U.S. v. Dodge, 08-10802.

• Decision Date: 14 January 2009
• Docket Number: No. 08-10802.,08-10802.
• Citation: 554 F.3d 1357
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matthew Mason DODGE, a.k.a. flow_matt, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

554 F.3d 1357

UNITED STATES of America, Plaintiff-Appellee, v. Matthew Mason DODGE, a.k.a. flow_matt, Defendant-Appellant.

No. 08-10802.

United States Court of Appeals, Eleventh Circuit.

January 14, 2009.

Kristen Gartman Rogers, Peter J. Madden, Carlos Alfredo Williams, Fed. Pub. Defenders, Mobile, AL, for Dodge.

Deidre L. Colson, Richard H. Loftin, Asst. U.S. Atty., Mobile, AL, for U.S.

Appeal from the United States District Court for the Southern District of Alabama.

Before BARKETT and WILSON, Circuit Judges, and POGUE,^* Judge.

PER CURIAM:

After pleading guilty to a violation of 18 U.S.C. § 1470, for transferring obscene material to a minor,¹ Matthew Mason Dodge ("Dodge") appeals from the part of the district court's judgment that requires him to register as a Tier I Sex Offender under the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16911. We reverse. Although Dodge transmitted obscene material to persons he believed to be minors, he did not engage in conduct that constitutes a "sex offense against a minor," 42 U.S.C. § 16911(7)(I) (emphasis added), as we understand that phrase. Although we do not adopt Dodge's construction of SORNA, we conclude that we are unable to distinguish Dodge's behavior from other behavior, involving distributing obscene material, that would support a conviction under 18 U.S.C. § 1470, but would not require Dodge to register as a sex offender. Accordingly, Dodge also cannot be required to register.

Background

Over a period of approximately one year, Matthew Dodge, on a number of occasions, interacted on internet chat-rooms with persons he took to be young girls aged 13-14 years old. On at least three occasions, Dodge either emailed photographs of himself fully nude and/or masturbating or provided a link to such photos. On at least two occasions, Dodge sent video images of himself masturbating or fondling his genitals to individuals he took to be minors below the age of 16.²

Because of this conduct, Dodge was indicted on three counts of knowingly transferring obscene materials to individuals under the age of 16 in violation of 18 U.S.C. § 1470.³ Dodge entered a guilty plea, without a plea agreement, and agreed that the government could prove the alleged facts. The government, by motion, dismissed Counts Two and Three at sentencing, leaving Dodge to be sentenced only for the first count. Dodge was then sentenced to 18 months in prison. At sentencing, the District Court also ordered a three year term of supervised release and ordered Dodge, as a "Tier 1 Sex Offender," to register under SORNA "for up to life." The District Dourt concluded that the expansion of the definition of "sex offense" under 42 U.S.C. § 16911(5)(A)(ii) and (7)(I),⁴ to include any criminal offense that is a specified offense against a minor, where the conduct in question is "by its nature a sex offense against a minor," applied to Dodge's offense, requiring him to register. It is this conclusion that Dodge appeals.

Standard of Review

We review terms of supervised release for abuse of discretion. See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir.2006). We review a district court's interpretation of a statute de novo. United States v. Prosperi, 201 F.3d 1335, 1342 (11th Cir.2000).

Discussion

We begin with relevant provisions of the statute. Specifically, if Dodge is required to register as a sex offender under SORNA it can only be because he was convicted of a "sex offense" that is a "criminal offense that is a specified offense against a minor." 42 U.S.C. § 16911(5)(ii). No other subpart of subsection (5) applies to the charge to which Dodge plead guilty, a violation of 18 U.S.C. § 1470.⁵ Following subsection (5), a "[c]riminal offense" and a "specified offense against a minor" are further defined in 42 U.S.C. § 16911(6) and (7) respectively. We will consider each subsection in turn in order to determine how each definition may apply to Dodge's violation.

