United States v. Murphy

Decision Date23 December 2011
Docket NumberNo. 10–4095.,10–4095.
Citation664 F.3d 798
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Kevin Daniel MURPHY, Defendant–Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

OPINION TEXT STARTS HERE

Scott K. Wilson, Assistant Federal Defender (Steven B. Killpack, Utah Federal Defender, with him on the briefs), Utah Federal Defender's Office, Salt Lake City, UT, for Appellant.

Ishan K. Bhabha, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC (Carlie Christensen, United States Attorney, and Karin Fojtik, Assistant United States Attorney, Salt Lake City, UT, Lanny A. Breuer, Assistant Attorney General, Gregory D. Andres, Acting Deputy Assistant Attorney General, and Richard A. Friedman, Appellate Section, Criminal Division, United States Department of Justice, Washington, DC, on the brief), for Appellee.

Before LUCERO, BALDOCK, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

The Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. §§ 16911–29, requires a sex offender to register and keep the registration current in each state where he resides, works, or studies. Sex offenders who change their name, residence, employment, or student status, must appear in person in at least one “jurisdiction involved” to inform the state's authorities of the change.

In this appeal we must determine whether a sex offender violates SORNA by abandoning his residence and moving to a foreign country without notifying the authorities of the home state. We conclude he does. For SORNA purposes, a sex offender continues to reside in a state after a change in residence or employment, both of which trigger reporting obligations, even if the offender eventually leaves the state. Therefore, even if an offender abandons his current residence and job with the intention of moving out of the country, he must update his registration to reflect his new status.

We therefore AFFIRM.

I. Background

Kevin Daniel Murphy is registered as a sex offender in Utah, having been convicted by Utah state courts of aggravated sexual assault and aggravated sexual abuse of a child. Several times since his conviction, he has signed forms acknowledging his duty to notify the authorities upon any change of residence. In 2007, he was paroled from state prison to the Bonneville Community Correction Center in Salt Lake City. While residing at Bonneville, Murphy was allowed to work in the community on the condition of restrictive movement, meaning correctional officers transported him to and from his workplace each day.

Despite these precautions, Murphy fled Bonneville a few months after his arrival. Instead of reporting to his employer, he boarded a bus to California and then took a taxi into Mexico. He ended up in Belize, believing he could escape extradition under that country's laws. After living in Belize for six months under the name Dan Murray, Murphy was arrested for lacking proper documentation. Belize deported Murphy to the United States, where he was returned to Utah.

Murphy was subsequently charged with violating 18 U.S.C. § 2250 by “knowingly fail[ing] ... to update a registration as required by [SORNA].” He waived the right to a jury trial. After a bench trial, the district court convicted Murphy of violating § 2250. The district court held,

because Belize has no sex offender registry, Mr. Murphy had an obligation to update his registration in Utah, the last jurisdiction where he was registered. Section 2250(a) is clear: a sex offender who ‘travels in interstate or foreign commerce’ and knowingly fails to register or update a registration as required by SORNA violates the statute.

R., Vol. 2 at 297. Murphy then filed a motion for post-verdict judgment of acquittal, which the district court denied. The court sentenced Murphy to two years' imprisonment and a life term on supervised release. Murphy timely appealed, and we have jurisdiction under 28 U.S.C. § 1291.

II. Discussion

Murphy contends he did not violate § 2250 because he had no obligation to update his registration after he left Utah. Specifically, Murphy asserts that, after he moved to Belize, he no longer resided in a covered “jurisdiction,” as defined by SORNA. And because SORNA only requires a sex offender to update his registration in a jurisdiction where he lives, works, or studies, Murphy contends the statute no longer applied to him. We agree in part. Although SORNA does not require sex offenders living abroad to continually return to the United States to update their registrations, Murphy violated SORNA by failing to notify Utah of a change of status—specifically, his escape from Bonneville—that occurred while he was still residing in that state.

