U.S.A v. Dodge

• Decision Date: 05 March 2010
• Docket Number: No. 08-10802.,08-10802.
• 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

597 F.3d 1347

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.

March 5, 2010.

COPYRIGHT MATERIAL OMITTED

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

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

Steven E. Butler, Richard H. Loftin Deidre L. Colson, United States Attorney's Office, Mobile, AL, for U.S.

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH BLACK, CARNES, BARKETT, HULL MARCUS, WILSON and PRYOR, Circuit

Judges.^*

WILSON, Circuit Judge:

In this appeal we interpret the Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq. which requires that a sex offender register in each jurisdiction in which the offender resides, works, or studies. A "sex offender" is one who has been convicted of a "sex offense." We conclude that SORNA's broad definition of "sex offense" encompasses the conduct that underlies Dodge's conviction, and we therefore affirm the judgment of the district court that requires Dodge to register.

I.

Dodge was indicted on three counts of transferring obscene material to a minor in violation of 18 U.S.C. § 1470.¹ With no plea agreement, Dodge pleaded guilty to Count I, ² which charged that between December 1-13, 2006, the then-thirty-threeyear-old Dodge knowingly transferred obscene matter over the Internet to an individual, less than sixteen years old, who used the screen name "heyshuddp." Specifically, Dodge e-mailed someone he believed to be a thirteen-year-old girl, but who was actually an undercover agent, pictures and links to websites containing pictures of himself fully nude and masturbating. Counts II and III charged similar offenses between October 2006 and January 2007 involving two purportedly underage girls using the screen names "hope_in_bama" and "hello_kitten." Pros-ecutors stated that Counts II and III also encompassed the allegation that Dodge used a web camera to broadcast to the girls live images of himself masturbating.

Dodge's pre-sentence investigation report suggested that the court impose SORNA registration as a condition of supervised release. Dodge objected, arguing that he was not a "sex offender" because his offense was not a "sex offense" as defined by 42 U.S.C. § 16911(5)(A) and (7). Overruling Dodge's objection at sentencing, the district court found that the statute's expanded definition of "sex offense" encompassed Dodge's conduct underlying the conviction. Specifically, the court stated that Dodge's "sitting in front of a computer with a camera pointed at [his] private parts, " while thinking he was talking to a thirteen-year-old girl, must be a "sex offense against a minor" as contemplated by SORNA. (R. at 89.) Accordingly, the court sentenced Dodge to eighteen months of imprisonment followed by a three-year supervised release term, and imposed sex offender registration as a condition of release. Dodge appeals only the portion of his sentence requiring him to register as a Tier I sex offender under SORNA.

"We review the district court's imposition of a special condition of supervised release for abuse of discretion, so long as the objection was preserved for appeal." United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir.2003) (per curiam). We review a district court's interpretation of a statute de novo. United States v. Prosperi, 201 F.3d 1335, 1342 (11th Cir.2000). A district court abuses its discretion if it applies the incorrect legal standard. Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392 (1996), superseded by statute on other grounds as recognized in United States v. Mandhai 375 F.3d 1243, 1249 (11th Cir.2004).

II.

The Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 ("Walsh Act") was enacted on July 27, 2006. Title I of the Act, SORNA 42 U.S.C. §§ 16901-16962, establishes a national sex offender registry law, the purpose of which is "to protect the public from sex offenders and offenders against children." Id. § 16901. SORNA defines a "sex offender" as an "individual who was convicted of a sex offense." Id. § 16911(1). Apart from exceptions not applicable here, "sex offense, " in turn, is either:

(i) a criminal offense that has an element involving a sexual act or sexual contact with another;

(ii) a criminal offense that is a specified offense against a minor;

(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18;

(iv) a military offense specified by the Secretary of Defense under section 115(a)(8)(C)(i) of Public Law 105-119 (10 U.S.C. 951 note); or

(v) an attempt or conspiracy to commit an offense described in clauses (i) through (iv).

Id. § 16911(5)(A). The parties agree that only subsection (ii) could provide a basis to require Dodge to register as a sex offender under SORNA, i.e. only because he was convicted of "a criminal offense that is a specified offense against a minor." Id. Neither the list of federal offenses in (iii) nor any other subpart of subsection (5)(A) encompasses a violation of 18 U.S.C. § 1470, the charge to which Dodge pleaded guilty.

