# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-3616

___________________________ United States of America,

lllllllllllllllllllll Plaintiff - Appellee ,

v. Robert D. Lunsford,

lllllllllllllllllllll Defendant - Appellant

.

____________ Appeal from United States District Court for the Western District of Missouri - Kansas City

____________ Submitted: April 10, 2013 Filed: August 5, 2013

____________ Before COLLOTON and SHEPHERD, Circuit Judges, and ROSE 1 , District Judge.

____________ COLLOTON, Circuit Judge.

Robert Lunsford, a sex offender subj ect to the requirements of the Sex Offender Registration and Notification Ac t (“SORNA”), entere d a conditional plea of guilty to a charge of failing to update his registration after he moved from Missouri

1 The Honorable Stephanie M. Rose, Un ited States District Judge for the Southern District of Iowa, sitting by designation.to the Philippines. He appeals the district court’s denial of his motion to dismiss the indictment, arguing that SORNA did not re quire him to update his registration in Missouri to reflect his move out of the country. Because the text of SORNA does not extend registration requirements to Lunsford’s situation, we conclude that the motion to dismiss was meritorious, and we therefore reverse.

I.

Because Lunsford sustained convicti ons for sexual abuse in 1990 and 1993, SORNA required him to register as a sex o ffender. In February 2011, Lunsford lived and was registered at an address on Northwest Plaza Drive, Kansas City, in Clay County, Missouri. On May 3, Lunsford boarded a flight from Kansas City to the Philippines on a round-trip ticket, with a retu rn scheduled for May 24. He did not use his return ticket, however, a nd he did not inform the Miss ouri registry of a change of residence. On July 20, law enforcement officers arrested Lunsford in the Philippines. He was eventually deported and sent back to the United States.

A grand jury in Western Missouri charge d Lunsford with one count of failing to update his registration, in violation of 18 U.S.C. § 2250(a). Lunsford moved to dismiss the indictment, arguing that SO RNA did not require him to update his registration when he left the United States . The district court denied the motion, adopting the recommendation of a magistrate judge, and L unsford entered a conditional guilty plea. Lunsford appeals th e district court’s denial of his motion to dismiss.

II.

SORNA requires a sex offende r to “register, and keep the registration current, in each jurisdiction where the offender reside s, where the offender is an employee, and where the offender is a student.” 42 U.S .C. § 16913(a). To “keep the registration

-2-current,” an offender must “not later than 3 business days after each change of . . . residence . . . appear in person in at least 1 jurisdiction involved pursuant to [42 U.S.C. § 16913(a)] and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry.” Id. § 16913(c). The offender must supply, among other things, the addre ss of “each residence at which the sex offender resides or will reside.” Id. § 16914(a)(3). A sex offender violates 18 U.S.C. § 2250(a) if he travels in interstate or foreign commerce and knowingly fails to register or update a registration as required by SORNA.

Lunsford changed his residence when hemoved to the Philippines. A change of residence triggers an obligation on the part of a sex offender to update a “jurisdiction involved” withthe address of his new re sidence. 42 U.S.C. §§ 16913(c); 16914(a)(3). SORNA’s definition of “jurisdiction” excludes foreign countries, id. § 16911(10), so Lunsford was not required to register in the Philippines. The government’s theory is that Lunsford violated SORNA when he did not supply information about his change of residence to the Missouri registry. He was required to do so, however, only if Missouri was a “j urisdiction involved,” within the meaning of SORNA, when he changed his residence.

A “jurisdiction involved” is a jurisdic tion where the offender resides, is an employee, or is a student. Id. § 16913(a), (c). The government does not argue that Lunsford was an employee or a student in Missouri at the relevant time, but contends that Missouri was a “jurisdiction involved” because it was the “jurisdiction where the offender resides.” Id. § 16913(a). SORNA defines “resides” to mean, “with respect to an individual, the location of the individual’s home or other place where the individual habitually lives.” Id. § 16911(13).

The stipulated factual basis for Lunsford ’s guilty plea demonstrates that he did not reside in Missouri when he changed his residence. According to the plea agreement, Lunsford allegedly violatedSORNA between May 3 and July 28, “ after

-3-he traveled in interstate and foreign commerce.” Plea Agreement at 3 (emphasis added). The government does notcontend, for example, th at Lunsford established a new residence in Missouri after he aba ndoned his residence on Northwest Plaza Drive and before he boarded his flight to the Philippines. The plea agreement reflects the understanding of the parties that Lunsford di d not change his resi dence and trigger a reporting obligation until after he left the Un ited States. But after Lunsford left the country, Missouri was not the location of his home or a place where he habitually lived, so Lunsford did not “reside” in Mi ssouri when he changed his residence. See 42 U.S.C. § 16911(13).

