d 51, 58 (2d Cir. 2018).

KEY TAKEAWAY

Force against property for purposes of 924(c)’s force clause requires violent force against property—mere property damage (such as spray-painting a car) does not satisfy the force clause. The Tenth Circuit didn’t elaborate on what sorts of offenses against property would qualify, but explained only that mere damage to property isn’t enough.

News You Can Use: Tenth Circuit holds special condition of supervised release banning internet use, unless preapproved by probation, is greater deprivation of liberty than necessary under 18 U.S.C.§ 3583(d)

Individuals convicted of child pornography offenses in the District of Colorado have typically been subject to a special condition of supervised release aimed at controlling their internet use; it states: “The defendant’s use of computers and Internet access devices must be limited to those the defendant requests to use, and which the probation officer authorizes.” This condition essentially prevents individuals on supervised release from using any computer or “Internet access device” by default, unless and until their probation officer gives them permission to do so—and there’s nothing to say that probation ever has to give them permission.

This week, in United States v. Blair, the Tenth Circuit, over a dissent by Judge Baldock, held this condition is a greater deprivation of liberty than reasonably necessary under 18 U.S.C. § 3583(d) because “it allows the probation office to completely ban the defendant’s use of the internet by failing to place any restraints on a probation officer’s ability to restrict a defendant’s Internet access.” 2019 WL 379368, at *1.  Notably, the majority reached its decision, notwithstanding arguably aggravating factors about Mr. Blair’s offense, which were highlighted by the dissent.

The Tenth Circuit held: “the special condition would prohibit [Mr. Blair’s] use of a computer for benign activities, such as writing a novel or checking the weather, without first obtaining permission from his probation officer.” Id. at *6. Moreover, the condition gives the probation office “unfettered discretion” to decide when to lift the ban—without anything to “suggest[] that the probation office [would] allow Blair any reasonable use of the internet.” Id. at *6-7.  The Tenth Circuit vacated the special condition and remanded to the district court with instructions to “amend the special condition of supervised release to bring it into compliance with the demands of [18 U.S.C.] sections 3553 and 3583.”

So how is the district court supposed to bring this special condition into compliance with the sentencing and supervised released statutes?  The Tenth Circuit has some ideas.

The probation officer is “limited to imposing only those restrictions that are reasonably calculated to prevent the defendant from using a computer or the Internet to access, store, produce, or send child pornography in any form; to provide necessary restrictions to facilitate a defendant’s correctional treatment so that he may be rehabilitated; and to protect the public from any further crimes of the defendant.” Id. at *8-9. The Court further indicated that a district court would have to find “extraordinary circumstances” existed in order to justify a “blanket or total ban” on internet usage, which nobody had argued applied in Mr. Blair’s case. Id. at *9 n.6.

Takeaways

  •  No categorical internet/computer bans. The district court cannot ban defendants—including those convicted of possessing child pornography—from using the internet or computers, absent extraordinary facts not present in the typical case. Nor can a district court order a condition that allows probation to impose such a ban. Rather, any restriction on internet or computer use has to be tailored to preventing further child pornography crimes or facilitating the defendant’s rehabilitation.
  • Challenge overbroad conditions of supervised release at sentencing.
    • The law is on our side to assert this challenge at sentencing.  As the Tenth Circuit explains in Blair: “Although district courts have broad discretion to prescribe conditions on supervised release…that discretion is limited by 18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a).”
    • The government’s argument that it’s better to wait until defendant is actually on supervision didn’t go anywhere with the court of appeals.  The Tenth Circuit rejects out of hand the government’s suggestion “that the proper time for [a defendant] to raise his desire to use computers and the Internet for harmless purposes is down the road when he meets with his probation officer and discovers how the probation office intends to enforce the condition.” Id. at *8. After all, the prohibition on overbroad conditions contained in 18 U.S.C. § 3583 “directly govern[s] the district court’s obligations in imposing the supervised release conditions” at sentencing. Id.
    •  Another reminder that preservation matters.  Trial counsel objected to the internet-use ban in the district court, clearing the path for a meaningful victory in the court of appeals.
  • Overly restrictive conditions matter because violating them could result in  more prison time. As the Tenth Circuit acknowledges in a footnote, people have gone to prison for violating overbroad conditions of supervised release in seemingly innocuous ways—such as by checking their email or logging into Facebook. see id. at *8 n.5. By paying attention to these issues at sentencing, you may be able to save your client some jail time down the road.
  •  Don’t be scared away by an appellate waiver – make sure it bars your issue before assuming otherwise.  Mr. Blair signed a plea agreement with an appeal waiver, but it was unenforceable here, allowing the appeal to proceed.  As the Tenth Circuit noted, the government conceded that “this appeal falls outside the scope of the waiver” because Blair received a sentence based on an offense level higher than that anticipated by the agreement.

