rejecting SORNA challenge based on Kebodeaux concurrence
How later courts described this case
- rejecting SORNA challenge based on Kebodeaux concurrence
Written by the judges who cited it.
The opinion
Case: 15-40370 Document: 00513351183 Page: 1 Date Filed: 01/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-40370 United States Court of Appeals
Fifth Circuit
FILED
UNITED STATES OF AMERICA, January 21, 2016
Lyle W. Cayce
Plaintiff - Appellee Clerk
v.
LARRY WAYNE THOMPSON,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Texas
Before DAVIS, BARKSDALE, and DENNIS, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendant-Appellant Larry Wayne Thompson appeals his conviction for
failure to register as a sex offender. We affirm.
I.
The relevant facts, viewed in the light most favorable to the jury verdict, 1
are as follows:
1 See United States v. Harris, 666 F.3d 905, 907 (5th Cir. 2012) (“All evidence is
reviewed in the light most favorable to the verdict to determine whether a rational trier of
fact could have found that the evidence established [the defendant’s] guilt beyond a
reasonable doubt.” (citing United States v. Peñaloza-Duarte, 473 F.3d 575, 579 (5th Cir.
2006))).
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In 2000, Thompson pleaded guilty to eight counts of possession of child
pornography in federal court in the Northern District of Oklahoma. The court
sentenced Thompson to a term of imprisonment. The court also required
Thompson to register as a sex offender.
After completing his sentence, Thompson registered as a sex offender in
Oklahoma. However, in 2007, Thompson moved from Oklahoma to Corpus
Christi, Texas, without updating his sex offender registration. Accordingly, a
warrant issued for Thompson’s arrest.
The United States located Thompson in Mexico, returned him to the
United States, and indicted him for failing to update his registration.
Thompson again pleaded guilty and served another term of imprisonment.
Once again, the court required Thompson, as a condition of his sentence, to
“register with the sex offender registration agency in any state where the
defendant resides, is employed, carries on a vocation, or is a student, as
directed by the probation officer.”
After completing his second prison sentence, Thompson moved into an
apartment complex in Corpus Christi with a roommate named Matthew Hunt.
Thompson registered as a sex offender in Corpus Christi.
In the summer of 2013, Hunt began making plans to move from Corpus
Christi to McKinney, Texas, where his son lived. Thompson “decided it would
be best for him to come with” Hunt. Thus, after two or three months of
planning, Thompson and Hunt decided to leave Corpus Christi in September
2013.
Thompson rented a U-Haul truck in his own name to accomplish the
move. Notably, Thompson did not purchase a round-trip rental; instead, he
purchased a one-way rental from Corpus Christi to McKinney.
Thompson and Hunt removed the majority of their belongings from their
Corpus Christi apartment and loaded them into the U-Haul truck. They then
2
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left their apartment keys in the complex’s office, drove away, and never
returned to the complex. Neither Thompson nor Hunt left a forwarding address
with the apartment complex. The complex eventually leased Thompson and
Hunt’s former unit to new tenant.
Crucially, Thompson never updated his sex offender registration after
leaving Corpus Christi or arriving in McKinney.
Thompson and Hunt applied for an apartment in McKinney, but when
they arrived in McKinney the apartment was unavailable. Throughout the
month of September, Thompson and Hunt alternated between residing at a
hotel in McKinney and camping in various McKinney parks.
A few days after Thompson and Hunt arrived in McKinney, an
administrative assistant at Thompson’s sex offender treatment center in
Corpus Christi called Thompson to remind him that he had an upcoming
counseling appointment. Thompson replied that “he was not interested” in
attending the therapy appointment and that “he was not going to appear.”
Thompson then hung up the phone. As a result of Thompson’s refusal to comply
with the conditions of his sentence, a warrant issued for his arrest.
Several days later, the City of McKinney’s Parks Department contacted
the city’s police department to report that a U-Haul truck was illegally “parked
off of the pavement on the grass” in a park on the city’s north side. A McKinney
police officer arrived at the scene and encountered Thompson sitting at a
nearby picnic table. The officer ran a background check on Thompson and
discovered that he had previously been convicted of a child pornography offense
in Oklahoma and that he had an outstanding warrant for his arrest. Thompson
told the officer that he had not updated his registration after leaving Corpus
Christi.
