United States v. Mark Elk Shoulder

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 18-30008
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 18-30008 18-30251 Plaintiff-Appellee, D.C. No. 1:17-cr-00040-SPW-1 v.

MARK STEVEN ELK SHOULDER, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Susan P. Watters, District Judge, Presiding

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

In these companion appeals, Mark Steven Elk Shoulder appeals the district

court’s order denying his motion to dismiss his indictment for failing to register as

a sex offender in violation of the Sex Offender Registration and Notification Act

(“SORNA”), 18 U.S.C. § 2250(a), and the judgment revoking his supervised

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Elk Shoulder’s argument that SORNA violates the nondelegation doctrine is

foreclosed by a Supreme Court decision decided after his opening briefs were filed.

See Gundy v. United States, 139 S. Ct. 2116, 2129 (2019) (Congress did not make

an impermissible delegation when it instructed the Attorney General to apply

SORNA’s registration requirements to pre-Act offenders). As Elk Shoulder

concedes, his remaining arguments are also foreclosed. See United States v.

Cabrera-Gutierrez, 756 F.3d 1125, 1129-32 (9th Cir. 2014) (Congress had the

authority to enact SORNA under the Commerce Clause); United States v. Elk

Shoulder, 738 F.3d 948, 953-54 (9th Cir. 2013) (application of SORNA to pre-Act

offenders does not violate the Ex Post Facto Clause); Elk Shoulder, 738 F.3d at

955-58 (application of SORNA to pre-Act offenders is not unconstitutional

because they were subject to the requirements of the Wetterling Act before

SORNA was enacted and, therefore, their release from federal custody was not

unconditional). Elk Shoulder argues that Cabrera-Gutierrez and Elk Shoulder

were wrongly decided, but as a three-judge panel, we are bound by those decisions.

See United States v. Herrera-Rivera, 832 F.3d 1166, 1175 (9th Cir. 2016).

AFFIRMED.

2 18-30008 & 18-30251