United States v. BegayUnited States v. Begay
OPINION
Defendants-Appellants Brandon Dineshu Begay and Ozzy Carl Watchman (collectively, “Defendants”
1
) are convicted sex offenders. They initially registered as sex offenders with the State of Arizona pursuant to the Sex Offender Registration and Notification Act (“SORNA”), but did not update their registration information when they moved to a different Arizona address within the territory of the Navajo Nation, a federally recognized Indian tribe. Defendants were indicted for failing to update their registration, in violation of
Defendants argue that SORNA did not require them to update their registration with the State of Arizona while they were residing in the Navajo Nation, and that they could not update their registration with the Navajo Nation because it had not yet established a sex offender registry. Based on these premises, they invoke SORNA’s affirmative defense, which applies when “uncontrollable circumstances prevent[] the individual from complying” with SORNA.
We hold that SORNA required Defendants to update their registration with Arizona, and because nothing prevented them from doing so, no “uncontrollable circumstances prevented [them] from complying” with SORNA. Moreover, we hold that this application of SORNA violates neither the Due Process Clause nor the Ex Post Facto Clause. Thus, we affirm the district court’s denial of Defendants’ motions to dismiss their indictments.
I
We begin with the relevant background information: SORNA’s history and framework, the Navajo Nation’s experience with SORNA, and the facts and proceedings in each of the Defendants’ cases.
A
In 1994, Congress enacted the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (‘Wetterling Act”).
On July 27, 2006, Congress enacted the Adam Walsh Child Protection and Safety Act of 2006 (“Adam Walsh Act”). Pub.L. No. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). Title I of the Adam Walsh Act established SORNA, the declared purpose of which was “to protect the public from sex offenders and offenders against children ... [by] establish[-ing] a comprehensive national system for the registration of those offenders.”
The basic requirement under SORNA is that “[a] sex offender[
2
] shall register, and keep the registration current, in each jurisdiction where the offender resides[
3
] where the offender is an employee, and where the offender is a student.”
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to [§ 16913(a) ] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry. That jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to register.
Id. § 16913(c).
SORNA imposes criminal penalties on sex offenders who fail to abide by its requirements, providing that “[w]hoever ... knowingly fails to register or update a registration as required by [SORNA] shall be fined under this title or imprisoned not more than 10 years, or both.”
SORNA also expanded the jurisdictions included in the registration program, de
Jurisdictions covered under SORNA were given three years — until July 27, 2009 — to comply with its requirements,
Unlike the state’s obligation to implement SORNA, SORNA’s registration requirements applied immediately and retroactively to all sex offenders regardless of when they were convicted.
See
72 Fed. Reg. 8894, 8895 (Feb. 28, 2007) (“In contrast to SORNA’s provision of a three-year grace period for jurisdictions to implement its requirements, SORNA’s direct federal law registration requirements for sex offenders are not subject to any deferral of effectiveness. They took effect when SORNA was enacted on July 27, 2006, and currently apply to
all offenders
in the categories for which SORNA requires registration.” (emphasis added));
id.
at 8896 (“SORNA requires all sex offenders who were convicted of sex offenses in its registration categories to register in relevant jurisdictions, with no exception for sex offenders whose convictions predate the enactment of SORNA.”). Thus, a sex offender’s obligations to register and update his registration under SORNA are generally independent of a jurisdiction’s implementation of SORNA’s requirements.
See United States v. George,
B
In proceedings before the district court, Defendants submitted an affidavit prepared by Kathleen Bowman, the Public Defender for the Navajo Nation. This declaration states that, before the enactment of the Adam Walsh Act, the Navajo Nation Council (“Council”) passed a resolution enacting the Navajo Nation Sex Offenders Registration Act of 2005, which does not comply with SORNA’s requirements. Following the enactment of Adam Walsh Act, on July 19, 2007, the Council passed a resolution electing to implement the requirements of the Adam Walsh Act within the period of implementation by local jurisdictions, pursuant to
C
1
On June 5, 2006, Defendant-Appellant Brandon Dineshu Begay pleaded guilty in the District of Arizona to sexual abuse of a minor, in violation of
As a term of his plea and supervised release, Begay was required to register as a sex offender with all state and tribal sex offender agencies in any state where he resided, was employed, carried on a vocation, or was a student, as directed by the probation officer. He was further required to notify his probation officer within seventy-two hours of changing his residence and to update his sex offender registration with his new address within the same time frame. See ARIZ. REV. STAT. §§ 13-3821, 13-3822.