A federal grand jury in the Eastern District of Texas issued a one-count
indictment charging Thompson with failure to register as a sex offender as
3
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required by the Sex Offender Registration & Notification Act (“SORNA”). The
case proceeded to trial and the jury found Thompson guilty. Thompson now
appeals.
II.
SORNA’s registration provision, 42 U.S.C. § 16913, requires a convicted
sex offender 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.” 2 “A sex offender shall, not later than 3 business days
after each change of name, residence, employment, or student status, appear
in person . . . and inform that jurisdiction of all changes in the information
required for that offender in the sex offender registry.” 3
SORNA also contains a separate penalty provision, 18 U.S.C. § 2250(a),
which provides:
Whoever—
(1) is required to register under the Sex Offender Registration and
Notification Act;
(2)(A) is a sex offender as defined for the purposes of the Sex
Offender Registration and Notification Act by reason of a
conviction under Federal law (including the Uniform Code of
Military Justice), the law of the District of Columbia, Indian tribal
law, or the law of any territory or possession of the United States;
or
(B) travels in interstate or foreign commerce, or enters or leaves,
or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required
by the Sex Offender Registration and Notification Act;
2 42 U.S.C. § 16913(a).
3 Id. § 16913(c).
4
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shall be fined under this title or imprisoned not more than 10
years, or both.
Thus, “a sex offender whose underlying conviction was obtained pursuant to
state law and who never crosses state lines, international borders, or the
boundaries of Indian country, cannot be criminally liable for failure to comply
with SORNA.” 4 By contrast, “[o]ne convicted of federal sex offenses is liable for
his knowing failure to register or update his registration regardless of whether
he travels in interstate or foreign commerce.” 5
Thompson previously committed a sex offense under federal, not state,
law. 6 He did not travel in interstate commerce; instead, he failed to update his
registration after relocating from one city in Texas to a different city in the
same State. Thus, § 2250(a)(2)(A), but not § 2250(a)(2)(B), criminalizes
Thompson’s failure to update his registration after his intrastate relocation.
III.
Thompson challenges his conviction on several grounds. For the
following reasons, we reject all of Thompson’s challenges.
A.
Thompson first raises an as-applied constitutional challenge to SORNA.
He claims that the Necessary and Proper Clause of the U.S. Constitution 7 does
not authorize Congress to criminalize his “purely intrastate conduct” – namely,
4 United States v. Guzman, 591 F.3d 83, 90 (2d Cir. 2010) (emphasis added). Accord
18 U.S.C. § 2250(a)(2)(B).
5 United States v. Sanders, 622 F.3d 779, 781-82 (7th Cir. 2010) (emphasis added)
(citing 18 U.S.C. § 2250(a)(2)(A)).
6 See 18 U.S.C. § 2252(a)(5)(B) & (b)(2) (Thompson’s offense of conviction).
7 U.S. CONST. art. I, § 8, cl. 18.
5
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relocating from one city in Texas to another city in Texas without updating his
sex offender registration. According to Thompson, Congress may only
criminalize a sex offender’s intrastate conduct if the defendant either (1)
“served in the armed forces” or (2) committed an offense on “federal property.”
Thompson does not fall into either of those categories. Thus, claims Thompson,
the district court should have dismissed the indictment. Our standard of
review is de novo. 8
Thompson’s constitutional challenge is meritless. The Courts of Appeals
have repeatedly upheld SORNA’s registration and penalty provisions under
the Necessary and Proper Clause, 9 even when the defendant neither served in
the military, nor committed an offense or lived on federal property, nor moved
within interstate or foreign commerce. 10
The Tenth Circuit’s decision in United States v. Brune is particularly
illustrative. Brune was previously convicted for possessing child pornography
in violation of 18 U.S.C. § 2252 – just like Thompson. 11 As far as the Tenth
Circuit’s opinion reveals, Brune never served in the military, did not commit a
8 United States v. Ollison, 555 F.3d 152, 160 (5th Cir. 2009) (“We review de novo the
denial of the motion to dismiss the indictment and the underlying constitutional claim.”).