First, because 18 U.S.C. § 1470 is not a "State, local, tribal, foreign, or [specified] military offense," a violation of 18 U.S.C. § 1470 is only covered by subsection (6) of § 16911 if it is an "other criminal offense." Claiming that a violation of 18 U.S.C. § 1470 is not an "other criminal offense" for purposes of subsection (6), Dodge argues that federal offenses that qualify as sex offenses are enumerated, or "specified" as a "sex offense," by 42 U.S.C. § 16911(5)(iii), and because 18 U.S.C. § 1470 is not so enumerated, the principle of expressio unius est exlusio alterius requires us to hold that non-enumerated federal crimes, including violations of 18 U.S.C. § 1470, are not "sex offenses" for the purpose of 42 U.S.C. § 16911.⁶ Application of the expressio unius canon, however, would make unclear the meaning or referent in subsection (6) for "other criminal offenses." Nonetheless, Dodge's argument is not without merit, especially in light of our application of expressio unius in United States v. Kinard, 472 F.3d 1294, 1297-98 (11th Cir.2006), where we applied the principle in the context of federal sentence enhancement guidelines, restricting enhancement to the violation of one or more of the relevant enumerated statutes.

Additionally, reading "other criminal offenses" to include federal offenses, such as 18 U.S.C. § 1470, as suggested by the government, would turn the language "State, local, tribal, foreign, or [specified] military offense" into meaningless surplusage thereby further complicating an attempt to provide a correct and coherent interpretation of the provision. For reasons given below, however, we do not need to decide this issue of statutory interpretation because, even if we assume that non-enumerated federal offenses, including violations of 18 U.S.C. § 1470, may qualify as "other criminal offenses," Dodge still is not required to register.⁷

The next step in our analysis comes in the application of subsection (7)(I) of section 16911. Subsection (7) provides an "expanded definition" of "specified crimes against a minor" with subsection (7)(I) being the only subsection (7) provision applicable to Dodge's case. Subsection (7)(I) designates, as a "specified crime against a minor," . . . "[a]ny conduct that by its nature is a sex offense against a minor." Dodge contends that the court should approach this definition in a "categorical" fashion such that only convictions under a statute for which all possible convictions would qualify as a "sex offense against a minor" would require registration. Accordingly, Dodge claims, the court should decline to examine the underlying behavior upon which his conviction is based, but rather determine only whether all convictions of 18 U.S.C. § 1470 would require registration. Thus, Dodge argues, a categorical approach would call only for a comparison of the fact of conviction and the definition of the offense of conviction on the one hand, and the definition set out in (7)(I) on the other.⁸ Because not all convictions of 18 U.S.C. § 1470 would require registration, under a categorical approach, no conviction under 18 U.S.C. § 1470 would require registration.

The government, on the other hand, encourages us to reject a categorical approach here, noting that the language in subsection (7)(I) calls for determining the "conduct" of the defendant in question, not the "conviction," as was the case in Shepard. Id. Such a non-categorical approach was recently used by the 9th Circuit in United States v. Byun, 539 F.3d 982, 992 (9th Cir.2008),⁹ where that Court concluded that, "the best reading of the statutory structure and language is that Congress contemplated a non-categorical approach. . . ."

Nonetheless, we do not have to decide whether or not to take a categorical approach to reading the statute. This is because even if we do not adopt a categorical approach requiring all violations of 18 U.S.C. § 1470 to be sex offenses against a minor in order to require registration, we still must be able to articulate a principled statutory basis for requiring registration for some violations of 18 U.S.C. § 1470 but not for others. Here, even if we agree with the government, and examine Dodge's underlying conduct in this case, we are unable to distinguish Dodge's conduct from conduct that would also support a conviction under 18 U.S.C. § 1470 but which would not require registration under SORNA because such conduct is not "by its nature a sex offense against a minor," as required by subsection (7)(I).

Our inability to find a principled way to distinguish Dodge's actions from other actions that would also support a violation of 18 U.S.C. § 1470, but which clearly are not "by [their] nature a sex offense against a minor," proceeds from a plain language reading of the statutory phrase "sex offense against." Any definition of "against" requires a concept of contact or opposition. American Heritage Dictionary 32 (3d ed.1992). Dodge's actions, offensive and deplorable though they may be, lack any element of an unwanted sexual assault, offense, or other violation that contacts or opposes a minor's rights. Unlike a "flasher," for example, there is no claim here that Dodge invaded the private space of a minor. While such an assault offense or other violation that contacts or opposes a minor's rights may not be necessary elements of a crime which is "by its nature a sex offense against a minor," it would provide a clear basis for concluding that the crime is a "sex offense against a minor," and would, therefore, provide an acceptable or principled statutory rationale for imposition of SORNA's registration requirement. Dodge's actions, however, are not so distinguishable.

Violations of 18 U.S.C. § 1470 include the mere distribution of obscene material. For example, if Dodge, rather than sending photos and video of himself over the internet, had mailed the same materials or distributed hard-copy across state lines to people he knew to be under the age of sixteen, he would have...