Begay initially registered with the State of Arizona as required on December 10, 2007. On July 9, 2008, Begay updated his registration, listing his new address as 2445 N. Oracle Road, Tucson, Arizona. This was the address of a residential treatment center named “New Beginnings,” where Begay was required to reside as part of his supervised release. On July 13, 2008, Begay left New Beginnings without permission. On July 31, 2008, he was arrested at his grandmother’s house in Tuba City, Arizona, which is within the confines of the Navajo Reservation. Be-gay did not register his change of address after he left New Beginnings, so his most recent registration is the New Beginnings address.
Begay was indicted on a single count of failure to update his registration as a convicted sex offender, in violation of
Begay entered a conditional plea of guilty to the indictment, expressly reserving the right to appeal the district court’s denial of his motion to dismiss. The district court sentenced Begay to twenty-four months’ imprisonment, followed by five years’ supervised release. Begay timely appealed.
2
On July 21, 2006, DefendanU-Appellant Ozzy Carl Watchman pleaded guilty in the District of Arizona to sexual abuse of a minor, in violation of
Watchman was indicted on a single count of failure to update his registration as a convicted sex offender, in violation of
After Watchman entered a conditional plea of guilty in which he reserved the right to appeal the district court’s decision, the district court sentenced Watchman to fifteen months’ imprisonment, followed by five years’ supervised release. Watchman timely appealed.
II
Defendants argue that the district court erred in denying their motions to dismiss their indictments. They make three arguments on appeal, one regarding the proper construction of SORNA and two regarding its constitutionality. We review issues pertaining to statutory interpretation and constitutional law de novo.
See United States v. Norbury,
A
The Defendants’ statutory argument is based on two premises. First, they argue that SORNA did not require them to update their registration with the State of Arizona while they were residing in the Navajo Nation. They reason that, because the Navajo Nation had elected to become a SORNA jurisdiction, the relevant “jurisdiction” with which they were required to register while residing within the Navajo Nation was only the tribe itself, not the state within which the tribe is located. Second, they correctly point out that they could not update their registration with the Navajo Nation because it had not yet established a sex offender registry. Based on these two premises, they conclude that “uncontrollable circumstances prevented [them] from complying” with SORNA.
Our reading of SORNA leads us to disagree with the Defendants’ first premise and therefore their conclusion. Because Defendants were required to update their registration with Arizona even while living in the Navajo Nation, no “uncontrollable circumstances” prevented their compliance with SORNA.
1
SORNA provides: “A sex offender 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.”
At the time of their arrest, Defendants had previously registered as sex offenders in the State of Arizona, but “resided” in both the Navajo Nation and the State of Arizona, both of which qualify as “jurisdictions” under SORNA.
See
We acknowledge that there is another plausible reading of the term “each jurisdiction.” Defendants argue that this term “means simply three possibilities: the SORNA jurisdiction where one lives, the SORNA jurisdiction where one works, and the SORNA jurisdiction where one goes to school.” They assert that “the word ‘each’ is important because the offender could reside in one jurisdiction, work in a second jurisdiction, and attend school in a third jurisdiction. In such a case, the word ‘each’ indicates that he is expected to register in all three jurisdictions.” On the other hand, they argue, “SORNA does not require sex offenders who live in a tribal SORNA jurisdiction to also register in another, standalone SORNA jurisdiction.” In other words, Defendants believe that the term “each jurisdiction” means that sex offenders are required to register in a maximum of three jurisdictions: a jurisdiction of residence, a jurisdiction of employment, and a jurisdiction of schooling.