9 See United States v. Kebodeaux, 133 S. Ct. 2496, 2499-2505 (2013); United States v.
Brune, 767 F.3d 1009, 1013-17 (10th Cir.), cert. denied, 135 S. Ct. 1469 (Feb. 23, 2015); United
States v. Coppock, 765 F.3d 921, 922-25 (8th Cir.), cert. denied, 135 S. Ct. 1003 (Jan. 12, 2015);
United States v. Anderson, 771 F.3d 1064 (8th Cir.), cert. denied, 135 S. Ct. 1575 (Mar. 23,
2015) (holding that SORNA’s registration requirement is constitutional under the Necessary
and Proper Clause “even if the constitutionality of § 16913 is doubtful under the Commerce
Clause alone”); United States v. Brunner, 726 F.3d 299, 301-04 (2d Cir. 2013); United States
v. Reyes, 550 F. App’x 201, 201-02 (5th Cir. 2013) (per curiam); United States v. Elk Shoulder,
738 F.3d 948, 949-60 (9th Cir. 2013); United States v. Carel, 668 F.3d 1211, 1212-24 (10th
Cir. 2011); United States v. Yelloweagle, 643 F.3d 1275, 1276-89 (10th Cir. 2011); United
States v. Whaley, 577 F.3d 254, 260 (5th Cir. 2009) (“[T]o the extent that § 16913 applies to
sex offenders remaining intrastate, the Necessary and Proper Clause provides Congress with
the necessary authority.”).
10 See Brune, 767 F.3d at 1013-17.
11 Id. at 1014.
6
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sex offense on federal property, and continually resided within the boundaries
of a single State – just like Thompson. 12 Brune pleaded guilty to failure to
register as a sex offender under SORNA. 13 On appeal, Brune challenged
SORNA’s constitutionality.
The Brune court ruled that “SORNA’s registration requirements cannot
be constitutionally challenged under the Necessary and Proper Clause.” 14 “[I]n
determining whether the Necessary and Proper Clause grants Congress the
legislative authority to enact a particular federal statute, we look to see
whether the statute constitutes a means that is rationally related to the
implementation of a constitutionally enumerated power,” such as the
Commerce Clause. 15 Here, the child pornography statute under which both
Thompson and Brune were originally convicted
plainly withstands constitutional scrutiny as an exercise of
congressional authority under the Commerce Clause to regulate
the interstate trafficking of child pornography. And because the
constitutionality of the underlying statute cannot be reasonably
questioned, SORNA’s registration requirements are a limited and
rational extension of congressional power, as permitted by the
Necessary and Proper Clause. 16
Thus, the Necessary and Proper Clause grants Congress the authority to
criminalize Thompson’s failure to update his registration even though he never
served in the military, committed an offense on federal property, or relocated
to a different state.
12See id.
13Id.
14 Id. at 1017 n.2.
15 United States v. Comstock, 560 U.S. 126, 134 (2010) (citing Sabri v. United States,
541 U.S. 600, 605 (2004)).
16 Brune, 767 F.3d at 1017 (citations omitted).
7
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Thompson’s argument to the contrary is based almost entirely on Chief
Justice Roberts’s concurring opinion in United States v. Kebodeaux, 133 S. Ct.
2496 (2013). In Kebodeaux, a military servicemember had previously been
court-martialed and imprisoned for committing a federal sex offense in
violation of the Uniform Code of Military Justice. 17 Like Thompson, Kebodeaux
subsequently violated SORNA by failing to update his sex offender registration
after moving from one city in Texas to a different city in the same State. 18
Kebodeaux challenged SORNA’s registration provisions on constitutional
grounds. A five-Justice majority upheld the challenged provisions under the
Necessary and Proper Clause and the Military Regulation Clause. 19 The Chief
Justice concurred in the judgment but did not join the majority opinion. The
Chief Justice reasoned that, because Congress does not possess a general
“federal police power,” 20 the mere fact that the defendant had previously
committed a federal sex offense “d[id] not give Congress a freestanding,
independent, and perpetual interest in protecting the public from the convict’s
purely intrastate conduct.” 21 Nevertheless, the Chief Justice voted to uphold
the defendant’s conviction because Congress possessed “the power to regulate
the conduct of members of the military by imposing consequences for their
violations of military law.” 22
No other Justice joined the Chief Justice’s concurrence. 23 Nor was the
Chief Justice’s concurrence necessary to obtain a fifth vote in favor of the
17 Kebodeaux, 133 S. Ct. at 2499, 2502.
18 Id. at 2500.
19 Id. at 2499-2505 (Breyer, J., for the Court).
20 Id. at 2507 (Roberts, C.J., concurring in the judgment).
21 Id. (Roberts, C.J., concurring in the judgment).
22 Id. at 2506 (Roberts, C.J., concurring in the judgment).
23 Justice Alito filed a separate concurrence that echoed some of the Chief Justice’s
concerns, but he did not join the Chief Justice’s opinion. See id. at 2508-09 (Alito, J.,
concurring in the judgment).
