U.S. v. Mi Kyung Byun, 07-10254.

• Decision Date: 01 July 2008
• Docket Number: No. 07-10254.,07-10254.
• Citation: 539 F.3d 982
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. MI KYUNG BYUN, aka Mi Kyung Mechanic, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

539 F.3d 982

UNITED STATES of America, Plaintiff-Appellee, v. MI KYUNG BYUN, aka Mi Kyung Mechanic, Defendant-Appellant.

No. 07-10254.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 26, 2007.

Filed July 1, 2008.

Amended August 14, 2008.

Howard Trapp, Hagatna, Guam, for the defendant-appellant.

Kevin R. Gingras, Washington, DC, for plaintiff-appellee Department of Justice.

Appeal from the District Court of Guam; Francis M. Tydingco-Gatewood, Chief Judge, Presiding. D.C. No. CR-00-00049-JSU.

Before: JOHN R. GIBSON,^* MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

ORDER AND AMENDED OPINION ORDER

The mandate issued on July 24, 2008, is recalled. The opinion filed on July 1, 2008, slip op. at 7929, 530 F.3d 1139, 2008 WL 2579666, is amended as follows:

Slip op. at 7929, caption: Change United States District Court for the District of Guam> to District Court of Guam&gt

Slip op. at 7929, caption: Change John S. Unpingco, District Judge, Presiding> to Francis M. Tydingco-Gatewood, Chief Judge, Presiding&gt

No further petitions shall be entertained. The mandate shall issue forthwith.

OPINION

BERZON, Circuit Judge:

After Mi Kyung Byun pleaded guilty to a violation of 8 U.S.C. § 1328, "importation into the United States of any alien for the purpose of prostitution," the district court determined that she had committed a "sex offense" within the meaning of Section 111 of Title I of the Adam Walsh Child Protection and Safety Act of 2006 ("Act" or "Walsh Act"), Pub.L. No. 109-248, 120 Stat. 587, 591 (codified at 42 U.S.C. § 16911), and is therefore subject to the Act's registration requirements. Byun appeals that determination, maintaining that her offense is not covered by the Act. We conclude that Byun's offense is a "specified offense against a minor" and therefore a "sex offense" within the meaning of the Act.

I.

Mi Kyung Byun and her husband owned and operated a night club in Guam, Club Azabu. At the club, Byun maintained two rooms in which female employees could engage in sexual acts with the club's clients. Byun also arranged for her female staff members to leave the club with clients and have sex with them for a fee.

Byun was indicted on May 31, 2000 on four counts of alien smuggling, including one count of importing aliens into the United States for purposes of prostitution, in violation of 8 U.S.C. § 1328, and one count of transporting a minor in foreign commerce with the intent that the minor engage in prostitution, in violation of 18 U.S.C. § 2423(a). She ultimately pleaded guilty to three counts of alien smuggling in violation of 8 U.S.C. §§ 1324 and 1328, but did not plead guilty to transporting a minor for purposes of prostitution in violation of 18 U.S.C. § 2423(a). In the plea agreement, Byun admitted that she "induced" Youn Be Seo, a citizen of Korea, "to come to Guam by offering to employ [her] at the Club ... intend[ing] that during the course of [her] employment at the Club ... [she] would engage in sexual contact with the Club's customers, and perform sexual acts for money," and acknowledged that "[a]t the time [Byun] solicited Youn Be Seo to come to Guam, and at all times thereafter, [Byun] knew Seo was seventeen years old." At sentencing, the district court sentenced Byun to fifteen months imprisonment and three years of supervised release.

On July 27, 2006, while Byun was on supervised release, Congress passed the Walsh Act. Title I of the Walsh Act, the Sex Offender Registration and Notification Act ("SORNA"), requires every jurisdiction in the United States to maintain a sex offender registry that complies with SORNA's specifications. 42 U.S.C. § 16912.¹ SORNA defines the terms "sex offenders," and "sex offense," mandates that sex offenders register, and divides sex offenders into "tiers," based on the severity of their crime, which determine the details of the registration requirement. § 16911.

