United States v. Blake Brown, Jr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

Nos. 12-3952/4085

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UNITED STATES OF AMERICA,

Appellant in No. 12-3952

v.

BLAKE BROWN, JR.,

Appellant in No. 12-4085

_______________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 11-cr-00174-001)

District Judges: Hon. Joy Flowers Conti

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Submitted Under Third Circuit LAR 34.1(a)

December 19, 2013

Before: JORDAN, VANASKIE and GREENBERG, Circuit

Judges.

(Filed: January 15, 2014 )

_______________

Donovan J. Cocas, Esq.

Office of United States Attorney

700 Grant Street - #4000

Pittsburgh, PA 15129

Counsel for the United States of America

Lisa B. Freeland, Esq.

Kimberly R. Brunson, Esq.

Office of Federal Public Defender

1001 Liberty Avenue - #1500

Pittsburgh, PA 15222

Counsel for Blake Brown, Jr.

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Both the government and the defendant, Blake Brown,

Jr., appeal an order of the United States District Court for the

Western District of Pennsylvania dismissing the indictment of

Brown for failing to register as a sex offender. For the

reasons that follow, we will vacate the order and direct that

the indictment be reinstated.

I. Background

The Sex Offender Registration and Notification Act

(“SORNA”), 42 U.S.C. § 16901 et seq., requires individuals

convicted of certain sex crimes to submit identifying

information to state and federal sex offender registries.

§§ 16912(a), 16913–16914, 16919(a). It is a violation of

2

SORNA for such individuals to travel in “interstate or foreign

commerce” and “knowingly fail[] to register or update a

registration.” 18 U.S.C. § 2250(a). While the term “sex

offender” is tautologically defined as someone who has been

convicted of a “sex offense,” 42 U.S.C. § 16911(1), Congress

was careful to delineate specific circumstances in which a

conviction involving sex will not lead to classification as an

offender under SORNA. Among other things,1

[a]n offense involving consensual sexual

conduct is not a sex offense for the purposes of

[SORNA] ... if the victim was at least 13 years

old and the offender was not more than 4 years

older than the victim.

42 U.S.C. § 16911(5)(C) (emphasis added). That exception is

the pivot on which this case turns.

In August 2011, Brown was charged with failing to

register under SORNA based on his 2003 conviction for third

degree lewd molestation in violation of Florida Statute

§ 800.04(5). Although he had previously registered when he

moved from Florida to New York, he failed to register after

he later moved to Pennsylvania in October 2010. At the time

of his arrest, he was staying with his father in McKeesport,

Pennsylvania, and admitted knowing that he needed to

1

The quoted language appears to be limited to minors,

but a separate exception pertains to adults, making an offense

involving consensual sexual conduct a “sex offense” for

purposes of SORNA only if the adult victim was “under the

custodial authority of the offender at the time of the offense.”

42 U.S.C. § 16911(5)(C).

3

register, though he claimed he “did not have the time” to do

so. (PSR ¶ 43.)

Brown pled guilty as charged, but, when it came time

for sentencing, the District Court sua sponte raised various

concerns regarding SORNA‟s applicability. In particular, the

Court expressed doubt that Brown was indeed a “sex

offender,” given that – according to the U.S. Probation

Office‟s Presentence Investigation Report – he was 17 years

old and his victim was 13 years old at the time they engaged

in the consensual sexual contact that was the basis of Brown‟s

2003 conviction.2 As the Court saw it, giving Brown the

benefit of SORNA‟s “not more than 4 years older” exception

was “a question of ... the interests of justice.” (App. at 203.)

The Court therefore decided to withdraw its previous

approval of Brown‟s guilty plea.3

2

The exception set forth in 42 U.S.C. § 16911(5)(C)

requires the offense to be based on a consensual act. The

parties appear to agree that the conduct underlying Brown‟s

2003 conviction was “consensual,” as that term is used in

SORNA. One may, of course, question the meaning of

“consensual” when the word is applied to a 13-year-old‟s

decisions, but that issue is not before us.

3

In withdrawing its prior approval of Brown‟s guilty

plea, the District Court relied on Rule 11(b)(3) of the Federal

Rules of Criminal Procedure. It is debatable whether the

District Court had authority to reject the plea after accepting

it; Rule 11(b)(3) does not address a judge‟s revocation of a

plea acceptance, but case law suggests that a judge can revoke

an acceptance if there is no factual basis for a plea, United

States v. Hecht, 638 F.2d 651, 653 (3d Cir. 1981). We need

4

Although the government and Brown eventually

stipulated that Brown‟s “date of birth was exactly four years

and four months (52 months) prior to the date of birth of the

victim in the offense of Lewd Molestation” (Supp. App. at

50-51), the District Court, in an order dismissing the

indictment,4 held that the exception in 42 U.S.C.