 

News You Can Use: SCOTUS refrains (for now) from reviving nondelegation doctrine in Gundy v. United States

By Perrin Tourangeau

Perrin is a summer intern at the Office of the Federal Public Defender for the Districts of Colorado and Wyoming.  She is a rising second-year law student at the University of Virginia School of Law.  She was born and raised in Denver, and hopes to return to Colorado after finishing law school to pursue a career in public defense.

 In  Gundy v United States, a plurality of the Supreme Court narrowly dodged a nondelegation conflict presented by a challenge to the Sex Offender Registration and Notification Act (SORNA). Justices Kagan, Ginsburg, Breyer, and Sotomayor concluded that a SORNA provision which gives the Attorney General the authority “to specify the applicability” of SORNA’s registration requirements to sex offenders who were convicted before its enactment (pre-Act offenders) was a “distinctly small-bore” legislative delegation and, thus, “easily passes [constitutional] muster.” Gundy v. United States, –S. Ct.–, 9, 2019 WL 2527473 (2019); see 34 U.S.C. § 20913(d).

The nondelegation doctrine prohibits Congress from transferring its legislative power to another federal branch. Id. at 2. However, Congress can “confer substantial discretion on executive agencies to implement and enforce the laws, so long as it “supplie[s] an intelligible principle to guide the delegee’s use of discretion.” Id. at 4. While the provision in question does not explicitly impose a limitation on the Attorney General’s discretion regarding the application of SORNA to pre-Act offenders, based on the statute’s declaration of purpose, definition of “sex offender,” and legislative history, the plurality interpreted it to confine “the Attorney General’s discretion … only to considering and addressing feasibility issues” of applying the statute to pre-Act offenders, rather than allowing the Attorney General to decide whether or not to apply the statute to pre-Act offenders in general. Id.at 4-7. Therefore, the Court held that, because SORNA requires “the Attorney general [to] apply SORNA’s registration requirements as soon as feasible to offenders convicted before the enactment,” the statute provides an intelligible principle limiting the Attorney General’s authority and, thus, does not violate the nondelegation doctrine. Id. at 2.

The plurality expressed its hesitation to use the nondelegation doctrine to invalidate the provision, stating that “if SORNA’s delegation is unconstitutional, then most of the Government is unconstitutional,” and highlighting Congress’s need to delegate authority “under broad general directives.” Id. at 9 (quoting Mistretta v. United States, 488 U.S. 361, 372 (1989)). As noted on SCOTUS Blog, “[t]he lineup in Gundy shows that there are four justices … who are still willing to use the tools of statutory interpretation to fend off the nondelegation problem.” Mila Sohoni, Opinion analysis: Court refuses to resurrect nondelegation doctrine, SCOTUSBlog (June 20, 2019).

Justice Alito concurred in the judgment only, stating that “[i]f a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort. But because a majority is not willing to do that, it would be freakish to single out the provision at issue here for special treatment.” Id. at 10 (Alito, J., concurring in the judgment).

Justice Gorsuch, joined by Justice Thomas and the Chief Justice, dissented, taking issue with both the plurality’s interpretation of SORNA and its nondelegation analysis. Id. (Gorsuch, J., dissenting). Looking to contradictory representations about the provision’s meaning made by the government in previous cases and the lack of an explicit standard limiting the delegation in the statute’s text, the dissent concluded that SORNA’s delegation impermissibly authorizes “the nation’s chief law enforcement officer to write the criminal laws he is charged with enforcing” and provides no meaningful standard by which to limit that delegation. Id. at 22-23. Justice Gorsuch stated that in a previous case, “the government told this Court that SORNA supplies no standards regulating the Attorney General’s treatment of pre-Act offenders. This Court agreed, and everyone proceeded with eyes open about the potential constitutional consequences; in fact, the dissent expressly warned that adopting such a broad construction … would yield the separation-of-powers challenge we face today.” Id. at 25. Although Justice Gorsuch described the plurality’s feasibility standard as “imaginary,” he noted that even were it explicitly written into the section at issue, it is too ambiguous to actually cabin the executive’s exercise of the statutory delegation. Id. at 23.

