United States v. Black , 773 F.3d 1113 ( 2014 )


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  •                                                                       FILED
    United States Court of Appeals
    Tenth Circuit
    PUBLISH                   December 9, 2014
    Elisabeth A. Shumaker
    UNITED STATES COURT OF APPEALS                  Clerk of Court
    TENTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.                                                     No. 14-1000
    JAY BENJAMIN BLACK,
    Defendant - Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF COLORADO
    (D.C. NO. 1:12-CR-00410-MSK-1)
    Dean A. Strang, StrangBradley, LLC, Madison, Wisconsin (Robin Shellow, The
    Shellow Group, Milwaukee, Wisconsin, on the brief), for Defendant - Appellant.
    Catherine M. Gleeson, Office of the United States Attorney, Denver, Colorado
    (John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special
    Assistant United States Attorney, Denver, Colorado, on the brief), for Plaintiff -
    Appellee.
    Before GORSUCH, SENTELLE, * and MURPHY, Circuit Judges.
    MURPHY, Circuit Judge.
    *
    The Honorable David B. Sentelle, U.S. Circuit Court Judge, D.C. Circuit,
    sitting by designation.
    I. INTRODUCTION/BACKGROUND
    The Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C.
    §§ 16901 to 16991, sets out a “comprehensive national system for the registration
    of” “sex offender[s].” 
    Id. § 16901.
    Notably, however, SORNA excludes from the
    definition of “sex offender” a subclass of individuals who committed sex offenses
    “involving consensual sexual contact.” 
    Id. § 16911(1),
    (5)(C). “An 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.” 
    Id. § 16911(5)(C).
    This appeal presents
    the following question of statutory interpretation: what does it mean, for SORNA
    purposes, for an offender to be “no more than 4 years older than” a victim?
    Jay Black pleaded guilty to one count of sexual abuse of a minor in Indian
    Country, in violation of 18 U.S.C. § 2243(a). The following facts regarding the
    conviction are uncontested: (1) the sex act was consensual; (2) at the time of the
    sex act, Black was 18 and the victim was 14 1; and (3) a comparison of Black’s
    and the victim’s birthdays demonstrated Black was 55 months older than the
    victim. At sentencing, Black claimed he was not required to register as a sex
    offender under SORNA because his conduct fell within the terms of
    § 16911(5)(C). Using what he asserted was the colloquial or ordinary
    1
    That is, in common parlance, Black had not yet completed 19 whole years
    of life and the victim had not yet completed 15 whole years of life.
    -2-
    understanding of age, Black argued the age difference between him and the victim
    must be figured by subtracting the integers representing completed years of life,
    without regard for the number of months or days separating their dates of birth.
    Subtracting the victim’s 14 years of completed life from his 18 years of
    completed life resulted, according to Black, in a 4-year age difference, an age
    difference within the parameters of the exception set out in § 16911(5)(C). The
    district court rejected Black’s assertion and concluded § 16911(5)(C) requires a
    comparison of the birth dates of the offender and victim to determine the relevant
    age difference. Black appeals.
    Joining the only other circuit to consider this question, we conclude “not
    more than 4 years older than the victim” means no more than 1461 days or 48
    months separate the birthdays of the sex offender and the victim. United States v.
    Brown, 
    740 F.3d 145
    , 149 (3d Cir. 2014) (quotation omitted). Because more than
    48 months separate Black’s and the victim’s birthdays, the district court correctly
    ordered Black, as a condition of supervised release, to comply with SORNA’s
    registration provisions. Thus, exercising jurisdiction pursuant to 28 U.S.C. §
    1291 and 18 U.S.C. § 3742(a), this court affirms the order of the district court. 2
    2
    The government asserts Black has waived his right to appeal this issue.
    This court has determined, however, that appeal waivers do not affect our
    constitutional or statutory jurisdiction. United States v. Hahn, 
    359 F.3d 1315
    ,
    1320-24 (10th Cir. 2004) (en banc). Because Black’s SORNA claim fails on the
    merits, this court exercises its discretion to bypass the relatively complex waiver
    issue and resolve Black’s appeal on the merits. See Lemke v. Ryan, 719 F.3d
    (continued...)
    -3-
    II. DISCUSSION
    On appeal, Black asserts the district court erred when it concluded the
    exemption provision set out in § 16911(5)(C) unambiguously requires a
    comparison of the offender’s and victim’s birth dates to determine whether the
    offender is “not more than 4 years older than the victim,” rather than a
    comparison of the number of whole years lived by the offender and victim.
