U.S.A v. Buren, Docket No. 08-6262-CR.

• Decision Date: 17 March 2010
• Docket Number: Docket No. 08-6262-CR.
• Parties: UNITED STATES of America, Appellee, v. Barclay J. VAN BUREN, Jr., Defendant-Appellant.1
• Court: U.S. Court of Appeals — Second Circuit

599 F.3d 170

UNITED STATES of America, Appellee, v. Barclay J. VAN BUREN, Jr., Defendant-Appellant.¹

Docket No. 08-6262-CR.

United States Court of Appeals Second Circuit.

Argued: Jan. 22, 2010.

Decided: March 17, 2010.

James P. Egan, Office of the Federal Public Defender (Alexander Bunin, Federal Public Defender, and Lisa A. Peebles First Assistant Federal Public Defender on the brief), Syracuse, N.Y., for Defendant-Appellant.

Richard A. Friedman, Appellate Section Criminal Division, United States Department of Justice (Lanny A. Breuer, Assistant Attorney General, and Gary G. Grindler, Deputy Assistant Attorney General Criminal Division, United States Department of Justice; Andrew T. Baxter, United States Attorney, and Kevin P. Dooley and Brenda K. Sannes, Assistant United States Attorneys, Northern District of New York; on the brief), Washington, D.C., for Appellee.

Before: WALKER, STRAUB, and LIVINGSTON, Circuit Judges.

STRAUB, Circuit Judge:

The United States District Court for the Northern District of New York (Thomas J McAvoy, Judge) entered a judgment of conviction and sentence against defendantappellant Barclay J. Van Buren, Jr., after a jury found him guilty of failing to comply with the requirements of the Sex Offender Registration and Notification Act ("SORNA"), 18 U.S.C. § 2250 and 42 U.S.C. § 16901 et seq. Defendant appeals, arguing that the District Court erred in denying his motion to dismiss the indictment and erred in its instructions to the jury. More specifically, defendant argues that his indictment should have been dismissed for the following reasons: (1) SORNA exceeds Congress's Commerce Clause authority; (2) SORNA impermissibly delegates legislative authority to the executive branch; and (3) SORNA should not apply to him because the states in which he traveled and resided have not yet implemented SORNA. In addition, defendant argues that (4) the District Court erred in instructing the jury about the scope of his duties under SORNA. For the reasons set forth below, we reject all four of defendant's arguments.

FACTUAL AND PROCEDURALBACKGROUND

I. Defendant's Underlying Federal Sex Offense and Previous Violations of Supervised Release

On March 19, 2002, defendant pleaded guilty in the United States District Court for the Northern District of New York to receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). As a consequence of that conviction, defendant was required to register as a sex offender in New York State, which he first did in June 2004.

While defendant was serving his threeyear term of supervised release for his March 2002 federal sex offense conviction, he did not abide by the conditions of his supervised release and, as a result, was resentenced to six months of incarceration to be followed by a new term of thirty months of supervised release. While serving this new term of supervised release, defendant again violated the conditions of his supervised release, this time by failing to "refrain from places where individuals under the age of 18 are likely to congregate." Accordingly, on October 19, 2006, the District Court revoked defendant's term of supervised release and sentenced him to an additional twelve months of imprisonment, to be followed by a new term of eighteen months of supervised release.

II. Defendant's Failure to Update Registry and Subsequent Arrest

After being released from incarceration and beginning a third term of supervised release, defendant lived in the Dixie Hotel at 106 Henry Street, Binghamton, New York, which was his registered address in the New York sex offender registry. Home confinement was a condition of defendant's supervised release, and defendant was required to wear an electronic monitoring device and inform his probation officer of his movements. On February 20, 2008, defendant signed out of his residence and failed to return or contact his probation officer. On March 7, 2008, the United States Marshals Service filed a criminal complaint against defendant, alleging that he failed to register or update his registration information as required by SORNA, in violation of 18 U.S.C. § 2250. An arrest warrant issued, and law enforcement officers arrested defendant that night at his mother's residence in Burlington, North Carolina. At no time between February 20, 2008, and his arrest on March 7, 2008, did defendant update hisresidency information with the New York sex offender registry, nor did he register in North Carolina.

