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

Decision Date17 March 2010
Docket NumberDocket No. 08-6262-CR.
PartiesUNITED STATES of America, Appellee, v. Barclay J. VAN BUREN, Jr., Defendant-Appellant.1
CourtU.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.

[599 F.3d 171]

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 PROCEDURAL
BACKGROUND

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 his

[599 F.3d 172]

residency 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...

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