United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-3034

___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

KT Burgee, also known as Kape Teal Burgee

lllllllllllllllllllllDefendant - Appellant

 ____________

Appeal from United States District Court 

for the District of South Dakota - Pierre

 ____________

 Submitted: October 20, 2020

Filed: February 24, 2021

____________

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. 

____________

SMITH, Chief Judge.

KT Burgee pleaded guilty to sexual exploitation of a minor under South Dakota

law. For two years, he regularly registered as a sex offender as required by the federal

Sex Offender Registration and Notification Act (SORNA). Then, he stopped. Burgee

was charged and found guilty of failing to register under SORNA in federal district
court.1

 Burgee’s SORNA obligation arose because he had been convicted of an

offense that involved “conduct that by its nature is a sex offense against a minor.” 34

U.S.C. § 20911(7)(I). On appeal, he urges us to overrule our decision in United States

v. Hill, 820 F.3d 1003 (8th Cir. 2016); reverse the district court for relying on

unreliable evidence; and hold § 20911(7)(I) void for vagueness. We deny each of

these claims for relief and affirm the district court.

I. Background

In June 2014, Burgee pleaded guilty to violating a South Dakota statute titled

“Sexual exploitation of a minor.”2 The factual basis for the plea was this: He “had

contact with a minor,” and “his DNA was found on her neck and . . . in her

underwear.” Mem. in Supp. of Def.’s Mot. to Dismiss Indictment, Ex. C, at 7:5–8,

United States v. Burgee, No. 3:18-cr-30164-RAL-1 (D.S.D. 2019), ECF No. 27-3. At

the plea hearing, Burgee acknowledged that his plea would require him to register as

a sex offender and undergo a psychosexual evaluation.

As required, Burgee registered as a sex offender pursuant to both SORNA and

South Dakota law. But in September 2016, he stopped registering. Two years later,

Burgee was arrested and indicted by a federal grand jury for failing to register under

SORNA, in violation of 18 U.S.C. § 2250(a).

During the federal proceedings, Burgee filed a motion to dismiss the

indictment, arguing three grounds for relief. First, he contended that the district court

1The Honorable Roberto A. Lange, Chief Judge, United States District Court

for the District of South Dakota.

2

In relevant part, the statute provides, “A person is guilty of sexual exploitation

of a minor if the person causes or knowingly permits a minor to engage in an activity

or the simulation of an activity that: (1) Is harmful to minors . . . .” S.D. Codified

Laws § 22-22-24.3.

-2-
should apply the categorical approach to determine whether his state-law conviction

qualified as a sex offense under § 20911(7)(I). Second, he averred that even if the

district court could properly apply the alternative circumstance-specific approach, it

should look only to evidence used for the plea hearing. Lastly, he argued

§ 20911(7)(I) should be declared void for vagueness. The district court denied his

motion as to each of these grounds. The case proceeded to a bench trial where Burgee

renewed his motion to dismiss. It was again denied.

During the trial, the district court heard evidence additional to that relied on by

the state court in Burgee’s plea hearing. Specifically, the government submitted video

of the minor victim’s forensic interview, which was recorded three days after Burgee

committed the offending acts.3 In her interview, the 14-year-old girl recounted how

Burgee attended her mother’s party. During the party, she was sleeping in bed with

her little sister. She awakened with Burgee beside her and kissing her face. Burgee

took off her clothes and raped her. She recalled feeling fluid coming out of her vagina

afterwards. The district court also heard evidence from a nurse practitioner who

evaluated the 14-year-old girl twice within two and a half weeks of the underlying

conduct. The nurse practitioner found that the girl’s injuries were consistent with rape

and took swabs to collect DNA foreign to the girl. And the government presented a

forensic scientist who analyzed semen found on the girl’s underwear. It matched

Burgee’s DNA. The district court also admitted Burgee’s state sex-offender

registration materials in which Burgee acknowledged his duty to register under South

Dakota law.

The district court found that Burgee had been convicted of a qualifying

SORNA sex offense—i.e., “an offense against a minor that involves . . . [a]ny conduct

that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I). Because 

3Burgee waived hearsay and foundation objections to the video interview.

-3-
the qualifying-offense element was the only element of his conviction that Burgee

challenged, the district court found him guilty of failing to register as a sex offender.

II. Discussion

Burgee argues that the district court should be reversed for three reasons. First,

he argues that the district court should have employed the categorical approach, not

the circumstance-specific approach, to determine whether his conviction qualified as

a sex offense under § 20911(7)(I). Next, he contends that, even under the

circumstance-specific approach, the district court should have limited its review to

evidence used at his plea hearing because it was the only reliable evidence. Finally,

Burgee urges us to find § 20911(7)(I) void for vagueness.

