2014 D e c i sion s O p inion s of the U nit e d

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. e du/thir dc ir c uit_2014/66PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

_____________

Nos. 12

- 3952/4085

_____________

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

- 00 174

- 001 ) District Judges: Hon. Joy Flowers Conti

_______________

Submitted Under T hird Circuit LAR 34.1(a)

December 19, 2013

Before: JORDAN , VANASKIE and GREENBERG, Circuit Judges

.

(Filed : January 15, 2014 )

_______________2 Donovan J. Cocas , Esq. Office of United States Attorney
700 Grant Street

- #4 000 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

.

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge

.

Both the government and the defendant, Blake Brown, Jr., appeal an order of the United States Distr ict 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 se q ., 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 of3 SORNA for such individuals to travel in “interstate or foreig n 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 del ineate specific circumstances in which a conviction involving sex w ill 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 m olestation 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 Pe nnsylvania in October 2010. A t t he time
of his arrest, he was staying with his fath er i n 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 SORN A 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).4 register, though he claimed he “did not have the time” to do

so. (PSR ¶ 43.)

Brown pled guilty a s charged , but, when it came time
for sentencing

, the District Court sua spon te 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. Pr obation 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 bef ore us.

3 In withdrawing its prior approval of Brown‟s guilty plea, t he District Court relied on Rule 11(b)(3) of the Federal
Rule s 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 need5 Although t he government and Brown eventually

s tipulated 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 th at 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 th at 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 th e 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 mak ing 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.6 At the same time, t he 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
diffe rence in reference to months

. ” ( Id . at 5.) Because Congress did not specify how “years” were to be calculated

, and because resort to legi slative 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 appeal ed 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 st atute that sets out multiple or inconsistent punishment, should resolve the ambiguity in favor of the more lenient punishment s .”
B LACK ‟ S L AW D ICTIONARY 1449 (9 th ed. 2009).

6 In his cross

- appeal, Brown raises the following additional arguments: (1) th at 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) t hat 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 categorical7 approach in evaluating SORNA predicate offenses; and (7) that Congress violate d 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
alread y paid to t he 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 ol d 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 a nd 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.8 II. D iscussion 7

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 w e 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 def ined within the statute , we construe them “ in accordance with [their] ordinary or natural meaning.” FDIC v. Meyer , 510 U.S. 471, 476 (1994). W e do

not , however, do so blindly.

[F]requently words of general meaning are used
in a statute

... and yet a c onsideration 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 jurisdictio n 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

constr uction de novo .”)9 meaning to the words, makes it unreasonable to believe that the legislator intended to include the partic ular act.

Holy Trinity Church v. United States , 143 U.S. 457, 459 (1892)

. In such cases, resor ting to dictionary definitions may be helpful

. S ee 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 consecuti ve 365

- day period beginning at any point.”). We therefore conclude that the term “ 4 y ears ” is not ambiguous: it is quite precisely 1,46 1 days 8 o r 48 months. While the word “years” on its own or in some colloquial usage could perhaps be thought
ambi guous , 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.10 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.

C onsid ering “years” to mean whole years only, as the District Court suggests, would lead to strange results in the application of SORNA

. T he government rightly notes that using the “„colloquial method‟ of calculating whether an offender was „more than 4 years o lder‟ 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 s exual

cong ress 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, 198 8

– exactly four years an d 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 1 st 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 time s

. 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 his11 The District Court express ed concern that consideri ng “ 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 days 10

– 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

wou ld 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” e xception), 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. F amily Court

, 368 F.3d 263, 269 (3d Cir. 2004) (“ We will not permit our12 “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 ha ve 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 12 6, 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 a bout a statute‟s intended scope

, ” United States v. Doe , 564 F.3d 3 05, 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 113 4, 1139 n.6 (3d Cir. 1997) (quoting United States v. Bass , 404 U.S. 336, 347 (1971)) ( inter n a l 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 hav e 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 hypothetical s produces much bad law” (quoting Marozsan v. United States, 852 F.2d 1469,
149 8 (7th Cir.1988) (Easterbrook, J., dissenting)) (internal quotation marks omitted)).13 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 Supre me 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, Wiscon sin, and
North Carolina have each relie d 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,” U nited States v.
Carr , 25 F.3d 1194, 1214 (3d Cir. 1994) (alt erations 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 preceden t. 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”).14 (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 m ust 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 differe nces ... .”). 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
dismissin g the indictment and direct that the indictment be
reinstated.