A. The Sex Offender Registration and Notification Act

SORNA specifies: “A sex offender shall 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....” 42 U.S.C. § 16913(a). It further provides: “A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry....” Id. § 16913(c). SORNA defines “jurisdiction” to include U.S. states and territories but not foreign nations. Id. § 16911(10). Finally, it defines “resides” to mean, “with respect to an individual, the location of the individual's home or other place where the individual habitually lives.” Id. § 16911(13).

Murphy's appeal turns on the meaning of “jurisdiction where the offender resides,” under § 16913(a), and “residence,” under § 16913(c). Most fundamentally, it is important to understand that a “jurisdiction where the offender resides” and a “residence” are two different concepts. Identifying a jurisdiction involved implicates a different inquiry than deciding whether a reporting obligation has arisen. The “jurisdiction where the offender resides” is usually a U.S. state—the state where the individual keeps his home or habitually lives. In contrast, an offender's “residence” is a specific dwelling place—for example, a house, apartment, or even a homeless shelter where an offender habitually lives.1 Both the relevant state jurisdiction and the sex offender's living place are important to the national registration system: the offender's jurisdiction is where he must keep his registration current, while the offender's residence is a specific piece of registry information, a change of which sparks a reporting duty. Under the logic of the statute, the same is also true for employment and student status. Thus, when a sex offender changes or quits a job, or when he finishes school, he has changed his status such that he has a reporting obligation to a jurisdiction involved. His reporting obligation does not depend on whether he remains unemployed, out of school, or leaves the country.

The logic of the statute leads to these conclusions for three reasons. First, the statutory language naturally supports the conclusion that abandoning one's living place constitutes a change in residence under SORNA. When someone changes residences—whether by leaving his home, moving into a new dwelling, becoming homeless, or other means—he has a reporting obligation. So if a Utahn is evicted from his apartment and becomes homeless, he must report the change—even if he has yet to establish a new residence. In fact, § 16913(a) does not say that a sex offender must register in a jurisdiction only if he maintains an unchanging residence.2 Rather, the provision more broadly says that when an offender changes his residence, he must register in the jurisdiction where he resides—which of course exists regardless of whether an offender has established a fixed dwelling.3

At least two other circuits agree with our conclusion that permanently abandoning a dwelling place is a change in residence under SORNA and must be reported to a jurisdiction involved. For example, in United States v. Van Buren, 599 F.3d 170, 175 (2d Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 483, 178 L.Ed.2d 305 (2010), the Second Circuit held SORNA requires a sex offender to update his registration in person when he permanently leaves his residence, even if he has not yet established a new residence. The defendant in that case, who was registered as a sex offender in New York, traveled to his mother's residence in North Carolina without updating his registration. Id. at 171. At trial, the defendant contended an address does not “change” until a new residence is established. Id. at 173. But the court disagreed, holding that permanently terminating a New York residence and moving to North Carolina constituted a change in address, and the defendant was required to update the New York registry. Id. at 174.

The Eighth Circuit endorsed the Second Circuit's interpretation in United States v. Voice, 622 F.3d 870, 875 (8th Cir.2010), cert. denied, ––– U.S. ––––, 131 S.Ct. 1058, 178 L.Ed.2d 875 (2011). There, the defendant had left his residence at a halfway house in Sioux Falls, spent ten days living with an acquaintance in Fort Thomson, and then lived for some time at a nearby, abandoned comfort station, all within the state of South Dakota. Id. at 873. The court determined sufficient evidence existed for a reasonable jury to find the defendant failed to register a change of residence when he “habitually lived” in one or more of those locations. Id. at 874–75. The court also “reject[ed] the suggestion that a savvy sex offender can move to a different city and avoid having to update his SORNA registration by sleeping in a different shelter or other location every night.” Id. at 875.

Van Buren and Voice were correctly decided. The permanent abandonment of an abode constitutes a change of residence, regardless of whether a...

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