United States v. Lunsford

• Decision Date: 05 August 2013
• Docket Number: No. 12–3616.,12–3616.
• Citation: 725 F.3d 859
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Robert D. LUNSFORD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

725 F.3d 859

UNITED STATES of America, Plaintiff–Appellee,

v.Robert D. LUNSFORD, Defendant–Appellant.

No. 12–3616.

United States Court of Appeals, Eighth Circuit.

Submitted: April 10, 2013.

Filed: Aug. 5, 2013.

Travis D. Poindexter, Asst. Fed. Public Defender, argued (Raymond C. Conrad, Jr., Fed. Public Defender, Stephen C. Moss, Asst. Fed. Public Defender, on the brief), for appellant.

Teresa A. Moore, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before COLLOTON and SHEPHERD, Circuit Judges, and ROSE¹, District Judge.

COLLOTON, Circuit Judge.

Robert Lunsford, a sex offender subject to the requirements of the Sex Offender Registration and Notification Act (“SORNA”), entered a conditional plea of guilty to a charge of failing to update his registration after he moved from Missouri to the Philippines. He appeals the district court's denial of his motion to dismiss the indictment, arguing that SORNA did not require him to update his registration in Missouri to reflect his move out of the country. Because the text of SORNA does not extend registration requirements to Lunsford's situation, we conclude that the motion to dismiss was meritorious, and we therefore reverse.

I.

Because Lunsford sustained convictions for sexual abuse in 1990 and 1993, SORNA required him to register as a sex offender. In February 2011, Lunsford lived and was registered at an address on Northwest Plaza Drive, Kansas City, in Clay County, Missouri. On May 3, Lunsford boarded a flight from Kansas City to the Philippines on a round-trip ticket, with a return scheduled for May 24. He did not use his return ticket, however, and he did not inform the Missouri registry of a change of residence. On July 20, law enforcement officers arrested Lunsford in the Philippines. He was eventually deported and sent back to the United States.

A grand jury in Western Missouri charged Lunsford with one count of failing to update his registration, in violation of 18 U.S.C. § 2250(a). Lunsford moved to dismiss the indictment, arguing that SORNA did not require him to update his registration when he left the United States. The district court denied the motion, adopting the recommendation of a magistrate judge, and Lunsford entered a conditional guilty plea. Lunsford appeals the district court's denial of his motion to dismiss.

II.

SORNA requires a sex offender to “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.” 42 U.S.C. § 16913(a). To “keep the registration current,” an offender must “not later than 3 business days after each change of ... residence ... appear in person in at least 1 jurisdiction involved pursuant to [42 U.S.C. § 16913(a) ] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” Id. § 16913(c). The offender must supply, among other things, the address of “each residence at which the sex offender resides or will reside.” Id. § 16914(a)(3). A sex offender violates 18 U.S.C. § 2250(a) if he travels in interstate or foreign commerce and knowingly fails to register or update a registration as required by SORNA.

Lunsford changed his residence when he moved to the Philippines. A change of residence triggers an obligation on the part of a sex offender to update a “jurisdiction involved” with the address of his new residence. 42 U.S.C. §§ 16913(c); 16914(a)(3). SORNA's definition of “jurisdiction” excludes foreign countries, id. § 16911(10), so Lunsford was not required to register in the Philippines. The government's theory is that Lunsford violated SORNA when he did not supply information about his change of residence to the Missouri registry. He was required to do so, however, only if Missouri was a “jurisdiction involved,” within the meaning of SORNA, when he changed his residence.

A “jurisdiction involved” is a jurisdiction where the offender resides, is an employee, or is a student. Id. § 16913(a), (c). The government does not argue that Lunsford was an employee or a student in Missouri at the relevant time, but contends that Missouri was a “jurisdiction involved” because it was the “jurisdiction where the offender resides.” Id. § 16913(a). SORNA defines “resides” to mean, “with respect to an individual, the location of the individual's home or other place where the individual habitually lives.” Id. § 16911(13).