The government nonetheless contends that Missouri was a “jurisdiction involved,” because it was the jurisdiction wh ere Lunsford resided until he changed his residence. The National Guidelines for Sex Offender Registration and Notification, which provide guidance to States about SORNA, seem to reflect this understanding of the statute, saying that “[i]f a sex o ffender simply leaves the country and does not inform the jurisdiction or jurisdictions in which he has been registered, then the requirement to keep the registration current will not have been fu lfilled.” 73 Fed. Reg. 38,030, 38,066-67 (July 2, 2008). Neitherthe National Guidelines nor the government’s brief in this case, however, gr apple effectively with the language of the statute on this point, and we conclude that the text forecloses the government’s position. An offender is required to “keep the registration current” in the jurisdiction where he “resides,” 42 U.S.C. § 16913(a), nota jurisdiction where he “resided.” “Resides” is a present-tense verb, and “the present tense generally does not include the past.” United States v. Carr , 130 S. Ct. 2229, 2236 (2010) (citing the Dictionary Act, 1 U.S.C. § 1). There is thus no textual basis for requiring an offender to update his registration in a jurisdiction where he formerly “resided,” and where he is not currently an employee or a student. Missouri was not a “jurisdiction involved” after Lunsford changed his residence to somewher e in the Philippines, so Lunsford was not required by the federal statute to update the Missouri registry.

-4-III.

The government advances three principal arguments against this straightforward application of the statutory text. First, it relies on United States v. Murphy , 664 F.3d 798 (10th Cir. 2011), a case in which a registered sex of fender abandoned his residence in Utah, traveled by bus to Mexi co, and relocated to Belize without updating the Utah registry. Id. at 800. A divided panel affi rmed Murphy’s conviction for violating § 2250(a), concluding that “[w]hen anoffender leaves a residence in a state, and then leaves the state entirely, thatstate remains a jurisdiction involved.” Id. at 803. One court has observed that “Murphy is no model of clarity,” United States v. Lewis , No. 12-10180, 2013 WL 1308512, at *3 (D. Kan. Mar. 28, 2013), and the Tenth Circuit may have concluded that the offender still resided in Utah within the meaning of § 16911(13) when he changed hi s residence and triggered his reporting obligation. See Murphy , 664 F.3d at 803 (“[T]he inten tional abandonment of a home does not in itself change the ‘jurisdiction where the offender resides,’ so long as the offender was still a resident of the state when the ab andonment occurred.”). But insofar as Murphyconcluded that an offender who leaves a domestic jurisdiction for a foreign jurisdiction necessarily must update his registration in the domestic jurisdiction where he formerly resided, werespectfully disagree. According to the statute, a jurisdiction is a “jurisdiction i nvolved” only if the o ffender resides, works, or studies there “after [a] change of . . . residence.” 42 U.S.C. § 16913(a), (c); see Murphy , 664 F.3d at 805-06 (Lucero, J., dissenting). 2

2 The government briefly suggests thatbecause § 2250(a) applies to an individual “who travels in interstate orforeign commerce,” 18 U.S.C. § 2250(a)(2)(B) (emphasis added), the actions of an offe nder who does not update a registry after moving abroad must meet the elements of the offense. The registration requirements, however, are established by § 16913 not § 2250( a). In any event, the reference to foreign commerce in § 2250(a) is not inconsistent with the limitations on a “jurisdiction involved” in § 16913(a). Fo r example, an offender who changes his residence from the United States to a conti guous foreign jurisdiction, but who is still an employee or a student in the United States, must update the registry in the
-5-The government also relies on policy arguments—principally, SORNA’s asserted purpose to establish a comprehens ive national registration system, and the corresponding need to prevent sex offenders from evading registration requirements by adopting an itinerant lifestyle. See United States v. Van Buren , 599 F.3d 170, 174- 75 (2d Cir. 2010). The government contends that if the jurisdiction from which a sex offender departs does not count as a “jurisdiction invol ved,” then transient offenders could avoid registering altogether by con tinuously relocating without establishing a new residence. This court has recognized, however, that transient sex offenders who lack a fixed residence usually will “habitua lly live” somewhere: for example, in “‘a certain part of a city that is the sex offe nder’s habitual locale, a park or spot on the street (or a number of such places) where th e sex offender stations himself during the day or sleeps at night.’” See United States v. Voice , 622 F.3d 870, 875 (8th Cir. 2010) (quoting National Guidelines, 73 Fed. Re g. at 38,055). Therefore, SORNA’s requirement that a sex offender register in the jurisdiction where he “habitually lives” typically should ensure that a sex offe nder who moves from one jurisdiction to another is required to register in the ju risdiction to which he moves, even if he “resides” at a park bench or on a group of street corners. If, despite the foregoing, there is still a hole in the law that permits a particular transient to avoid registration, then it is a product of the statutory text that we cannot repair.