8
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majority’s result. 24 As a result, “the majority opinion binds us, and its analysis
does not confine SORNA’s constitutionality to applications involving only the
Military Regulation Clause. Nothing in the majority opinion isolates the
Military Regulation Clause as the sole foundation for congressional authority
in support of SORNA.” 25 Thus, SORNA is constitutional under the Necessary
and Proper Clause, and Thompson’s conviction may stand even though he
never served in the military. 26
B.
Thompson next contends that the evidence the Government presented at
trial was insufficient to sustain his conviction. Thompson believes that a sex
offender need not update his registration if he “merely travels for an extended
period of time without establishing either a new home or a new place to
habitually live.” Because he and Hunt never moved into a new apartment in
McKinney, but instead slept at various hotels and campgrounds around the
McKinney area, Thompson argues that he never exhibited a “settled purpose”
to “habitual[ly] reside[]” in McKinney.
Because Thompson preserved this challenge for appeal by orally moving
for a judgment of acquittal at trial, our standard of review is de novo. 27 “All
evidence is reviewed in the light most favorable to the verdict to determine
whether a rational trier of fact could have found that the evidence established
[Thompson’s] guilt beyond a reasonable doubt.” 28
24Five Justices joined the majority opinion in Kebodeaux: Breyer, Kennedy, Ginsburg,
Sotomayor, and Kagan, JJ.
25 Brune, 767 F.3d at 1016-17 (citations omitted).
26 See id. at 1013-17.
27 Harris, 666 F.3d at 907 (citing Peñaloza-Duarte, 473 F.3d at 579).
28 Id. (citing Peñaloza-Duarte, 473 F.3d at 579).
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Thompson’s argument that an itinerant sex offender may wait to update
his registration until he establishes a new residence is meritless. To the
contrary, “SORNA requires a convicted sex offender to update his registration
information in person upon terminating his current residence with no
intention of returning, even if the sex offender has not yet established a new
residence.” 29 “[A] savvy sex offender” may not “avoid having to update his
SORNA registration” by “mov[ing] to a different city” and then “sleeping in a
different shelter or other location every night.” 30 “[I]f an individual remains
itinerant within a given area,” such as a neighborhood in a particular city,
“then his place of residence should be those areas. In other words, a peripatetic
must keep his registration current with as much detail as to his general
location as possible.” 31 Thus, the fact that Thompson stayed in hotels and parks
instead of establishing a single permanent residence in McKinney does not
relieve him of his registration obligations under SORNA. 32
In an attempt to avoid this result, Thompson maintains that he never
actually abandoned his residence in Corpus Christi. He instead asserts that he
was “merely travel[ing] for an extended period of time.” However, at trial, the
Government introduced the following evidence that Thompson did indeed leave
Corpus Christi with no intention to return:
29 United States v. Van Buren, 599 F.3d 170, 175 (2d Cir. 2010). Accord United States
v. Murphy, 664 F.3d 798, 802 (10th Cir. 2011) (“The permanent abandonment of an abode
constitutes a change of residence, regardless of whether a new residence has been formally
adopted.”).
30 United States v. Voice, 622 F.3d 870, 875 (8th Cir. 2010). Accord Murphy, 664 F.3d
at 802.
31 Murphy, 664 F.3d at 801 n.2.
32 Cf. United States v. Bruffy, 466 F. App’x 239, 244 (4th Cir. 2012) (“To the exclusion
of any other location, Bruffy habitually lived in the Belle Haven area of Fairfax County,
Virginia. Thus, regardless of the ultimate destination that Bruffy may have contemplated
when leaving Florida, a transient person of ordinary intelligence would have recognized after
four weeks of living in and around the Belle Haven area of Fairfax County, Virginia, that he
was habitually living there and was required by SORNA to update his registration
information.”).
10
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• Thompson and Hunt jointly formulated a plan to move to McKinney.