    Alternatively, he asserts § 16911(5)(C) is sufficiently ambiguous so as to trigger
    the applicability of the rule of lenity. Questions of statutory interpretation and
    applicability of the rule of lenity are legal matters reviewed de novo. United
    States v. Handley, 
    678 F.3d 1185
    , 1189 (10th Cir. 2012) (statutory interpretation);
    United States v. Michel, 
    446 F.3d 1122
    , 1135 (10th Cir. 2006) (rule of lenity).
    In addressing the exact same question before this court, the Third Circuit
    held as follows:
    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,” 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
    2
    (...continued)
    1093, 1098-99 (9th Cir. 2013); United States v. Caruthers, 
    458 F.3d 459
    , 472 &
    n.6 (6th Cir. 2006); United States v. Cupit, 
    169 F.3d 536
    , 539 (8th Cir. 1999).
    -4-
    [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 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) . . . . 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.
    . . . 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
    days 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 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 . . . 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. 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
    -5-
    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. That cannot be the law.
    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.” But demanding some precision . . . is more
    sound than the conclusion that no one is “more than 4 years older”
    than someone else unless he is actually five years older.
    
    Brown, 740 F.3d at 149-50
    (quotations, footnotes, and record citations omitted).
    This court concludes the Third Circuit’s analysis is entirely convincing and
    hereby adopts it as our own. We do note, however, an additional compelling
    reason to reject the reading of § 16911(5)(C) advanced by Black. Black’s
    construction of SORNA could have an untoward collateral impact on the
    interpretation of substantive federal criminal provisions. For instance, the statute
    underlying Black’s statutory rape conviction contains an element remarkably
    similar to the language at issue in this case. That is, the federal statutory rape
    provision only applies if the victim is between 12 and 16 and is “at least four
    years younger than the” offender. 18 U.S.C. § 2243(a). Under Black’s
    view—that such provisions must be interpreted consistent with the colloquial
    understanding of whole years of aging—this substantive criminal provision could
    reach defendants who were no more than three years and one day older than a
    -6-
    sexual partner. That is, sex between a victim aged 14 years and 364 days and a
    defendant on the defendant’s eighteenth birthday would fall within the rubric of
    § 2243(a). 3 Thus, while potentially narrowing the class of individuals required to
    register under SORNA, Black’s interpretation of statutory provisions like
    § 16911(5)(C) could substantially broaden the instances of sexual conduct subject
    to substantive criminal penalty. It simply cannot be reasonably argued that
    Congress intended substantive criminal liability to attach to a random and
    somewhat meaningless “whole year” age analysis, rather than a straight-forward
    calculation as to the number of months (or days) that passed between the birth of
    the perpetrator and the birth of the victim.
    Finally, this court’s conclusion that § 16911(5)(C) cannot reasonably be
    read to adopt a whole-year method of comparing the ages of the perpetrator and
    the victim renders the rule of lenity inapplicable. After all, “[t]he simple
    existence of some statutory ambiguity . . . is not sufficient to warrant application
    of that rule, for most statutes are ambiguous to some degree.” Dean v. United
    States, 
    556 U.S. 568
    , 577 (2009) (quotation omitted). Instead, “[t]o invoke the
    3
    There could be similar collateral impacts on other criminal provisions. For
    instance, federal law classifies as first degree murder any killing “ perpetrated as
    part of a pattern or practice of assault or torture against a child or children.”
    18 U.S.C. § 1111(a). A child is “a person who has not attained the age of 18
    years and is . . . at least six years younger than the perpetrator.” 
    Id. § 1111(c)(2).
    Likewise, the federal aggravated sexual abuse statute applies where the victim is
    not yet 16 and “is at least 4 years younger than the” perpetrator. 18 U.S.C.
    § 2241(c).
    -7-
    rule, we must conclude that there is a grievous ambiguity or uncertainty in the
    statute.” 
    Id. (quotation omitted).
    For those reasons set out above, this court has
    no difficulty concluding the type of grievous ambiguity necessary to implicate the
    rule of lenity is not present in this case.
    III. CONCLUSION
    The order of the district court requiring Black to comply with SORNA’s
    registration requirements as a condition of supervised release is hereby
    AFFIRMED.
    -8-