The question before us is whether Dodge's conviction under 18 U.S.C. § 1470 for knowingly transferring obscene material to a person less than sixteen years old makes him a "sex offender" subject to SORNA's registration requirement. This issue is one of first impression. Our analysis proceeds in two parts, and is guided by the applicable provision at 42 U.S.C. § 16911(5)(A)(ii), "a criminal offense that is a specified offense against a minor." First, we will consider whether a violation of 18 U.S.C. § 1470 is "a criminal offense" as defined by SORNA. Second, we will decide whether Dodge's particular conviction for knowingly attempting to transfer obscene material to a minor was "a specified offense against a minor." We conclude that because Dodge's conviction was a "specified offense against a minor, " Dodge committed a "sex offense" and is therefore a "sex offender" for SORNA purposes, subject to its registration requirement.

A.

A conviction under 18 U.S.C § 1470 requires proof that the defendant knowingly transferred or attempted to transfer obscene matter to an individual who has not attained the age of sixteen, with the knowledge that the individual has not attained the age of sixteen. As discussed, Dodge qualifies as a "sex offender" under SORNA if he was convicted of "a criminal offense that is a specified offense against a minor." 42 U.S.C. § 16911(5)(A)(ii). SORNA's subsequent subsections 16911(6) and-(7), ³ respectively, define the phrases "criminal offense" and "specified offense against a minor." Section 16911(6) defines a "criminal offense" as a "[s]tate, local, tribal, foreign,... military,... or other criminal offense." Id. § 16911(6) (emphasis added). Section 16911(7) expands the definition of "specified offense against a minor" to include an offense against a minor that "involves any of the following, " including "[c]riminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct, " and "[a]ny conduct that by its nature is a sex offense against a minor." Id. § 16911(7)(H)-(I) (emphases added).

According to Dodge, a finding that the "other criminal offense" category of § 16911(6) includes a § 1470 violation would have the effect of making surplus-age out of the "[s]tate, local, tribal, foreign, or military offense" language of § 16911(6), as well as the list of federal offenses at § 16911(5)(A)(iii).⁴ Therefore, Dodge contends, the exclusion of 18 U.S.C. § 1470 from the enumerated list of federal offenses in subsection (5)(A)(iii) must categorically exclude a violation of 18 U.S.C. § 1470 from SORNA's entire definition of "sex offense." We disagree.

To determine the meaning of a statute, we look first to the text of the statute itself. United States v. Silva, 443 F.3d 795, 797-98 (11th Cir.2006) (per curiam). If the statutory text is unambiguous, the statute should be enforced as written, and no need exists for further inquiry. Id. at 798. "[W]e should not interpret a statute in a manner inconsistent with the plain language of the statute, unless doing so would lead to an absurd result." Id, If language is ambiguous, legislative history can be helpful to determine congressional intent. See Shotz v. City of Plantation, 344 F.3d 1161, 1167 (11th Cir.2003). "Statutory construction... is a holistic endeavor, " and we cannot read a single word or provision of the statute in isolation. Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 2056, 124 L.Ed.2d 138 (1993) (internal quotation marks omitted); see also Silva, 443 F.3d at 798.

Dodge's reading of the definition of sex offense in SORNA is unduly narrow. Taken as a whole, the statute does not suggest an intent to exclude certain offenses but rather to expand the scope of offenses that meet the statutory criteria.⁵ Nothing in the plain language of the statute suggests that the "other criminal offense" provision of 42 U.S.C. § 16911(6) cannot encompass federal offenses not specifically enumerated in § 16911(5)(A)(iii). Further support for this conclusion appears in the way Congress classifies crimes against minors, as seen in other parts of the criminal code. Dodge's conviction statute, 18 U.S.C § 1470, is an "obscenity statute" included in Chapter 71, "Obscenity, " of Title 18. While Congress does not include Chapter 71 in SORNA's list of federal offenses at 42 U.S.C. § 16911(5)(A)(iii), in the sentencing statute 18 U.S.C. § 3553(b)(2), Congress does include Chapter 71 under the designation "Child crimes and sexual offenses, " which largely tracks SORNA's list of federal offenses. To exclude entirely the obscenity...