• Thompson and Hunt removed the majority of their belongings from
their Corpus Christi apartment and transported them to McKinney
in the U-Haul truck.
• Thompson did not purchase a round-trip rental for the U-Haul;
instead, he purchased a one-way rental from Corpus Christi to
McKinney in his own name.
• Thompson and Hunt left their apartment keys in the Corpus Christi
complex’s office and never returned to the complex.
• Thompson and Hunt stayed in McKinney for several weeks without
ever returning to Corpus Christi.
• Thompson and Hunt arranged their furniture in the U-Haul “almost
like a living room kind of where you could hang out in the back of the
truck.”
Thus, viewing the evidence in the light most favorable to the verdict, the jury
could reasonably find beyond a reasonable doubt that Thompson abandoned
his Corpus Christi residence to habitually live in McKinney. 33 The jury could
likewise reject Thompson’s assertion that he was merely temporarily
traveling. 34 Thus, the evidence was sufficient to convict Thompson.
C.
Thompson also argues that the district court should have suppressed
certain evidence introduced at trial. As we noted above, this is not the first
time Thompson has been convicted for failing to register as a sex offender
33 See Harris, 666 F.3d at 907 (“All evidence is reviewed in the light most favorable to
the verdict to determine whether a rational trier of fact could have found that the evidence
established [the defendant’s] guilt beyond a reasonable doubt.” (citing Peñaloza-Duarte, 473
F.3d at 579)).
34 See United States v. Forster, 549 F. App’x 757, 761-63 (10th Cir. 2013) (rejecting
similar argument that the defendant was merely “traveling” without abandoning his
residence).
11
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under SORNA. Thompson previously failed to update his registration when he
moved from Oklahoma to Texas in 2011. A warrant issued for his arrest, the
Government located him in Mexico, and the Government brought him back to
the United States. Thompson ultimately pleaded guilty and served a term of
imprisonment for failing to update his registration.
Deputy U.S. Marshal Alfredo Lujan interviewed Thompson immediately
after he arrived in the United States from Mexico (the “2011 Interview”). Over
Thompson’s objection, the district court permitted Lujan to testify about the
2011 Interview at trial. The objected-to portion of the exchange between
Deputy Lujan and Thompson follows:
Q. [Did you] talk to the defendant about requirements for
registration of sex offenders in Texas?
A. We did.
Q. And what did you explain to him as far as the duties for a
sex offender to register in Texas?
A. I explained to him since he was traveling from the State of
Oklahoma to the State of Texas, state law requires – gives him ten
days to notify law enforcement about his new residency for him
being within the State of Texas.
Thompson argues that the district court should have excluded this testimony
under the Miranda doctrine. According to Thompson, (1) Lujan failed to cease
interrogation after Thompson “repeatedly requested counsel” during the 2011
Interview; (2) Lujan “tricke[d]” Thompson into signing a “‘consent form’
immediately after the agent said it was an opt-out form;” and (3) “[t]his trickery
is augmented by the fact that Thompson was 73 years old and had just gotten
off an airplane in handcuffs after having been extradited from Mexico days
12
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earlier and in transit ever since.” Thompson asserts that Lujan’s testimony
prejudiced his “lack of knowledge” defense at trial:
Thompson’s defense was that he was unaware that he had to
register under SORNA even if his ultimate destination and
corresponding new residence were still uncertain. Agent Lujan’s
testimony about having conveyed information imparting this
knowledge (in a situation no less than a conversation expressly
described to the jury as “Mirandized”) was fatal to Thompson’s
defense. 35
“When we review a district court’s denial of a motion to suppress, we
view the facts in the light most favorable to the prevailing party, accepting the
district court’s factual findings unless clearly erroneous and considering all
questions of law de novo.” 36
The testimony to which Thompson objects is not a testimonial statement
of the accused obtained during the course of a custodial interrogation. We
therefore doubt that the Miranda doctrine applies to Deputy Lujan’s
statements to Thompson. 37 But even assuming arguendo that the Miranda
doctrine does apply to Deputy Lujan’s testimony, the district court did not err
by admitting it. The district court held a suppression hearing at which it
watched the tape of the 2011 Interview and heard testimony from Thompson.