§ 16911(5)(C) is “grievous[ly]” ambiguous as applied to

Brown (App. at 149). According to the Court, a “colloquial”

reading would render Brown eligible for the exception in the

statute since, “[t]he common question, „how old are you?‟ is

colloquially interpreted to mean, „how many complete years

have transpired since the date of your birth?‟” (Id. at 147 &

n.2.) Because Brown was 17 years old and the victim was 13

years old at the time of the incident, the Court reasoned that

Brown could be seen as falling within the exception since he

was not “more than 4 years older than the victim,” but rather

was exactly four years older.

not address the issue, however, because we are vacating the

Court‟s decision on other grounds.

4

Brown twice moved to dismiss the indictment. The

Court rejected the first effort, but appears to have invited the

second. (App. at 151 n.5 (“[T]he government has since

indicated its willingness to stipulate to all facts necessary to

resolve the interpretation of SORNA‟s consensual sexual

conduct exception, which leaves the court more flexibility to

consider a pretrial motion to dismiss without itself finding

facts or making credibility determinations that should be left

to the jury.”).) It is the District Court‟s order responding to

that second motion that we now address.

5

At the same time, the Court acknowledged that Brown

indeed “was more than four years older than the victim

because he was born more than four years before the victim.”

(Id. at 147-48.) Math would therefore seem to dictate that

Brown could not claim the exception, but, the Court said, if

“Congress [had] intended for such a strict measurement of

age to apply (particularly in the context of comparing two

people‟s relative ages), Congress could have defined the

difference in reference to months.” (Id. at 5.) Because

Congress did not specify how “years” were to be calculated,

and because resort to legislative history did not clarify what

was meant by the word “years,” the Court applied the rule of

lenity to dismiss the indictment.5

The government timely appealed the dismissal, and

Brown filed a cross-appeal seeking to preserve a variety of

issues.6

5

The rule of lenity is a doctrine providing “that a

court, in construing an ambiguous criminal statute that sets

out multiple or inconsistent punishment, should resolve the

ambiguity in favor of the more lenient punishments.”

BLACK‟S LAW DICTIONARY 1449 (9th ed. 2009).

6

In his cross-appeal, Brown raises the following

additional arguments: (1) that SORNA encroaches upon

state‟s power and violates the Tenth Amendment; (2) that

Congress exceeded its authority under the Commerce Clause

in enacting SORNA; (3) that application of SORNA to pre-

enactment offenders violates the ex-post facto clause; (4) that

SORNA unconstitutionally infringes on the right to travel; (5)

that prosecution under SORNA violates the Due Process

Clause; (6) that federal courts must apply a categorical

6

approach in evaluating SORNA predicate offenses; and (7)

that Congress violated the non-delegation doctrine by giving

the Attorney General blanket authority to determine the

applicability of SORNA to offenders who were convicted of

sex offenses before SORNA was enacted.

Given the attention we and other circuit courts have

already paid to the first five issues, we do not address them

again here. Brown in fact concedes that our decision in

United States v. Shenandoah, 595 F.3d 151, 158-63 (3d Cir.

2010), abrogated on other grounds by Reynolds v. United

States, 132 S. Ct. 975 (2012), forecloses those arguments. He

raises them only to “preserve[] [them] for further review.”

(Brown‟s Opening Br. at 56-60.)

We do not have to address Brown‟s “categorical

approach” argument, given his stipulation regarding consent

and regarding his age and the age of his victim. It is

nevertheless worth noting that the categorical approach was

created to prevent “sentencing courts from inquiring into the

facts underlying prior convictions, fearing that this would

unleash endless re-litigation of old charges and raise Sixth

Amendment concerns.” United States v. Tucker, 703 F.3d

205, 209 (3d Cir. 2012) (citing Taylor v. United States, 495

U.S. 575, 601-02 (1990)). We are not addressing sentencing

here but a separate crime.

Finally, with respect to the question of whether

Congress violated the non-delegation doctrine, the District

Court did not address non-delegation either in its

memorandum opinion and order denying Brown‟s first

motion to dismiss the indictment or in the later memorandum

opinion and order granting dismissal. We therefore abstain

from ruling on it, so that, on remand, the District Court may

consider the issue in the first instance.

7

II. Discussion7

The dispositive question before us is what is meant by

the word “years” in 42 U.S.C. § 16911(5)(C). The District

Court decided that the use in that statute of the phrase “more

than 4 years older than the victim” is “susceptible to more

than one reasonable interpretation” (App. at 3), but we

disagree.

“[T]he starting point for interpreting a statute is the

language of the statute itself.” Consumer Prod. Safety

Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108 (1980).

When words are not defined within the statute, we construe

them “in accordance with [their] ordinary or natural

meaning.” FDIC v. Meyer, 510 U.S. 471, 476 (1994). We do

not, however, do so blindly.