Although this interpretation is not unreasonable, we do not consider it to be the best reading of SORNA. Rather than reading “each jurisdiction” as a cap on registration, we think it makes more sense to read it as expanding the obligation to register. Thus, SORNA should be read to mean that a sex offender “shall register, and keep the register current, in each jurisdiction where the offender resides, [in each jurisdiction] where the offender is an employer, and [in each jurisdiction] where the offender is a student.”
We have given the term “each jurisdiction” the reading that best ensures that sex offenders do not go “missing” from the registration rolls. Reading SORNA as Defendants read it would mean that sex offenders who move to tribal lands that have elected to implement SORNA but has not yet created a registry would have no obligation to update their registration, allowing them to “slip through the cracks.” Indeed, Defendants read the word “each” in the statute to require registration with only, at a maximum, one jurisdiction of residence, one jurisdiction of employment, and one jurisdiction of schooling. Under this reading, a sex offender who is employed in two states would be required to register in only one state, even if the vast majority of his time was spent in the other state. This could not have been what Congress intended. Rather, the most reasonable reading of the word “each” is that a sex offender must register with, and keep his registration current with, every jurisdiction in which he resides, works, or goes to school.
2
Defendants have four responses to our reading of the text and legislative intent of SORNA.
a
Defendants argue that our reading conflicts with
Carr.
In
Carr,
the Supreme Court held that
Defendants argue that, similarly, “this Court may not strain the statute’s language to fit the government’s notion of what would allegedly best serve the statute’s broad purpose of accounting for ‘missing sex offenders.’ ” We reject Defendants’ argument for two main reasons.
First, we believe that our interpretation of SORNA is not a “strained reading” but rather the best reading of the statute’s text. In requiring sex offenders to “keep the registration current[ ] in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student,”
Second, there is nothing novel about reading a statute in light of its legislative purpose; indeed, we have stated that “[t]he language of a statute
must
be interpreted in its context to effectuate legislative intent.”
Sink v. Aden Enters., Inc.,
b
Defendants also argue that interpreting SORNA to require them to update their registration with Arizona conflicts with Congress’s intent to give Indian tribes that elect to implement SORNA “a stature equal to states” as “separate jurisdictions” under SORNA, contrary to the scheme under the Wetterling Act. They contend that our interpretation “divest[s] the Navajo Nation of its SORNA responsibilities,” and that none “of the detailed provisions allowing for tribes to become SORNA jurisdictions ... would have been necessary if Congress intended for tribes and states to have concurrent SORNA jurisdiction over tribal territories.”
We disagree. We have not determined today that the Navajo Nation is not a separate SORNA jurisdiction. Rather, we have concluded, based on SORNA’s text, that
both
the Navajo Nation and the State of Arizona are SORNA jurisdictions. And we have determined that, until the Navajo Nation establishes a registry, and the Defendants register there, Defendants and other sex offenders living within the Navajo Nation’s confines must fulfill their obligation to keep their registration current in “each jurisdiction” in which they reside by updating their registration with Arizona, thus preventing them from “slipping through the cracks” by absconding to a
As we have discussed, once the Navajo Nation
does
implement a registry, sex offenders living within its confines will be able to fulfill their obligation to “keep the registration current! ] in each jurisdiction where [they] reside[ ],”
c
Third, Defendants argue that our interpretation leads to absurd and unfair results. Defendants point out that if Puerto Rico, which is a SORNA jurisdiction, “had no sex offender registry, a sex offender who lived, worked and went to school in Puerto Rico ... would have no obligation to register in any other SORNA jurisdiction.” Defendants argue:
The fact that an island territory is physically removed from other SORNA jurisdictions should not mean that SORNA imposes fewer registration obligations on the sex offenders who live, work, or go to school on that island territory than it does on the sex offenders who live, work, or go to school in any other SORNA jurisdiction.... Yet, the district court’s interpretation would impose a greater burden on the sex offender living on the Navajo Reservation than on the sex offender living in Puerto Rico. This is unfair, unwarranted, and illustrates the absurdity of the district court’s interpretation.
“It is true that interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.”
