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December 15, 2014
  United States v. Black - Tenth Circuit
Case Name: United States v. Black - Tenth Circuit

Headline: Tenth Circuit holds that, under SORNA, sex offenders are "more than 4 years" older than their victims if they are more than 48 months or 1,461 days older.

Areas of Law: Criminal Law

Issues Presented:

1. What does it mean for a sex offender to be "no more than 4 years older" than a victim for the purposes of the Sex Offender Registration and Notification Act?

Brief Summary:

The defendant pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that the Sex Offender Registration and Notification Act ("SORNA") did not require him to register as a sex offender because SORNA excludes consensual sexual acts if the victim was at least 13 years old and the offender was not more than 4 years older than the victim. At the time of the incident, the defendant was 18 years old, the victim was 14 years old, and the defendant was 55 months older than the victim. The defendant argued that he was not more than four years older than the victim; subtracting the victim's 14 years of completed life from his 18 years of completed life yielded only four years. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The Tenth Circuit upheld the district court's interpretation of the statute. Following the Third Circuit's approach to this issue, it held that "not more than 4 years older than the victim" means that no more than 1461 days or 48 months can separate the birthdays of the sex offender and the victim. The court affirmed the district court's order requiring the defendant to comply with SORNA's registration requirements.

Extended Summary:

SORNA provides a national database in which sex offenders are generally required to register. In defining a "sex offender" for this purpose, SORNA excludes those who committed offenses involving consensual sexual contact between individuals of certain ages. This case centers on a provision of SORNA's registration statute that states: "An offense involving consensual sexual conduct is not a sex offense for the purposes of [SORNA] if the victim . . . was at least 13 years old and the offender was not more than 4 years older than the victim." 42 U.S.C. § 16911(5)(C).

The defendant in this case pleaded guilty to one count of sexual abuse of a minor in Indian Country. At sentencing, the defendant argued that SORNA did not require him to register as a sex offender because, as an 18-year old, he was not more than four years older than his 14-year old victim even though he was 55 months older than her. The district court disagreed and concluded that SORNA requires a comparison of the defendant's and victim's birth dates to determine the difference in age.

The defendant argued that the district court's interpretation of SORNA's registration requirement was erroneous and suggested that the Tenth Circuit measure the age difference by subtracting the victim's completed years of life from the offender's completed years of life. Alternatively, the defendant argued that SORNA's registration requirement is ambiguous enough to warrant application of the rule of lenity. The Tenth Circuit reviewed both the question of statutory interpretation and applicability of the rule of lenity using a de novo standard of review.

In United States v. Brown, 740 F.3d 145 (3d Cir. 2013), the Third Circuit became the first circuit court to consider this issue. The district court in that case decided that the SORNA's registration provision in 42 U.S.C. § 16911(5)(C) was "susceptible to more than one reasonable interpretation". The Third Circuit disagreed. It began its process of statutory interpretation by looking at the plain language of the statute. It explained that words not otherwise defined in the legislative act would be construed as per their "ordinary or natural meaning". It also explained the need to consider the legislative act as a whole to determine if the legislature intended such an interpretation.

The Third Circuit turned its focus toward the common use of the term "year", finding it to mean 365 consecutive days (or 366 in leap years). This was supported by Black's Law Dictionary 1754 (9th ed. 2009), which defines a year as "[a] consecutive 365-day period beginning at any point." The court applied that definition and held that "no more than 4 years" in the statute means no more than 1,461 days or 48 months.

The Third Circuit also noted that applying the defendant's proposed interpretation of the statute would yield inconsistent results. It provided such an example: if an offender were 18 years old while the victim 14 years old, registration would not be required. If that offender became 19 years old while the victim remained 14, registration would then become required until the victim became 15 years of age (at which time, registration would no longer be required). The court concluded that Congress could not have intended for SORNA to be interpreted in a way that would lead to such inconsistency.

The Tenth Circuit wholly adopted the Third Circuit's analysis as grounds for rejecting the defendant's interpretation of the SORNA registration provision. It provided a further justification for doing so by reasoning that such an interpretation would have an "untoward collateral impact on the interpretation of substantive federal criminal provisions." The court noted that the statute under which the defendant pleaded guilty to statutory rape had a very similar age requirement. The statute only applies if the victim is between the ages of 12 and 16 and "at least four years younger" than the offender. Applying the defendant's interpretation to that statute would yield an opposite but equally undesirable result; using the colloquial understanding of "whole years of aging" would mean that the statute could reach defendants who are no more than three years and one day older than a sexual partner. It joined the Third Circuit in concluding that Congress could not possibly have intended for the random and inconsistent results that would follow such statutory interpretation.

The court then addressed the defendant's argument that the rule of lenity should apply. For the rule of lenity to be applicable, there must be a "grievous ambiguity or uncertainty in the statute". The court concluded that the term "4 years" in SORNA's registration provision is not ambiguous and, therefore, found the rule of lenity inapplicable.

To read the full opinion, please visit:

https://www.ca10.uscourts.gov/opinions/14/14-1000.pdf

Panel: Gorsuch, Sentelle, Murphy

Date of Issued Opinion: December 9, 2014

Docket Number: No. 14-1000

Decided: Affirmed the order of the district court.

Counsel:
Dean A. Strang, StrangBradley, LLC, Madison, Wisconsin (Robin Shellow, The
Shellow Group, Milwaukee, Wisconsin, on the brief), for Defendant - Appellant.

Catherine M. Gleeson, Office of the United States Attorney, Denver, Colorado
(John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special
Assistant United States Attorney, Denver, Colorado, on the brief), for Plaintiff -
Appellee.

Author: Murphy

Case Alert Author: Ian M. Alden

Case Alert Circuit Supervisor: Barbara Bergman

    Posted By: Dawinder Sidhu @ 12/15/2014 08:26 PM     10th Circuit  

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