United States v. Nichols

Decision Date30 December 2014
Docket NumberNo. 14–3041.,14–3041.
Citation775 F.3d 1225
CourtU.S. Court of Appeals — Tenth Circuit
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Lester Ray NICHOLS, Defendant–Appellant.

775 F.3d 1225

UNITED STATES of America, Plaintiff–Appellee
v.
Lester Ray NICHOLS, Defendant–Appellant.

No. 14–3041.

United States Court of Appeals, Tenth Circuit.

Dec. 30, 2014.


775 F.3d 1227

Timothy J. Henry, Assistant Public Defender (Melody Brannon Evans, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Wichita, KS, for Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka, KS, for Appellee.

Before McHUGH, McKAY, and BALDOCK, Circuit Judges.

McHUGH, Circuit Judge.

I. INTRODUCTION

Lester Nichols is a convicted sex offender who left the United States without updating his status on the federal sex offender registry. He was brought back to the United States and charged with failing to register, in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. § 2250(a). On appeal, he challenges his conviction based on two theories: (1) SORNA's updating requirement does not apply in situations like his where the sex offender moves from a SORNA jurisdiction to a non-SORNA jurisdiction, and (2) SORNA's delegation of authority to the Attorney General to determine SORNA's retroactive application is unconstitutional. We reject both arguments and therefore affirm Mr. Nichols's conviction.

II. BACKGROUND

In 2003, Mr. Nichols was convicted of traveling interstate with the intent to engage in sex with a minor, in violation of 18 U.S.C. § 2423(b). He was sentenced to 120 months imprisonment. Although Mr. Nichols's conviction occurred before SORNA's 2006 enactment, the U.S. Attorney General issued a rule in 2007 extending the requirements of SORNA “to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.” 28 C.F.R. § 72.3. This rule was issued pursuant to the authority Congress delegated to the Attorney General under SORNA. See 42 U.S.C. § 16913(d) (“The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter....”). Mr. Nichols, as a preenactment sex offender, is thus required to comply with SORNA's registration requirements.

By 2012, Mr. Nichols had been released from prison and was placed under federal supervision in the District of Kansas. Up until that time, he had complied with both the Kansas and SORNA sex offender registration requirements. In November 2012, Mr. Nichols took a plane from Kansas City to Manila, Philippines, without updating his sex offender registry. One month later, he was arrested by Philippine law enforcement officers and was turned over to State Department custody for deportation to the United States. Mr. Nichols was charged with and indicted for one count of failure to update a registration as required by SORNA. See 18 U.S.C. § 2250(a).

775 F.3d 1228

Mr. Nichols moved to dismiss the indictment. He argued before the district court that SORNA did not require him to register as a sex offender while he was in the Philippines because, once in the Philippines, he did not reside in a U.S. jurisdiction. Mr. Nichols also contended SORNA's delegation of authority to the Attorney General to determine SORNA's application to preenactment sex offenders like him is unconstitutional.

The district court rejected Mr. Nichols's first argument in light of United States v. Murphy, 664 F.3d 798 (10th Cir.2011), where we held that a defendant violated SORNA when he moved from Utah to Belize without updating his status on the sex offender registry. The district court also rejected Mr. Nichols's nondelegation argument. The court acknowledged the lack of binding Tenth Circuit precedent addressing this issue, but noted our observation in dicta that SORNA's registration provision does not violate the nondelegation doctrine. United States v. Carel, 668 F.3d 1211, 1214 (10th Cir.2011). The district court also looked to United States v. Rickett, 535 Fed.Appx. 668 (10th Cir.2013) (unpublished), wherein we rejected a nondelegation argument under plain error review because, absent controlling precedent, application of SORNA to a preenactment offender was not plainly unconstitutional. Finally, the district court explained that the clear weight of authority from other circuits has rejected nondelegation challenges to 42 U.S.C. § 16913(d). Accordingly, the district court ruled SORNA's delegation of authority under § 16913(d) is not unconstitutional and denied Mr. Nichols's motion to dismiss. Mr. Nichols thereafter entered a conditional guilty plea, reserving the right to appeal both issues. He now does so and we exercise our jurisdiction under 28 U.S.C. § 1291.

III. DISCUSSION

Mr. Nichols appeals both elements of the district court ruling. He first contends SORNA's requirement that an offender keep his registration current does not apply to offenders who change their residence to a non-SORNA jurisdiction. In so arguing, he asks us to overturn our precedent in United States v. Murphy, wherein we held, “a sex offender, upon changing his residence, [must] update his registration in a jurisdiction involved ... even if he did not establish a new residence in a SORNA jurisdiction.” 664 F.3d 798, 803 (10th Cir.2011). Mr. Nichols alternatively argues we should vacate his conviction on the basis that 42 U.S.C. § 16913(d) creates an unconstitutional delegation of authority by permitting the Attorney General to determine SORNA's application to preenactment sex offenders. These issues “involve statutory interpretations of and constitutional challenges to SORNA,” which we review de novo, “interpreting the words of the statute in light of the purposes Congress sought to serve.” United States v. Hinckley, 550 F.3d 926, 928 (10th Cir.2008) (brackets and internal quotation marks omitted), abrogated on other grounds by Reynolds v. Unites States, ––– U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012).

A. Extraterritorial Changes of Residence under SORNA

SORNA requires sex offenders to “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). SORNA defines “jurisdiction” as including U.S. states, territories, and Indian reservations, but not foreign nations. Id. § 16911(10). It defines “resides” as “the location of the individual's

775 F.3d 1229

home or other place where the individual habitually lives.” Id. § 16911(13). When a sex offender has a change of residence, he “keep[s] the registration current” by “not later than 3 business days after each change of ... residence ... appear[ing] in person in at least 1 jurisdiction involved pursuant to subsection (a) of this section and inform[ing] that jurisdiction of all changes in the information required for that offender in the sex offender registry.” Id. § 16913(c). In regard to his residence, the sex offender must provide for the registry “[t]he address of each residence at which the sex offender resides or will reside.” Id. § 16914(a)(3). Mr. Nichols argues the plain language of these SORNA provisions indicates that the requirement to “keep the registration current” does not apply to sex offenders who have a change of residence to a non-SORNA jurisdiction.

We squarely addressed this issue in United States v. Murphy, 664 F.3d 798 (10th Cir.2011). The defendant in Murphy was a registered sex offender who had resided in a correctional facility in Utah, departed from Utah by bus, arrived in California, then took a taxi to Mexico, and ultimately ended up in Belize where he lived for six months. Id. at 799–800. Mr. Murphy was deported to the United States and was charged with and convicted of failing to update his sex offender registry, in violation of 18 U.S.C. § 2250(a). Id. at 800. On appeal, Mr. Murphy challenged his conviction on the basis that he had no obligation to update his registration after he left a SORNA jurisdiction for a non-SORNA jurisdiction. Id.

We affirmed Mr. Murphy's conviction, interpreting SORNA otherwise. We interpreted the phrase “jurisdiction where the offender resides” from § 16913(a) and term “residence” as used in § 16913(c) as two different concepts—the former meaning “the state where the individual keeps his home or habitually lives” and the latter meaning “a specific dwelling place ... where an offender habitually lives.” Id. at 800–801. And we concluded the two terms trigger different obligations: “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.” Id. at 801.

From this interpretation, we drew three conclusions. First, “abandoning one's living place constitutes a change in residence under SORNA.” Id. Second, “[w]hen an offender leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved.” Id. at 803. And third...

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