United States District Court, D. Vermont
Barbara A. Masterson, United States Attorney's Office, Burlington, VT, for Plaintiff.
MEMORANDUM OPINION AND ORDER: DEFENDANT'S RENEWED MOTION TO DISMISS THE INDICTMENT
WILLIAM K. SESSIONS III, District Judge.
On August 6, 2012, Defendant Cory Lott pleaded guilty to an Indictment charging him with knowing failure to register and update his registration as a sex offender in Vermont, in violation the Sex Offender Registration and Notification Act (" SORNA" or the " Act" ), 18 U.S.C. § 2250(a). Indictment, ECF No. 3; Plea Agreement, ECF No. 50. Lott's obligation to register under SORNA arose from a 2001 conviction
in New York for sexual abuse in the second degree. See Aff. of Michael Barron, Crim. Compl. Attach. 1, ECF No. 1-1, at *1-2. Prior to pleading guilty, Lott sought to dismiss the Indictment, arguing, among other things, that Congress did not have authority under the Commerce Clause to enact SORNA. On June 6, 2012, 2012 WL 2048218, this Court issued a Memorandum Opinion and Order rejecting Lott's arguments on the grounds that they were expressly foreclosed by Second Circuit case law. ECF No. 31 at *4 (citing United States v. Guzman, 591 F.3d 83 (2d Cir.2010), as amended, (Jan. 8, 2010), cert. denied,
__ U.S. __, 130 S.Ct. 3487, 177 L.Ed.2d 1080, 1081 (2010)). On July 31, 2012, Lott renewed his motion to dismiss the Indictment in light of the Supreme Court's recent opinion in National Federation of Independent Business v. Sebelius,
__ U.S. __, 132 S.Ct. 2566, 183 L.Ed.2d 450 (2012) (hereinafter " NFIB " ), which addressed the scope of Congress's authority under the Commerce Clause. For the reasons described below, the Court denies Lott's motion.
Lott challenges two components of SORNA: a registration requirement, 42 U.S.C. § 16913, and a criminal enforcement provision, 18 U.S.C. § 2250(a). 
Section 16913 provides that anyone convicted of a sex offense " 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." 42 U.S.C. § 16913(a). A sex offender must register before the completion of an incarcerative sentence or within three days of receiving a non-incarcerative sentence. Id. § 16913(b). And within three days of each subsequent " change of name, residence, employment, or student status," a sex offender must " appear in person in at least 1 jurisdiction involved ... and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry." Id. § 16913(c). The registration requirement applies to any sex offense— state, federal, or local-that falls within the definition at section 16911(5).
Section 2250(a) criminalizes the knowing failure to register or update one's registration required by SORNA, but only in cases where there is a federal jurisdictional nexus. Accordingly, when it is prosecuting an individual under the Act, the Government must show that the individual charged is sex offender under SORNA due to a federal conviction or that the individual travelled in interstate or foreign commerce. 18 U.S.C. § 2250(a)(2). Although section 2250(a) " is plainly aimed at ensuring that sex offenders register and update previous registrations when moving among jurisdictions," United States v. Whaley, 577 F.3d 254, 259 (5th Cir.2009), it does not apply to any individual who is a sex offender under SORNA because of a state crime and does not leave that jurisdiction. Enforcement of purely intrastate noncompliance with the registration requirement is left to— or, more accurately, required of— the states.
This case requires the Court to consider whether the Supreme Court's decision in NFIB, 132 S.Ct. 2566 (2012) effectively overrules Guzman.  In Guzman, the Second Circuit determined that SORNA's registration requirement and criminal enforcement provisions were valid exercises of Congress's authority under the Commerce Clause and the Necessary and Proper Clause.591 F.3d at 89-91. Lott argues that NFIB precludes Congress from compelling activity or regulating inactivity pursuant to its Commerce Clause power and that Congress therefore may not require sex offenders to register or punish them for failure to do so.
In United States v. Lopez, the Supreme Court " identified three broad categories of activity that Congress may regulate under its commerce power." 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). The Commerce Clause empowers Congress: (1) " [to] regulate the use of the channels of interstate commerce" ; (2) " to regulate and protect the instrumentalities of interstate commerce, or persons or thing in interstate commerce, even though the threat may come only from intrastate activities" ; and (3) " to regulate those activities having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce." Id. at 558-59, 115 S.Ct. 1624 (internal citations omitted). The Supreme Court entertain four further considerations to determine whether a regulation was valid under the third category: " (1) whether the regulated activity is economic in nature; (2) whether the statute contains an ‘ express jurisdictional element’ linking its scope in some way to interstate commerce; (3) whether Congress made express findings ...