When a sex offender moves abroad, moreover, the government’s policy argument is even more atte nuated. Congress enacted SORNA to “protect the public from sex offenders and offenders against children.” 42 U.S.C. § 16901. The prospect of sex offenders evading their registrati on obligations by moving from jurisdiction to jurisdiction within the United States rais es serious public safety concerns, and the National Guidelines concerning “residence information” and offenders who lack fixed

jurisdiction where he works or studies, af ter having traveled in foreign commerce. Likewise, an offender who l eaves the United States for a period of years and then travels in foreign commerce to reside again in this country is subject to prosecution under § 2250(a) if he fails to register as required.
-6-abodes are designed to address them. See Voice , 622 F.3d at 875; National Guidelines, 73 Fed. Reg. at 38,055. But Congress did not give SORNA extraterritorial effect, see 42 U.S.C. § 16911(10), and when a sex offender leaves the country, he no longer poses an immediate threatto the safety of children in the United States. The government asserts no policy interest under SORNA in monitoring the offender’s subsequent movements among foreign jurisdictions. See National Guidelines, 73 Fed. Reg. at 38,066 (“A sex offender who moves to a foreign country may pass beyond the reach of U.S. jurisdictions and hence may not be subject to any enforceable registration requirement under U.S . law unless and until he or she returns to the United States.”).

Law enforcement officials understandably would like to know if a registered offender has left the country, so the police need not worry that he has gone “missing” in the United States. But with the possibl e exception of an offender destined for an overseas U.S. military base, see id . at 38,067, the policy intere st in learning of foreign travel apparently is to c onserve law enforcement resour ces and to maintain peace of mind rather than to ensure domestic public safety. These are worthy interests that Congress may wish to address, but they ar e not encompassed within the scope of the federal statute as written. Cf . Mo. Rev. Stat. 589.414 (“If a ny person required . . . to register changes their state of residence, the person shall appear in person and shall inform both the chief law enforcement o fficial with whom the person was last registered and the chief law enforcement o fficial of the area in the new state having jurisdiction over the new residence or addre ss within three business days of such new address.”).

The government further contends that circuit precedent supports its interpretation of SORNA. The principal authority cited, United States v. Howell , 552 F.3d 709 (8th Cir. 2009), did not rule on wh ether a registered sex offender may be liable for failing to update his registrati on in a jurisdiction from which he has departed, but rather addressed venue for a prosecution under SORNA. After a

-7-registered sex offender moved from Iowa to Texas, and then failed to update his registration within three days of arriving in Texas, see 42 U.S.C. § 16913(c), the government prosecuted him in Iowa. This c ourt held that venue was proper in Iowa, because an offense begun in one district a nd completed in another may be prosecuted in the district “in which such o ffense was begun.” 18 U.S.C. § 3237(a); see Howell , 552 F.3d at 718. The offender’s act of trav el began in Iowa, where he started his interstate journey to Texas, so the SORNA registration vi olation could be prosecuted in Iowa. Howell , 552 F.3d at 718.

It is true that the Howell opinion—after explaining that venue was proper in Iowa because the SORNA violation “comme nced” there—added that the offender was “required by law” to notify th e Iowa sex offender registry of his move to Texas, and that his failure to notify the Iowa registry “was a material part of the § 2250 violation.” Id . It was undisputed, however, that the offender failed to register in Texas, id. , so a determination whether SORNA re quired him to update the registry in Iowa was not necessary to a conviction or to the court’s decision on venue. The parties did not brief that question, and the court did not address the point after adversarial presentation. Under the circ umstances, the court’s comment that the offender was “required by law” to update the Iowa regi stry after moving to Texas was dicta that is not binding in a fu ture case such as this one that squarely raises the issue under the federal statute. 3 See Cent. Va. Cmty. Coll. v. Katz , 546 U.S. 356, 363 (2006); Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 399 ( 1821) (Marshall, C.J.) (“It is a maxim not to be disregarded, that ge neral expressions, in every opinion, are to be taken in connection with th e case in which those expre ssions are used. If they go

3 The offender in Howell was required by Iowa lawto update the Iowa registry when he moved to Texas. See Iowa Code § 692A.3(4) ( 2007) (“A person required to register under this chapter shall notify the sheriff of the county in which the person is registered, within five days of changing re sidence to a location outside this state, of the new residence address and any cha nges in telephone num ber or name.”), repealed and replaced byIowa Code § 692A.104(5) (2009).
-8-beyond the case, they may be respected, butought not to control the judgment in a subsequent suit when the very poi nt is presented for decision.”); Passmore v. Astrue , 533 F.3d 658, 660-61 (8th Cir. 2008). 4

* * *

For the foregoing reasons, the judgment of th e district court is reversed, and the case is remanded with directions to dismiss the indictment.

______________________________

4 The government also cites a footnote in Voice that expressed agreement with the Second Circuit’s decision to affirm a ju ry instruction “that an updated registration is required if a sex offender l eaves his registered residence with no intent to return.” 622 F.3d at 875 n.2 (citing Van Buren , 599 F.3d at 172-75). Voice observed, however, that “no such instruction wa s requested in this case,” id. , so the comment about Van Buren is plainly dicta. The court had no occasion to consider the application of SORNA to an offender who ab andons a residence and immediately leaves the country.
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