2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-15-2014

USA v. Blake Brown, Jr.

Precedential or Non-Precedential: Precedential

Docket 12-3952

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"USA v. Blake Brown, Jr." (2014). 2014 Decisions. Paper 66.

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PRECEDENTIAL

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-00174-001)

District Judges: Hon. Joy Flowers Conti

_______________

Submitted Under Third 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 - #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.

_______________

OPINION OF THE COURT

_______________

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 
3

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). 
4

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 
5

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,4held 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. 
6

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 preenactment 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 
7

 

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. 
8

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.”) 
9

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 days8or 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. 
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. 

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 
11

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 
12

“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)). 
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 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”). 
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 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.