In response to the Walsh Act, Byun's probation officer determined that Byun was a tier II sex offender subject to SORNA's registration requirements and provided her an "offender notice and acknowledgment of duty to register as a sex offender." Byun signed the form and registered with the Sex Offender Registry Office the same day. Nine days later she filed a motion requesting that the district court "vacat[e] and set[] aside the determination" of the probation officer, because she "has never been convicted of a sex offense."

The district court denied the motion, holding that Byun had been convicted of a "sex offense" within the meaning of SORNA, is therefore a "sex offender," and is properly classified as a "tier II sex offender." Byun appeals the determination that she is a sex offender for purposes of SORNA.

II.

The Sex Offender Registration and Notification provisions of the Walsh Act are intended to "establish[] a comprehensive national system for the registration" of "sex offenders and offenders against children." § 16901. Section 111 of SORNA identifies those individuals who are subject to the registration requirement. According to section 111, a "sex offender" is "an individual who was convicted of a sex offense." § 16911(1). A sex offense, in turn, is:

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

(ii) a criminal offense that is a specified offense against a minor....²

§ 16911(5)(A). "Specified offense against a minor" is defined in a separate provision:

(7) Expansion of definition of "specified offense against a minor" to include all offenses by child predators

The term "specified offense against a minor" means an offense against a minor that involves any of the following:

(A) An offense (unless committed by a parent or guardian) involving kidnapping.

(B) An offense (unless committed by a parent or guardian) involving false imprisonment.

(C) Solicitation to engage in sexual conduct.

(D) Use in a sexual performance.

(E) Solicitation to practice prostitution.

(F) Video voyeurism as described in [18 U.S.C. § 1801].

(G) Possession, production, or distribution of child pornography.

(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such conduct.

(I) Any conduct that by its nature is a sex offense against a minor.

§ 16911(7).

Section 111 goes on to divide sex offenders into three "tiers," depending on the nature of their offense. Tier II sex offenders — the category that, according to the district court, includes Byun — are, as here pertinent, those

whose offense is punishable by imprisonment for more than 1 year and—

(A) [whose offense] is comparable to or more severe than the following offenses, when committed against a minor, or an attempt or conspiracy to commit such an offense against a minor:

(i) sex trafficking (as described in [18 U.S.C. § 1591³]);

(ii) coercion and enticement (as described in [18 U.S.C. § 2422(b)⁴]);

(iii) transportation with intent to engage in criminal sexual activity (as described in [18 U.S.C. § 2423(a)⁵]);

(iv) abusive sexual contact (as described in [18 U.S.C. § 2244]); [or]

(B) involves —

(i) use of a minor in a sexual performance;

(ii) solicitation of a minor to practice prostitution; or

(iii) production or distribution of child pornography; ...

§ 16911(3).

Sex offenders must "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." § 16913(a). To keep her registration current, an offender must, "after each change of name, residence, employment, or student status," appear in person in one of the jurisdictions in which she is required to register and notify it of the changed information. § 16913(c). In addition, all sex offenders are required to "appear in person" at regular intervals: "each year, if the offender is a tier I sex offender; ... every six months, if the offender is a tier II sex offender; and ... every 3 months, if the offender is a tier III sex offender." § 16916. The duration of the registration requirement varies depending on the tier of the sex offender: tier I sex offenders must comply with the registration requirements for a period of 15 years; tier II sex offenders, for a period of 25 years; and tier III sex offenders, for life. § 16915(a).

The consequences of failing to comply with SORNA's registration requirements are significant. A sex offender may be imprisoned for up to ten years for knowing failure to comply with SORNA's requirements, and an individual convicted of a crime of violence after failing to comply with the registration requirements is subject to a mandatory minimum five-year term of imprisonment. 18 U.S.C. § 2250(a), (c).

III.

The question before us is whether Byun's conviction for importation of an alien for purposes of prostitution, 8 U.S.C. § 1328, makes her a "sex offender" for purposes of SORNA and thus subject to its registration requirements.⁶ We conclude that Byun's conviction under 8 U.S.C. § 1328 — which her plea agreement reveals was committed against a minor — is a "specified offense against a minor" and therefore a sex offense. § 16911(7)(I).

A.

Byun was convicted of a violation of 8 U.S.C. § 1328, which provides, in relevant part, that:

[t]he importation into the United States of any alien for the purposes of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation, shall be fined under Title 18, or imprisoned not more than 10 years, or both.

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