The stipulated factual basis for Lunsford's guilty plea demonstrates that he did not reside in Missouri when he changed his residence. According to the plea agreement, Lunsford allegedly violated SORNA between May 3 and July 28, “ after he traveled in interstate and foreign commerce.” Plea Agreement at 3 (emphasis added). The government does not contend, for example, that Lunsford established a new residence in Missouri after he abandoned his residence on Northwest Plaza Drive and before he boarded his flight to the Philippines. The plea agreement reflects the understanding of the parties that Lunsford did not change his residence and trigger a reporting obligation until after he left the United States. But after Lunsford left the country, Missouri was not the location of his home or a place where he habitually lived, so Lunsford did not “reside” in Missouri when he changed his residence. See42 U.S.C. § 16911(13).

The government nonetheless contends that Missouri was a “jurisdiction involved,” because it was the jurisdiction where Lunsford resided until he changed his residence. The National Guidelines for Sex Offender Registration and Notification, which provide guidance to States about SORNA, seem to reflect this understanding of the statute, saying that “[i]f a sex offender simply leaves the country and does not inform the jurisdiction or jurisdictions in which he has been registered, then the requirement to keep the registration current will not have been fulfilled.” 73 Fed.Reg. 38,030, 38,066–67 (July 2, 2008). Neither the National Guidelines nor the government's brief in this case, however, grapple effectively with the language of the statute on this point, and we conclude that the text forecloses the government's position. An offender is required to “keep the registration current” in the jurisdiction where he “resides,” 42 U.S.C. § 16913(a), not a jurisdiction where he “resided.” “Resides” is a present-tense verb, and “the present tense generally does not include the past.” Carr v. United States, 560 U.S. 438, 130 S.Ct. 2229, 2236, 176 L.Ed.2d 1152 (2010) (citing the Dictionary Act, 1 U.S.C. § 1). There is thus no textual basis for requiring an offender to update his registration in a jurisdiction where he formerly “resided,” and where he is not currently an employee or a student. Missouri was not a “jurisdiction involved” after Lunsford changed his residence to somewhere in the Philippines, so Lunsford was not required by the federal statute to update the Missouri registry.

III.

The government advances three principal arguments against this straightforward application of the statutory text. First, it relies on United States v. Murphy, 664 F.3d 798 (10th Cir.2011), a case in which a registered sex offender abandoned his residence in Utah, traveled by bus to Mexico, and relocated to Belize without updating the Utah registry. Id. at 800. A divided panel affirmed Murphy's conviction for violating § 2250(a), concluding that “[w]hen an offender leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved.” Id. at 803. One court has observed that “Murphy is no model of clarity,” United States v. Lewis, No. 12–10180, 2013 WL 1308512, at *3 (D.Kan. Mar. 28, 2013), and the Tenth Circuit may have concluded that the offender still resided in Utah within the meaning of § 16911(13) when he changed his residence and triggered his reporting obligation. See Murphy, 664 F.3d at 803 (“[T]he intentional abandonment of a home does not in itself change the ‘jurisdiction where the offender resides,’ so long as the offender was still a resident of the state when the abandonment occurred.”). But insofar as Murphy concluded that an offender who leaves a domestic jurisdiction for a foreign jurisdiction necessarily must update his registration in the domestic jurisdiction where he formerly resided, we respectfully disagree. According to the statute, a jurisdiction is a “jurisdiction involved” only if the offender resides, works, or studies there “after [a] change of ... residence.” 42 U.S.C. § 16913(a), (c); see Murphy, 664 F.3d at 805–06 (Lucero, J., dissenting).²

The government also relies on policy arguments—principally, SORNA's asserted purpose to establish a comprehensive national registration system, and the corresponding need to prevent sex offenders from evading registration requirements by adopting an itinerant lifestyle. See United States v. Van Buren, 599 F.3d 170, 174–75 (2d Cir.2010). The government contends that if the jurisdiction from which a sex offender departs does not count as a “jurisdiction involved,” then transient offenders could avoid registering altogether by continuously relocating without establishing a new residence. This court has recognized, however, that transient sex offenders who lack a fixed residence usually will “habitually live” somewhere: for example, in “ ‘a certain part of a city that is the sex offender's habitual locale, a park or spot on the street (or a number of such places) where the sex offender stations himself during the day or sleeps at night.’ ” See United States v. Voice, 622 F.3d 870, 875 (8th Cir.2010) (quoting National Guidelines, 73 Fed.Reg. at 38,055). Therefore, SORNA's requirement that a sex offender register in the jurisdiction where he “habitually lives” typically should ensure that a sex offender who moves from one jurisdiction to another is required to register in the jurisdiction to which he...