The court found that (1) Lujan did not trick Thompson into waiving his
Miranda rights by falsely misrepresenting that Lujan would cease the
35 See United States v. Martinez, 551 F. App’x 232, 233-34 (5th Cir. 2014) (per curiam)
(“A conviction under Section 2250 does not require notice of SORNA but only ‘notice of a duty
to register under state law.’” (quoting Whaley, 577 F.3d at 262)).
36 United States v. Menchaca-Castruita, 587 F.3d 283, 289 (5th Cir. 2009) (citing
United States v. Rico, 51 F.3d 495, 500 (5th Cir. 1995)).
37 See United States v. Bengivenga, 845 F.2d 593, 600 (5th Cir. 1988) (“A violation of
Miranda rules, rules fashioned to secure the Fifth Amendment’s privilege against custodial
interrogation, necessitates only the exclusion of testimonial evidence from the prosecution’s
case in chief.” (emphasis added)).
13
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interrogation if Thompson signed a waiver form; (2) Thompson “did not
unambiguously invoke his right to counsel;” and (3) Thompson’s statements to
Lujan were voluntary notwithstanding Thompson’s age and physical condition.
After reviewing the record and viewing the facts in the light most favorable to
the Government, we conclude that the district court’s findings were not clearly
erroneous. 38
D.
Finally, Thompson raises a number of challenges to the district court’s
jury instructions, which we reproduce here in relevant part:
A sex offender is required to register where he resides, which is the
location of his home or other place where he habitually lives.
“Resides” means the location of an individual’s home or other place
where that individual habitually lives, even if the person has no
home or fixed address anywhere or is homeless.
Places where a person “habitually lives” include places in which
that person lives with some regularity.
Under the Sex Offender Registration and Notification Act, a sex
offender shall, within three business days after each “change of
residence,” register his change of residence with the appropriate
jurisdiction where he now resides.
The permanent abandonment of an abode constitutes a “change of
residence,” regardless of whether a new residence has been
formally adopted.
Thompson objected to the jury instructions and thereby preserved his
challenges for appellate review. “Ordinarily, we review a jury instruction for
abuse of discretion, affording substantial latitude to the district court in
38 See Menchaca-Castruita, 587 F.3d at 289 (citing Rico, 51 F.3d at 500)).
14
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describing the law to the jury.” 39 “Under this standard, we consider whether
the charge, as a whole, was a correct statement of the law and whether it
clearly instructed the jurors as to the principles of the law applicable to the
factual issues confronting them.” 40 “However, when a jury instruction hinges
on a question of statutory construction, our review is de novo.” 41
As explained below, we find no error in the district court’s instructions.
1.
42 U.S.C. § 16911(13) states that “[t]he term ‘resides’ means, with
respect to an individual, the location of the individual’s home or other place
where the individual habitually lives.” Unlike the district court’s jury
instructions, 42 U.S.C. § 16911(13)’s definition of “resides” does not include the
phrase “even if the person has no home or fixed address anywhere or is
homeless.” Thus, the district court provided the jury a definition of “resides”
that went beyond the statutory definition.
Thompson argues that, because the term “resides” is neither “highly
‘technical or specific’” nor “‘outside the common understanding’ of jurors,” the
district court should not have provided the jury a definition of that term that
went beyond the definition provided in 42 U.S.C. § 16911(13). 42 However,
Thompson concedes that this Court’s decision in United States v. Wampler
39 United States v. Williams, 610 F.3d 271, 285 (5th Cir. 2010) (citing United States v.
Santos, 589 F.3d 759, 764 (5th Cir. 2009)).
40 Id. (citing Santos, 589 F.3d at 764) (internal quotation marks and brackets omitted).
41 Id. (citations omitted).
42 See United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988) (“A trial court
need not define specific statutory terms unless they are outside the common understanding
of a juror or are so technical or specific as to require a definition.” (citing United States v.
Johnson, 575 F.2d 1347, 1357-58 (5th Cir. 1978))).
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precludes his challenge. 43 He raises the issue only to preserve it for “en banc
review, or a cert petition, in the future.” Because our Court’s precedent in
Wampler controls, we reject this challenge.
2.
Thompson next challenges the district court’s instruction that “[t]he
permanent abandonment of an abode constitutes a ‘change of residence,’
regardless of whether a new residence has been formally adopted.” Thompson
argues that “one has not changed one’s residence until one has established a
new residence where one resides or will reside.”
