United States of America v. Theophile J. Taken Alive

United States Court of Appeals
For the Eighth Circuit
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No. 12-3578
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Theophile J. Taken Alive
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Sioux Falls
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Submitted: May 13, 2013
Filed: May 22, 2013
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Theophile Taken Alive was convicted of a federal sex offense in February
2002. Then in 2012, Taken Alive was charged with failing to update his registration
as required by the Sex Offender Registration and Notification Act (SORNA). 42
U.S.C. § 16901 et seq. He moved to dismiss the indictment on the basis of a claim
which we have already rejected. Taken Alive argues that the Attorney General cannot

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constitutionally be given authority to determine SORNA's applicability to sex
offenders who were convicted before the statute's enactment, 42 U.S.C. § 16913(d),
citing the nondelegation doctrine of the United States Constitution. See Panama Ref.
Co. v. Ryan, 293 U.S. 388, 421 (1935). The district court upheld the1
constitutionality of the act. Taken Alive then conditionally plead guilty, reserving the
right to appeal the nondelegation issue.
A legislative enactment does not violate the nondelegation clause so long as
the law contains an "intelligible principle" to guide the implementing authority.
Mistretta v. United States, 488 U.S. 361, 372 (1989). We recently considered
nondelegation challenges to SORNA in United States v. Kuehl, 706 F.3d 917 (8th
Cir. 2013), and United States v. Fernandez, 710 F.3d 847 (8th Cir. 2013). We
concluded there that SORNA contains an "intelligible principle" guiding the Attorney
General's exercise of delegated authority. Kuehl, 706 F.3d at 920; Fernandez, 710
F.3d at 849. As Taken Alive's challenge is identical to the question raised and
decided in Kuehl and Fernandez, we affirm the judgment of the district court.
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The Honorable Lawrence L. Piersol, United States District Judge for the1
District of South Dakota, adopting the report and recommendation of the Honorable
John E. Simko, United States Magistrate Judge for the District of South Dakota.
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