United States v. Hill

• Citation: 820 F.3d 1003
• Decision Date: 29 April 2016
• Docket Number: No. 15–3193.,15–3193.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. John Oliver HILL, also known as John Benson, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

820 F.3d 1003

UNITED STATES of America, Plaintiff–Appellee
v.
John Oliver HILL, also known as John Benson, Defendant–Appellant.

No. 15–3193.

United States Court of Appeals, Eighth Circuit.

Submitted: March 18, 2016.
Filed: April 29, 2016.
Rehearing Denied June 14, 2016.

820 F.3d 1004

Ashleigh R. Buckley, AUSA, argued, Fort Smith, AR, for Plaintiff–Appellee.

Christopher Aaron Holt, AFPD, argued, Jose Alfaro, AFPD and Anna Marie Williams, AFPD, on the brief, Fayetteville, AR, for Defendant–Appellant.

Before WOLLMAN, ARNOLD, and SHEPHERD, Circuit Judges.

ARNOLD, Circuit Judge.

After John Hill was indicted for failing to register as a sex offender, see 18 U.S.C. § 2250, he moved to dismiss the indictment because the statute under which he was indicted was unconstitutional and because he was not a “sex offender” within its meaning. When the district court¹ denied the motion, Hill pleaded guilty, reserving his right to appeal the denial, and this appeal ensued.

Hill moved from South Carolina to Arkansas after he pleaded guilty in a South Carolina state court to a charge of “wilfully, maliciously, and indecently expos[ing] his person in a public place, on property of others, or to the view of any person on a street or highway.” See S.C.Code Ann. § 16–15–130(A)(1). The state court ordered Hill to register in both sex-offender and child-abuse registries, which he did. Some years thereafter, Congress enacted the Sex Offender Registration and Notification Act (SORNA) “to protect the public from sex offenders and offenders against children,” 42 U.S.C. § 16901, and to make more uniform and effective the patchwork of sex-offender registries throughout the United States. Reynolds v. United States, –––U.S. ––––, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012). Congress gave SORNA teeth by criminalizing a sex offender's knowing failure to register or update certain information. See 18 U.S.C. § 2250(a). As relevant here, SORNA requires sex offenders to register in jurisdictions where they reside and to update their information within three business days after changing residence. 42 U.S.C. § 16913(a), (c). Hill did not update his information for several months after moving to Arkansas, prompting the government's indictment.

820 F.3d 1005

Hill maintains, first, that the district court should have dismissed the indictment because SORNA violates the non-delegation doctrine and exceeds Congress's power under the Commerce Clause. As Hill concedes, however, circuit precedent forecloses these arguments. See United States v. Manning, 786 F.3d 684, 685–86 (8th Cir.2015).

Hill's more serious contention is that the district court should have dismissed the indictment because his conviction for indecent exposure did not trigger SORNA's registration requirements since he is not demonstrably a “sex offender.” SORNA defines a “sex offender” as “an individual who was convicted of a sex offense.” 42 U.S.C. § 16911(1). In turn, as relevant, a “sex offense” includes “a criminal offense that is a specified offense against a minor.” 42 U.S.C. § 16911(5)(A)(ii). A “specified offense against a minor” includes “conduct that by its nature is a sex offense against a minor.” 42 U.S.C. § 16911(7)(I).

The question in this case boils down to whether Hill's prior offense involved “conduct that by its nature is a sex offense against a minor.” Hill argues that courts should look simply at the statute underlying his conviction to determine whether its elements show categorically that it is a sex offense against a minor. He insists that we could not look at the facts underlying his conviction but only at the crime's statutory definition. See Ortiz v. Lynch, 796 F.3d 932, 935 (8th Cir.2015). That would require us to presume that Hill's conviction rested upon nothing more than the least of the acts criminalized as “indecent exposure,” see id., which the government presumably concedes would not be a “sex offense.”

The government contends, however, that we should apply a circumstance-specific approach in determining whether Hill's conviction was for a “sex offense.” See Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). When doing that, we would examine the “particular circumstances in which an offender committed the crime on...