United States of America v. Billy Joe Reynolds

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4747
UNITED STATES OF AMERICA
v.
BILLY JOE REYNOLDS,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court No. 2-07-cr-00412-001
District Judge: The Honorable Donetta W. Ambrose
Argued October 27, 2009
Before: SMITH, FISHER, and STAPLETON, Circuit Judges
(Filed: May 14, 2010)
Donovan J. Cocas (argued)
Robert L. Eberhardt
Laura S. Irwin
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Candace Cain (argued)
Jay J. Finkelstein
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellant

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OPINION
SMITH, Circuit Judge.
Billy Joe Reynolds pleaded guilty to one count of knowingly failing to register and
update a registration, in violation of the Sex Offender Registration and Notification Act
(“SORNA”), 18 U.S.C. § 2250. In this appeal, he challenges the constitutionality of SORNA
and the legality of the Attorney General’s Interim Rule implementing that law. See 72 Fed.
Reg. 8894 (Feb. 28, 2007) (codified at 28 C.F.R. § 72.1-72.3). He also argues that his guilty
plea should be invalidated because he is “actually innocent” of violating SORNA’s
registration requirements. We reject each of his arguments and will affirm the judgment of
conviction.
First, Reynolds argues that SORNA’s registration requirements exceed congressional
power under the Commerce Clause. He also contends that punishing him for failing to
comply with those requirements violates the Ex Post Facto Clause and offends due process.
These claims are foreclosed by our decision in United States v. Shenandoah, 595 F.3d 151
(3d Cir. 2010).
Second, Reynolds argues that SORNA’s registration regime violates the Tenth
Amendment. We decline to reach this argument because Reynolds lacks standing to raise
it. Id. at 161-62.
Third, Reynolds asserts that the Interim Rule is invalid because it violates the Non-

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Delegation Doctrine. He also notes that the Interim Rule was made effective immediately
and promulgated without a 30-day notice and comment period, and maintains that such
enactment was not justified under the “good cause” exceptions of 5 U.S.C. § 553(b)(3)(B)
and (d)(3). We decline to reach these arguments as well. In Shenandoah, we held that the
Interim Rule affected only those sex offenders who “did not have a registration requirement
prior to the passage of SORNA but nonetheless were subject to sex offender registration
requirements after SORNA became law[.]” 595 F.3d at 163. We further held that the
defendant, who was required to register as a sex offender under state law before SORNA was
enacted—and was in fact so registered—lacked standing to challenge the Interim Rule. Id.
at 163-64. Reynolds was likewise registered under state law before Congress passed
SORNA. Therefore, the Interim Rule did not apply to him, and he lacks standing to
challenge it. Id. at 163-64.
Finally, Reynolds argues that he was actually innocent of violating SORNA’s
registration requirement, because SORNA required him to register only after he habitually
resided in Pennsylvania for at least 30 days, and he was present in the Commonwealth for
only 29 days before his arrest. Reynolds waived the right to advance that argument in his
plea agreement, however, and we conclude that enforcement of that waiver would not
constitute a miscarriage of justice. United States v. Gordon, 544 F.3d 529, 533 (3d Cir.
2008).
The judgment of conviction will be affirmed.

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