The dissent proposes a more potent (or, as the dissent suggests, more constitutionally faithful) version of the nondelegation doctrine. Justice Gorsuch characterizes the intelligible principle doctrine as “another way to describe the traditional rule that Congress may leave the executive the responsibility to find facts and fill up details.” Id. at 17. According to the dissent, three kinds of statutory delegations “are constitutionally permissible: (1) legislation in which Congress makes the important policy decisions but leaves it to the executive to ‘fill up the details’; (2) legislation in which Congress prescribes the rule but leaves it to the executive to conduct fact-finding when the rule is applied; and (3) legislation that allows the executive broad discretionary power concerning matters that also fall within a zone of executive power.” Sohoni, supra. To the dissent, the nondelegation doctrine is a vital constitutional protection because it aids in the preservation of individual liberties, promotes legislative deliberation, provides stability, predictability, and fair notice to individuals, and increases political accountability. Gundy, –S. Ct. at 14(Gorsuch, J., dissenting).

Responding to the plurality’s concerns about the nondelegation doctrine’s potential to destabilize the entire modern executive branch, Justice Gorsuch argued that enforcing the doctrine does not “spell doom for what some call the ‘administrative state.’” Id. at 22. He frames the doctrine as merely a “procedural protection” and, thus, noted that it “does not prohibit any particular policy outcome, [nor does it] dictate any conclusion about the proper size and scope of government. Id. This construction of the doctrine hardly leaves Congress without tools to achieve its legislative objectives: according to Justice Gorsuch, Congress permissibly “may … authorize executive branch officials to fill in even a large number of details, to find facts that trigger the generally applicable rule of conduct specified in a statute, or to exercise non-legislative powers.” Id.

Justice Kavanaugh did not participate in the decision.

Takeaways

  • SORNA applies to pre-Act offenders. This much is obvious: those convicted of a qualifying sex offense before SORNA’s enactment (pre-Act offenders) must comply with SORNA’s registration requirements as dictated by the Attorney General pursuant to 34 U.S.C. § 20913(d) and 75 Fed. Reg. 81850. Those pre-Act offenders who knowingly fail to register under the Act may be imprisoned for up to ten years. 18 U.S.C. § 2250(a).
  • Be on the lookout for potential challenges to legislative delegations in criminal statutes. Four justices explicitly indicated in Gundy that they are “willing to reconsider the nondelegation doctrine from the ground up,” and Justice Kavanaugh could provide a fifth vote to revitalize the doctrine in future cases. Sohoni, supra. The Gundy dissent is particularly concerned with statutory delegations that combine “lawmaking and law enforcement responsibilities … in the same hands” as well as those that give the executive branch the power to “make all the important policy decisions” without providing a meaningful standard “court[s] might later use to judge whether [the executive] exceeded the bounds of the authority,” like the ambiguous feasibility standard that the majority read into34 U.S.C. § 20913(d). Gundy, –S. Ct. at 23 (Gorsuch, J., dissenting). However, some commentators doubt the potency of this potential revival of the nondelegation doctrine, arguing that the “intelligible principle” doctrine is too “mushy” to be applied consistently by the Court, Rick Hills, Gundy, Constitutional Coalitions, and the Credible Commitment Problem of the Constitutional Doctrine, PrawfsBlawg (June 22, 2019), and that if the Court was unwilling to invalidate a “low-stakes” statute like that in Gundy, it is highly unlikely to invalidate future laws as the stakes increase. Adrian Vermeule, Never Jam Today, Notice & Comment (June 20, 2019).
  • Preserve, preserve, preserve. Given Justice Alito’s concurrence and the fact that Justice Kavanaugh did not participate in the Gundy decision, lawyers should continue to preserve the nondelegation argument regarding U.S.C. § 20913(d) in SORNA cases involving pre-Act offenders. The Gundy concurrence and dissent suggest that future challenges to this provision might be worthwhile, and we may even see rehearing requests pr more certiorari petitions because Justice Kavanaugh did not weigh in on the decision.