Griffin v. Oceanic Contractors, Inc.,
The Defendants’ final statutory argument is that, “[e]ven if the Court ... finds the term[‘each jurisdiction’] ambiguous, the rule of lenity requires that the term ‘each jurisdiction’ be given the more lenient construction.” However, the Supreme Court has held that “[t]he simple existence of some statutory ambiguity ... is not sufficient to warrant application of [the rule of lenity].”
Muscarello v. United States,
* * * * * *
In sum, Defendants were required to comply with SORNA by reporting their change of address to Arizona. And because nothing prevented them from doing so, no “uncontrollable circumstances” prevented their compliance with SORNA.
B
Alternatively, Defendants argue that if SORNA required them to update their registration with Arizona while they were residing on the Navajo Reservation, SORNA is unconstitutional under the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause. We address each of these clauses in turn. 8
1
The Fifth Amendment’s Due Process Clause guarantees that persons shall not “be deprived of life, liberty, or property without due process of law.” U.S. CONST, amend. V. Defendants argue that, “[b]ecause no mechanism yet exists for [Defendants] to comply with SORNA, it [wa]s impossible for [them] to be in compliance with the statute,” and that
Defendants’ argument with respect to the Due Process Clause is essentially a restatement of their argument that “uncontrollable circumstances” prevented them from complying with SORNA. As discussed above, SORNA obligated Defendants to register with Arizona and it was possible for them to do so. Thus, there was no violation of Defendants’ due process rights.
Cf. Brown,
2
Article 1, Section 9 of the Constitution provides that “[n]o ... ex post facto Law shall be passed.” Defendants argue that the punishment of Defendants “for failing to update their registration when [they could not] do so because the Navajo Nation has not implemented SORNA or any other sex offender registration scheme” violates the Ex Post Facto Clause.
But the Ex Post Facto Clause “forbids the Congress and the States to enact any law which imposes a punishment for an act
which was not punishable at the time it was committed;
or imposes additional punishment to that then prescribed.”
Weaver v. Graham,
Ill
We hold that SORNA required Defendants to update their registration with the State of Arizona, and that this application of SORNA violates neither the Due Process Clause of the Fifth Amendment nor the Ex Post Facto Clause. Thus, we affirm the district court’s denial of Defendants’ motions to dismiss their indictments.
AFFIRMED.
Notes
. We resolve these cases in a single opinion because they raise the same legal issues and involve virtually identical fact patterns, district court opinions, and briefs.
. "Sex offender” is defined as "an individual who was convicted of a sex offense.” Id. § 16911(1). SORNA expanded the range of crimes covered by that term and established three "tiers” of sex offenders based on the seriousness of the sex offense of which they were convicted. See id. § 16911 (2)-(8).
. "Resides” is defined, "with respect to an individual, [as] the location of the individual’s home or other place where the individual habitually lives.” Id. § 16911(13).
. This resolution stated:
The Navajo Nation hereby expressly reaffirms its intent to fully implement all of the applicable requirements of the Adam Walsh Act and wholly rejects the idea that any state may be authorized, without proper consultation, and contrary to the Navajo Nation government-to-government relationship with the United States Government, to exercise this type of jurisdiction within the Navajo Nation.
. For the same reasons, we disagree with Defendants' argument that the district court’s decision "offends the notion of tribal sovereignty” by compromising “the traditional right of the Navajo Nation to police its own members.” Requiring Defendants to update their registration with Arizona simply supplements registration with the Navajo Nation until the tribe actually establishes a registry.
. It is also worth noting that, as the district court pointed out, Defendants "certainly understood [their] obligation to register with Arizona,” given that they had both registered with Arizona previously and had updated their registration when they moved to New Beginnings.
. We admit that our reading of SORNA produces a bit of an oddity. A sex offender living, working, or going to school on an Indian reservation that has established a registry may fulfill his obligation to "[k]eep[ ] the registration current” simply by appearing in person at the Indian tribe's registry to update his registration.
. Our discussion of these constitutional arguments also implicitly addresses Defendants’ contention that we should construe SORNA in such a way as to avoid addressing serious constitutional issues pertaining to the Due Process Clause and the Ex Post Facto Clause.
See United States v. La Franca, 282
U.S. 568, 574,