SORNA obligates those identified as sex offenders to register and maintain

current information with the appropriate authorities. As relevant here, it defines a sex

offender as a person “convicted of” “a criminal offense that is a specified offense

against a minor.” 34 U.S.C. § 20911(1) & (5)(A)(ii). And a “specified offense against

a minor” includes “an offense against a minor that involves . . . [a]ny conduct that by

its nature is a sex offense against a minor.” Id. § 20911(7)(I). Put simply, a sex

offender under § 20911(7)(I) is a person who was convicted of an offense against a

minor that involved conduct that by its nature is a sex offense against a minor.

A. Circumstance-Specific Approach

When determining whether a defendant’s prior conviction falls within the

ambit of a federal statute, courts apply different approaches depending on the

statutory language.4 This court employs the circumstance-specific approach under

4For example, in Nijhawan v. Holder, the Supreme Court held that a statutory

provision, which read “an offense that . . . involves fraud or deceit in which the loss

to the victim or victims exceeds $10,000,” required the circumstance-specific

approach because “the italicized language” “refers to the particular circumstances in

which an offender committed a (more broadly defined) fraud or deceit crime on a

-4-
§ 20911(7)(I). Under this approach, we examine the specific conduct the defendant

engaged in while committing the underlying crime. Hill, 820 F.3d at 1005. Burgee

urges us to use the categorical approach. Under that approach, courts must determine

if the ordinary case, or generic commission, of the underlying crime falls within the

statute. See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).

In Hill, we held that § 20911(7)(I) “manifestly invites” application of the

circumstance-specific approach. 820 F.3d at 1005. Here, the district court followed

the circumstance-specific approach to determine that Burgee’s underlying conduct

was “conduct that by its nature is a sex offense against a minor.” 34 U.S.C.

§ 20911(7)(I). But Burgee asks us to overrule Hill and instead apply the categorical

approach. According to Burgee, Hill’s holding is suspect because of the subsequent

Supreme Court decisions in Dimaya and Davis. See Gresham v. Swanson, 866 F.3d

853, 855 (8th Cir. 2017) (explaining that a prior panel decision controls “unless an

intervening Supreme Court decision has superseded it”).

Dimaya and Davis, however, are distinguishable. In Dimaya and Davis, the

Supreme Court interpreted 18 U.S.C. §§ 16(b) and 924(c)(3)(B), respectively. Both

statutes define, in relevant part, “crime of violence” as an “offense that . . . by its

nature, involves a substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.” 18 U.S.C. §§ 16(b)

& 924(c)(3)(B). In both cases, the Court applied the categorical approach, relying

heavily on the term offense, which meant “a generic crime,” not “the specific acts in

particular occasion.” 557 U.S. 29, 32 (2009) (alteration in original) (quoting 8 U.S.C.

§ 1101(a)(43)(M)(i)). And, as discussed below, the Supreme Court in United States

v. Davis addressed a statutory provision defining a qualifying offense as one “that is

a felony” and “that by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing the

offense” and stated that “the statutory text commands the categorical approach.” 139

S. Ct. 2319, 2324, 2328 (2019) (quoting 18 U.S.C. § 924(c)(3)(B)).

-5-
which an offender engaged on a specific occasion.” Davis, 139 S. Ct. at 2328

(quoting Nijhawan, 557 U.S. at 33–34); see also Dimaya, 138 S. Ct. at 1217

(explaining that the statutory “text creates no draw: Best read, it demands a

categorical approach”). Thus, it was the statutory text in Davis and Dimaya that

required the Court “to look to the elements and the nature of the offense of

conviction, rather than to the particular facts relating to petitioner’s crime.” Davis,

139 S. Ct. at 2328 (quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)); see also

Dimaya, 138 S. Ct. at 1218 (stating that “the absence of terms alluding to a crime’s

circumstances, or its commission, makes a fact-based interpretation an uncomfortable

fit”).

Hill survives the decisions in Davis and Dimaya. Just as Davis’s and Dimaya’s

holdings are based on statutory text, so too is Hill’s holding. The Hill court held that

because § 20911(7)(I) explicitly references the offense conduct, the statutory “text

evidently commands . . . a circumstance-specific approach.” Hill, 820 F.3d at 1006.

Conduct, after all, is “[t]he way a person acts.” Conduct, The American Heritage

Dictionary of the English Language (5th ed. 2011). Thus, Hill explained that

arguments for a categorical approach “simply founder[] on the plain words of the

statute.” Hill, 820 F.3d at 1005. In fact, the Hill court found the text so clear that it

declined to give deference to the Attorney General’s regulation that indicated the

categorical approach should apply to the statute. Id. at 1006. Hill’s precedential value

has not been altered, and it forecloses Burgee’s argument.

B. Reliable Evidence

Burgee also challenges the district court’s reliance on evidence that was not

used during his plea hearing. According to Burgee, district courts employing the

circumstance-specific approach should only consider the “facts the defendant

admitted or was convicted of as shown by the prior judicial record.” Appellant’s Br.

at 15–16. The relevant documents under his approach would be “the statutory

subdivision of conviction, the charging instrument (insofar as it tracks the actual

-6-
conviction, as here), the judgment of conviction, and—most crucial—the plea

colloquy and factual basis.” Appellant’s Reply Br. at 7 n.6.

