U.S. v. Husted

• Decision Date: 05 November 2008
• Docket Number: No. 08-6010.,08-6010.
• Citation: 545 F.3d 1240
• Parties: UNITED STATES of America, Plaintiff-Appellee. v. Michael Ray HUSTED, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

545 F.3d 1240

UNITED STATES of America, Plaintiff-Appellee. v. Michael Ray HUSTED, Defendant-Appellant.

No. 08-6010.

United States Court of Appeals, Tenth Circuit.

November 5, 2008.

William P. Earley, Assistant Federal Public Defender, Oklahoma City, OK, for the Defendant-Appellant.

Robert Don Gifford, II, Assistant U.S. Attorney (John C. Richter, United States Attorney, with him on the briefs), Oklahoma City, OK, for the Plaintiff-Appellee.

Before HENRY, Chief Judge, BRISCOE, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Michael Ray Husted challenges his conviction under 18 U.S.C. § 2250, part of the Sex Offender Registration and Notification Act ("SORNA" or "the Act"), for failure to register as a sex offender after traveling in interstate commerce. He makes four arguments on appeal: (1) SORNA does not apply to him because his interstate travel was complete before the Act became effective; (2) SORNA does not apply to him because Missouri state law did not require him to register; (3) if SORNA does apply to him, it violates the Ex Post Facto Clause of the Constitution; and (4) SORNA is not within Congress's Commerce Clause authority. We conclude that SORNA cannot apply to a defendant whose interstate travel is complete prior to the effective date of the Act. Exercising jurisdiction under 28 U.S.C. § 1291, we reverse Husted's conviction.

I

Husted was convicted of aggravated criminal sexual abuse of a child on March 22, 1993, in Hancock, Illinois. Under Illinois law, Husted was required to register as a sex offender and to annually update his registration with Illinois authorities. In April 2005, he failed to update his registration with the Illinois sex offender registry, so his registration obligation was extended for an additional ten years. In January 2006, Husted informed the Hancock County Sheriff's Department in Illinois that he was moving to Enid, Oklahoma. Husted left Illinois for Oklahoma shortly thereafter.

Husted registered as a sex offender with Oklahoma authorities on February 8, 2006, and updated his registration on March 15, 2006. He did not thereafter update his registration with Oklahoma authorities and, as a result, fell out of compliance with Oklahoma law. On February 8, 2007, Oklahoma officials mailed a letter to Husted at his Enid address informing him that he was out of compliance with state registration requirements. Because Husted no longer lived at his recorded address, the letter was returned six days later. In response, officials from the Oklahoma Department of Corrections notified the United States Marshals Service that Husted was in violation of Oklahoma law and that his whereabouts were unknown. Officers from the Enid Police Department then visited Husted's last known address to investigate and learned that Husted had moved in April 2006.

On April 6, 2007, a Deputy United States Marshal contacted the police department in Lebanon, Missouri to determine if Husted had moved there. The Lebanon Police Department reported that Husted had been arrested on unrelated charges on March 6, 2007, while living in Lebanon. At no point did Husted inform Oklahoma officials of his move to Missouri, nor did he register with Missouri officials upon his arrival in Lebanon.

It is not clear from the record precisely when Husted moved from Oklahoma to Missouri, but it is undisputed that he did so prior to July 27, 2006, the effective date of SORNA. Moreover, there is no indication from the record that Husted ever left Missouri after July 27, 2006, and the government does not argue to the contrary. As the government conceded at oral argument, on the record before us, Husted's interstate travel was complete prior to SORNA's effective date.

In April 2007, an Oklahoma grand jury indicted Husted with one count of failure to register as a sex offender, in violation of SORNA, specifically 18 U.S.C. § 2250.¹ The indictment alleged that Husted had failed to properly "update and register as a sex offender" in Missouri after traveling in interstate commerce from Oklahoma. Husted moved to dismiss his indictment, raising the same four arguments he has preserved on appeal: (1) SORNA did not apply to him because his interstate travel was complete prior to the Act's effective date; (2) Missouri law did not require Husted to register as a sex offender, so his failure to register in Missouri could not serve as the basis for a SORNA violation; (3) applying SORNA to Husted violated the Ex Post Facto Clause of the Constitution; and (4) SORNA exceeded the scope of Congress's Commerce Clause authority. The district court denied Husted's motion to dismiss but, apparently concerned about a potential Ex Post Facto Clause violation, amended the indictment to reflect July 27, 2006—the effective date of SORNA—as the date the offense commenced.