III. Indictment, Denial of Motion to Dismiss, and Jury Instruction

On April 17, 2008, an indictment returned in the United States District Court for the Northern District of New York charged that defendant, being "an individual required to register under [SORNA] by reason of his conviction under federal law, did travel in interstate commerce and did knowingly fail to register and update his registration as required by law, " in violation of 18 U.S.C. § 2250(a).

Prior to trial, defendant moved to dismiss the indictment on various statutory and constitutional grounds. The District Court denied defendant's motion in a thorough decision filed on August 8, 2008. Pertinent to the present appeal, the District Court rejected defendant's arguments that SORNA (1) exceeds Congress's authority under the Commerce Clause, (2) violates the non-delegation doctrine, and (3) did not apply to him because New York and North Carolina have not yet implemented the statute.

At trial, the parties disputed whether the termination of defendant's New York residence constituted a "change" in residence sufficient to trigger his duty under SORNA to update his registration information. Defendant argued that termination of his old residence was insufficient and that he was required to update his registration information only upon establishing a new residence. The District Court rejected defendant's argument, instructing the jury in accordance with the government's requested charge that terminating a residence with no intention of returning constitutes a "change" in residence under SORNA.

DISCUSSION

I. Defendant's First Three Arguments

Defendant concedes that the first three issues that he raises on appeal—whether SORNA exceeds Congress's Commerce Clause authority; whether SORNA impermissibly delegates legislative authority to the executive branch; and whether SORNA applies to defendant even though New York and North Carolina have not yet implemented SORNA—are foreclosed by our recent opinion in United States v. Guzman, 591 F.3d 83 (2d Cir.2010). Because defendant's first three arguments are the same as those that we rejected in Guzman, we find no error in the District Court's decision that rejected these three arguments and denied defendant's motion to dismiss the indictment.

II. Defendant's Argument Regarding the Jury Instruction

The only issue not foreclosed by our recent decision in Guzman is defendant's argument that the District Court incorrectly instructed the jury about the scope of defendant's registration duties under SORNA. Under SORNA, a convicted sex offender must register "and keep the registration current, in each jurisdiction where the offender resides, " is employed or is a student. 42 U.S.C. § 16913(a). More specifically, under 42 U.S.C § 16914, a convicted sex offender must "provide... [t]he address of each residence at which the sex offender resides or will reside." Id. § 16914(a)(3). Moreover, within "3 business days after each change of name, residence, employment, or student status, " section 16913(c) provides that a registrant must "appear in person" at an appropriate office "and inform [the] jurisdiction of all changes in the information required for that offender in the sex offender registry." Id. § 16913(c) (emphasisadded). The jurisdiction so informed must then share that information with other jurisdictions where the offender is required to register. Id. Under SORNA's criminal enforcement provision, if an individual who is required to register knowingly fails to register or keep the registration information current, the offender is subject to a fine, imprisonment, or both. 18 U.S.C. § 2250(a).

According to the government, "[t]he principal legal and factual dispute at trial was whether the government... had to prove that [defendant] established a new residence elsewhere, or whether his termination of the hotel residence was a sufficient 'change' to his residency to trigger the requirement that he update his registration information" under SORNA. Brief of Appellee at 10. With regard to this issue, the District Court accepted the government's position that termination of a residence with no intention of returning is sufficient to trigger a registrant's duty to update his information and delivered the following jury instruction over defendant's objection:

The Sex Offender Registration and Notification Act requires a sex offender to report a change of name, residence, employment, or student status within three days after any such change. The report must be provided to either the state where the sex offender resides, works, or is a student.

To change something means to make different from what it is; or to substitute one thing for another. One's residence is defined as where one reside[s] or maintains his home. The term resides means location of the individual's home or other place where the individual habitually lives. A change in residence does not require that you find that the defendant has established a new residence. Rather, it's enough for you to find that the defendant's home or other place where he habitually lives is no longer the same as the one listed in the registry. Accordingly, if you find the defendant left the residence listed in the registry with no intention of returning and knowingly failed to notify the registry of that fact within three days of the change, then you must find that this third element has been satisfied. On the other hand, if you find the defendant left the residence listed in the...