[F]requently words of general meaning are used

in a statute ... and yet a consideration of the

whole legislation, or of the circumstances

surrounding its enactment, or of the absurd

results which follow from giving such broad

7

The District Court had subject matter jurisdiction

under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28

U.S.C. § 1291. Because the District Court‟s decision turns on

statutory construction, we review the matter de novo.

Samaroo v. Samaroo, 193 F.3d 185, 189 (3d Cir. 1999) (“We

must review legal conclusions and questions of statutory

construction de novo.”)

8

meaning to the words, makes it unreasonable to

believe that the legislator intended to include

the particular act.

Holy Trinity Church v. United States, 143 U.S. 457, 459

(1892). In such cases, resorting to dictionary definitions may

be helpful. See MCI Telecomm. Corp. v. Am. Tel. & Tel. Co.,

512 U.S. 218, 225 (1994) (stating, based on “[v]irtually every

dictionary,” that “„to modify‟ means to change moderately or

in minor fashion”). Ultimately, though, “[a]mbiguity is a

creature not of definitional possibilities but of statutory

context,” Brown v. Gardner, 513 U.S. 115, 118 (1994), so

the touchstone of statutory analysis should, again, be the

statute itself.

As already noted, § 16911(5)(C) provides that an

offense involving consensual sexual conduct is not a sex

offense under SORNA as long as the victim “was at least 13

years old and the offender was not more than 4 years older

than the victim.” 42 U.S.C. § 16911(5)(C). In common

usage, a year means 365 consecutive days (except, of course,

when a leap year adds a day) or 12 months. See, e.g., Black‟s

Law Dictionary 1754 (9th ed. 2009) (“A consecutive 365-day

period beginning at any point.”). We therefore conclude that

the term “4 years” is not ambiguous: it is quite precisely

1,461 days8 or 48 months. While the word “years” on its own

or in some colloquial usage could perhaps be thought

ambiguous, the word is not floating in abstract isolation or

8

Because every fourth year is a leap year, and there

are 366 days in a leap year, there are 365 + 365+ 365 + 366

days, or 1,461 days in a four-year time frame.

9

casual conversation here; it is set in the specific terms of a

specific statute, and it has a discernible meaning in that

context. “[M]ore than 4 years” means anything in excess of

1,461 days.

Considering “years” to mean whole years only, as the

District Court suggests, would lead to strange results in the

application of SORNA. The government rightly notes that

using the “„colloquial method‟ of calculating whether an

offender was „more than 4 years older‟ than his victim would

create alternating windows of time” in which the same

offense involving the same two participants “sometimes

would require registration under SORNA and sometimes

[would] not, depending upon the time of the year their sexual

congress took place.” (Gov‟t‟s Opening Br. at 20.) In other

words, if we take Brown‟s Florida offense as an example and

we were to assume that Brown‟s date of birth was May 1,

1984, and his victim‟s date of birth was September 1, 1988 –

exactly four years and four months later – Brown would only

need to register under SORNA if he had been convicted of

having sexual contact with her at any point between May 1st

through August 31st of any year between 2002 and 2004,

when he was “colloquially” five years older, but he would not

need to register for a conviction involving the same conduct

at other times.9 That cannot be the law.

9

To be specific, a “colloquial” reading of the sort

considered by the District Court creates windows of time in

which Brown sometimes is five years older than the victim

and other times is “not more than four years older”: between

September 1, 2001, and April 30, 2002, Brown would be 17

years old and his victim 13 years old; between May 1, 2002,

and August 31, 2002, Brown would be 18 years old and his

10

The District Court expressed concern that considering

“ 4 years” literally as an accumulation of lesser units of time

could “require a calculation down to the month, day, hour,

minute, or even second in order to calculate the difference in

age between a defendant and victim.” (App. at 5 (footnote

omitted).) But demanding some precision – at least as to

days10 – is more sound than the conclusion that no one is

victim 13 years old; between September 1, 2002, and April

30, 2003, Brown would be 18 years old and his victim 14

years old; between May 1, 2003, and August 31, 2003, Brown

would be 19 years old and his victim 14 years old; between

September 1, 2003, and April 30, 2004, Brown would be 19

years old and his victim 15 years old; and between May 1,

2004, and August 31, 2004, Brown would be 20 years old and

his victim 15 years old.

The overall span of time during which this is relevant

is between September 1, 2001, when the victim turns 13 years

old (triggering the possible application of SORNA‟s “not

more than 4 years older” exception), and August 31, 2004,

just before she turns 16 years old, because the statute under

which Brown was convicted, Florida Statute § 800.04,

criminalizes an act such as Brown‟s only when the victim is

under 16 years of age.