Husted pleaded guilty to the indictment, reserving the right to appeal the denial of his motion to dismiss. The district court sentenced Husted to 18 months' imprisonment as well as five years of supervised release. Appeal was then taken.

II

Before reaching any constitutional issues, we must first decide whether 18 U.S.C. § 2250(a)(2)(B) applies to a defendant whose interstate travel is complete prior to July 27, 2006, the date SORNA became effective. We conclude that it does not.

We review issues of statutory interpretation de novo, accepting the district court's factual determinations unless they are clearly erroneous. United States v. Manning, 526 F.3d 611, 614 (10th Cir. 2008).

A

We begin our analysis, as we must, with the text of SORNA. E.g., Duncan v. Walker, 533 U.S. 167, 172, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001); Williams v. Taylor, 529 U.S. 420, 431, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000); United States v. Gonzales, 520 U.S. 1, 4, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). If the words of the Act are unambiguous, our inquiry progresses no further. Gonzales, 520 U.S. at 6, 117 S.Ct. 1032 ("Given the straightforward statutory command, there is no reason to resort to legislative history."); Conn. Nat'l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ("When the words of a statute are unambiguous, then, this first canon is also the last: `judicial inquiry is complete.'" (citation omitted)); Kelley v. City of Albuquerque, 542 F.3d 802, 813 (10th Cir.2008). It is a cardinal principle of statutory construction that "[i]f the language is clear and unambiguous, the plain meaning of the statute controls." Vaughn v. Epworth Villa, 537 F.3d 1147, 1152 (10th Cir.2008) (quotation omitted). Based on SORNA's plain language, we conclude that § 2250(a)(2)(B) does not apply to an individual whose interstate travel is complete before July 27, 2006.

SORNA provides:

a) In general.—Whoever—

(1) is required to register under the Sex Offender Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or

(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;

shall be fined under this title or imprisoned not more than 10 years, or both.

18 U.S.C. § 2250 (emphasis added). Thus, in order to convict a defendant under § 2250 using the first clause of subsection (a)(2)(B), the government must prove that he: (1) is required to register under SORNA;² (2) travels in interstate commerce;³ and (3) knowingly fails to register or update registration as required by SORNA. We need only address the second element in order to resolve this appeal. Husted argues that SORNA does not apply to him because the term "travels" only covers individuals who travel in interstate commerce after SORNA's effective date. By contrast, the government contends that the term "travels" encompasses individuals who travel in interstate commerce at any point after they have been convicted of a qualifying sex offense. We agree with Husted.

As noted, § 2250(a)(2)(B) applies to whomever "travels in interstate ... commerce" (emphasis added). Congress's use of the present tense form of the verb "to travel" indicates that SORNA's coverage is limited to those individuals who travel in interstate commerce after the Act's effective date.⁴ See 1 U.S.C. § 1 (directing courts that, unless context indicates otherwise, "words used in the present tense include the future as well as the present"); United States v. Wilson, 503 U.S. 329, 333, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992) ("Congress' use of a verb tense is significant in construing statutes."). The Act uses the present tense ("travels"), which according to ordinary English grammar, does not refer to travel that has already occurred. Had Congress used the past tense ("traveled") or the present perfect tense ("has traveled"), then this might be a different case. Here, however, we find no ambiguity in Congress's use of the word "travels."

Additionally, Congress's use of the present tense throughout § 2250(a)(2)(B) confirms our interpretation of the term "travels." See United States v. Bishop, 412 U.S. 346, 356, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973) ("[C]ontext is important in the quest for [a] word's meaning."); United States v. Ceballos-Martinez, 387 F.3d 1140, 1144 (10th Cir.2004) (noting that statutory interpretation "requires [courts] to interpret Congress's choice of words in the context that it chose to use them"). Following the word "travels" in § 2250(a)(2)(B), the remainder of that clause encompasses whoever "enters or leaves, or resides in, Indian country" (emphasis added). Because Congress also used the present tense of the verbs "to enter," "to leave," and "to reside" in the...