Again, Hill resolves Burgee’s issue. In Hill we explicitly declined to limit

district courts’ review under § 20911(7)(I) to specific documents, like those the

Supreme Court had laid out in Shepard v. United States, 544 U.S. 13 (2005). 820 F.3d

at 1005. In Shepard, the Supreme Court held that when sentencing courts apply the

categorical approach, they are “generally limited to examining the statutory

definition, charging document, written plea agreement, transcript of plea colloquy,

and any explicit factual finding by the trial judge to which the defendant assented.”

544 U.S. at 16. The Shepard Court explained that a sentencing court could not delve

beyond the facts the defendant was convicted of to “make a disputed finding of fact”

because the Constitution “guarantee[s] a jury’s finding of any disputed fact essential

to increase the ceiling of a potential sentence.” Id. at 25.

In Hill, because we did not apply the categorical approach, our course tacked

differently. Instead of limiting district courts to specific documents, we held that they

may “consider any reliable evidence.” 820 F.3d at 1005. This does not run afoul of

Shepard because the constitutional evidentiary concerns that arise during factfinding

at sentencing are not present at the guilt phase of a trial. Under Shepard, a sentencing

court cannot engage in factfinding because there is no jury present to determine the

facts. Shepard, 544 U.S. at 25 (stating that “the Sixth and Fourteenth Amendments

. . . guarantee a jury’s finding of any disputed fact essential to increase the ceiling of

a potential sentence”). Under Hill, defendants get a trial and thus have the right to a

jury. This is just what the Sixth Amendment contemplates: “[A] jury—not a

sentencing court—will find such facts, unanimously and beyond a reasonable doubt.”

Descamps v. United States, 570 U.S. 254, 269 (2013). Burgee got just such a trial.

The court conducted a trial to determine the facts of Burgee’s offense conduct. The

government had to prove the facts beyond a reasonable doubt, and Burgee had the

option to exercise his right to a jury trial. He chose not to.

-7-
When determining whether a defendant’s prior offense involves “conduct that

by its nature is a sex offense against a minor,” a district court may admit any reliable

evidence. Hill, 820 F.3d at 1005. Reliable evidence is simply evidence that is

trustworthy enough to be admissible under the rules of evidence. Cf. Kuhn v. Wyeth,

Inc., 686 F.3d 618, 625 (8th Cir. 2012) (“The Supreme Court explained that

evidentiary reliability means trustworthiness.”); see also United States v. Sutton, 916

F.3d 1134, 1140 (8th Cir. 2019) (holding that the challenged hearsay was “not

reliable” because the “witnesses were at times admittedly untruthful, had accounts

that were internally inconsistent and inconsistent with one another, and demonstrated

motives to minimize their own involvement in the assault”). District courts regularly

perform factfinding and are well equipped to assess evidence admissibility. The

district court did so here. Burgee does not challenge the district court’s inclusion of

any specific piece of evidence, so our inquiry is at an end.

C. Vagueness

Finally, Burgee challenges § 20911(7)(I) as void for vagueness. We review

void-for-vagueness challenges de novo. United States v. Buie, 946 F.3d 443, 445 (8th

Cir. 2019).

When reviewing for vagueness, we first determine if a statute is vague as

applied to the defendant’s conduct, and only if it is will we consider whether a statute

is facially unconstitutional. United States v. Bramer, 832 F.3d 908, 909–10 (8th Cir.

2016). This is because “a ‘plaintiff who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as applied to the conduct of

others.’” Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 958 (8th Cir. 2019)

(quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010)). Thus, if “the

statute gave adequate warning, under [the defendant’s] specific set of facts, that the

defendant’s behavior was a criminal offense,” then the statute is not vague. United

States v. Palmer, 917 F.3d 1035, 1038–39 (8th Cir. 2019) (quoting United States v.

Washam, 312 F.3d 926, 931 (8th Cir. 2002)).

-8-
As we have explained, the district court’s factual findings were proper.

Burgee’s actions with the 14-year-old victim of his offense constituted “conduct that

by its nature is a sex offense against a minor” under § 20911(7)(I). Burgee failed to

register as a sex offender under SORNA and South Dakota law for two years. His

conduct was clearly proscribed. Section 20911(7)(I) is thus not void for vagueness

as applied to Burgee.

III. Conclusion

We follow the precedent established in Hill and employ the circumstancespecific approach to the application of § 20911(7)(I). The district court used reliable

evidence in finding the requisite facts by putting the government’s proof through the

rigors of the admissibility standards of the rules of evidence in a contested hearing.

We also conclude that § 20911(7)(I) is not void for vagueness as applied to Burgee.

Accordingly, we affirm.

______________________________

-9-