10

It seems highly unlikely that a prosecution will ever

be brought on the basis that someone who is exactly 4 years

older than another by birth-date will be prosecuted under

SORNA on the theory that, by hours or minutes, the offender

was “more than 4 years older.” We are not required to

address extreme hypotheticals. See Poole v. Family Court,

368 F.3d 263, 269 (3d Cir. 2004) (“We will not permit our

11

“more than 4 years older” than someone else unless he is

actually five years older.

Because the words “no more than 4 years older” have

a clearly discernible meaning here, applying the rule of lenity

was not necessary. We have held that the “simple existence

of some statutory ambiguity ... is not sufficient to warrant

application of the rule of lenity, for most statutes are

ambiguous to some degree.” United States v. Kouevi, 698

F.3d 126, 138 (3d Cir. 2012) (quoting Dean v. United States,

556 U.S. 568, 577 (2009)) (internal quotation marks omitted)

superseded on other grounds. Rather, the rule only applies in

those cases “in which a reasonable doubt persists about a

statute‟s intended scope,” United States v. Doe, 564 F.3d 305,

315 (3d Cir. 2009) (internal quotation marks omitted), after

consulting “every thing [sic] from which aid can be derived.”

United States v. Cruz, 106 F.3d 1134, 1139 n.6 (3d Cir. 1997)

(quoting United States v. Bass, 404 U.S. 336, 347 (1971))

(internal quotation marks omitted). The rule is therefore an

interpretative method of “last resort” and “need not be applied

when the intent of Congress is already clear based on an

interpretation of Rule 4(a)(6) to be governed by such an

extreme hypothetical. If at some time in the future we are

presented with such an outrageous case, we are confident that

we have the tools to ensure that the right to appeal is not

defeated.”); see also NLRB v. New Vista Nursing & Rehab.,

719 F.3d 203, 238 (3d Cir. 2013) (recognizing the concern

that “[t]he terror of extreme hypotheticals produces much bad

law” (quoting Marozsan v. United States, 852 F.2d 1469,

1498 (7th Cir.1988) (Easterbrook, J., dissenting)) (internal

quotation marks omitted)).

12

analysis of the plain meaning of the statute.” Valansi v.

Ashcroft, 278 F.3d 203, 214 n.9 (3d Cir. 2002). 11

Though we have not ruled before on the meaning of

“years” in this exact context,12 several state courts have

interpreted how to count “years” when applying sexual

offense statutes. The Connecticut Supreme Court observed

that “common sense dictates that in comparing the relative

ages of individuals, the difference in their ages is determined

by reference to their respective birth dates.” State v. Jason B.,

729 A.2d 760, 767 (Conn. 1999). Florida, Wisconsin, and

North Carolina have each relied on that interpretation to

conclude that the phrase “more than 4 years older” within 42

U.S.C. § 16911(5)(C) or similar statutes means more than

1,461 days older. See State v. Marcel, 67 So.3d 1223, 1225

11

It is true that on one occasion we stated that “the rule

of lenity should be employed to „resolv[e] any ambiguity in

the ambit of [a criminal] statute‟s coverage,” United States v.

Carr, 25 F.3d 1194, 1214 (3d Cir. 1994) (alterations in

original) (citation omitted). That comment, however, cannot

be taken literally, since doing so would be at odds with our

own precedent, as set forth in the cases cited above, and with

Supreme Court precedent. See Chapman v. United States,

500 U.S. 453, 463 (1991) (“The rule of lenity, however, is not

applicable unless there is a „grievous ambiguity or uncertainty

in the language and structure of the Act‟... .”).

12

Cf. Dir., Office of Workers’ Comp. Programs, U.S.

Dep’t of Labor v. Gardner, 882 F.2d 67, 71 (3d Cir. 1989)

(holding that the word “year” in that federal regulation

“means 365 days”).

13

(Fla. Dist. Ct. App. 2011) (“If a defendant is one day past the

four-year eligibility ... [he] clearly is „greater‟ or „of a larger

amount‟ than four years.”); State v. Parmley, 785 N.W.2d

655, 662 (Wis. Ct. App. 2010) (“From these cases we

conclude that to calculate the disparity of ages ... to determine

if an actor is exempt from registering as a sex offender, the

time between the birth dates of the two parties is to be

determined.”); State v. Faulk, 683 S.E.2d 265, 267 (N.C. Ct.

App. 2009) (“Neither our legislature nor this Court deals only

in whole integers of years, and, as such, this argument must

fail. So too does defendant‟s argument that a plain language

analysis of the statute requires this Court to consider the

everyday conversational meaning of age differences... .”).

That conclusion is, we think, entirely correct.

III. Conclusion

Because Brown was, as he has stipulated, more than 4

years older than his victim at the time of the offense giving

rise to his 2003 conviction, we will vacate the order

dismissing the indictment and direct that the indictment be

reinstated.

14