This challenge fails as well. As we explained above, a sex offender must
“update his registration information in person upon terminating his current
residence with no intention of returning, even if the sex offender has not yet
established a new residence.” 44 “[A] savvy sex offender” may not “avoid having
to update his SORNA registration” by “mov[ing] to a different city” and then
“sleeping in a different shelter or other location every night.” 45 The jury
instructions quoted directly from one of the leading cases on this issue. 46 As a
result, the instructions accurately stated the applicable law.
3.
43 See 703 F.3d 815, 818 (5th Cir. 2013) (rejecting challenge to jury instruction that
stated: “‘Resides’ means the location of an individual’s home or other place where that
individual habitually lives, even if the person has no home or fixed address in that state or
no home anywhere.”).
44 Van Buren, 599 F.3d at 175.
45 Voice, 622 F.3d at 875. Accord Murphy, 664 F.3d at 802.
46 Compare Murphy, 664 F.3d at 802 (“The permanent abandonment of an abode
constitutes a change of residence, regardless of whether a new residence has been formally
adopted.”) with ROA 197 (“The permanent abandonment of an abode constitutes a ‘change of
residence,’ regardless of whether a new residence has been formally adopted.”).
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Finally, Thompson argues that a sex offender only “habitually lives” in a
place if he lives there for at least thirty days. He bases his argument on the
following excerpt from the Attorney General’s National Guidelines for Sex
Offender Registration and Notification (the “SMART Guidelines”):
“Habitually lives” accordingly should be understood to include
places in which the sex offender lives with some regularity, and
with reference to where the sex offender actually lives, not just in
terms of what he would choose to characterize as his home address
or place of residence for self-interested reasons. The specific
interpretation of this element of “residence” these Guidelines
adopt is that a sex offender habitually lives in the relevant sense
in any place in which the sex offender lives for at least 30 days.
Hence, a sex offender resides in a jurisdiction for purposes of
SORNA if the sex offender has a home in the jurisdiction, or if the
sex offender lives in the jurisdiction for at least 30 days. 47
Thompson resided in McKinney for approximately twenty days before law
enforcement officials arrested him for failing to update his registration.
Because Thompson had not resided in McKinney for thirty days, he argues that
he qualifies for a “safe harbor” under the SMART Guidelines.
Thompson asked the district court to include the above-quoted language
in its jury instruction and argues that the district court erred in declining to
include it. Thompson’s argument fails because it ignores other sections of the
SMART Guidelines. In a provision of the SMART Guidelines that Thompson
neglects to mention or analyze, the Attorney General qualifies the above-
quoted thirty-day residency language as follows:
As to the timing of registration based on changes of residence, the
understanding of “habitually lives” to mean living in a place for at
least 30 days does not mean that the registration of a sex offender
who enters a jurisdiction to reside may be delayed until after he has
47 Office of the Attorney General; The National Guidelines for Sex Offender
Registration and Notification, 73 Fed. Reg. 38030-01, 38062 (July 2, 2008) (hereinafter
“SMART Guidelines”) (emphasis added).
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lived in the jurisdiction for 30 days. Rather, a sex offender who
enters a jurisdiction in order to make his home or habitually live
in the jurisdiction must be required to register within three
business days, as discussed in Part X.A of these Guidelines.
Likewise, a sex offender who changes his place of residence within
a jurisdiction must be required to report the change within three
business days, as discussed in Part X.A. 48
Thus, under the SMART Guidelines, because Thompson abandoned his
residence in one city in Texas and relocated to another city in Texas, Thompson
qualified as “a sex offender who changes his place of residence within a
jurisdiction” – i.e., within the State of Texas. 49 Thompson was therefore
“required to report the change within three business days.” 50 Thompson failed
to do so.
Because Thompson’s proposed instruction omits crucial qualifying
language from the SMART Guidelines, it would have misled the jury regarding
when Thompson was required to update his registration. As a result, the
district court correctly rejected the proposed instruction.
IV.
Because the district court committed no error, we affirm Thompson’s
conviction.
AFFIRMED.
48 SMART Guidelines, at 38062 (emphasis added).
49 Id. SORNA defines “jurisdiction” to mean, inter alia, “[a] State.” 42 U.S.C. §
16911(10)(A).
50 SMART Guidelines, at 38062.
18