United States v. Bridges, No. 13-4067 (4th Cir. 2014)
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Defendant moved to dismiss an indictment charging him with one count of traveling in interstate commerce and knowingly failing to update his sex offender registration in violation of 18 U.S.C. 2250. Defendant argued that his plea of nolo contendere to attempted sexual battery in Florida state court did not qualify as a conviction within the meaning of the Sex Offender Registration and Notification Act (SORNA), 42 U.S.C. 16911 et seq. The court concluded that the district court correctly found defendant's plea of nolo contendere with adjudication withheld constituted a conviction for the purposes of SORNA because it resulted in a penal consequence.
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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4067 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM DAVID BRIDGES, a/k/a William Davis Bridges, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, District Judge. (2:12-cr-00022-JPJ-PMS-1) Argued: December 11, 2013 Decided: January 27, 2014 Before WILKINSON, DIAZ, and THACKER, Circuit Judges. Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Wilkinson and Judge Diaz joined. ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee. ON BRIEF: Larry W. Shelton, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. THACKER, Circuit Judge: A federal grand jury indicted Appellant William David Bridges ( Appellant ) on one count of traveling in interstate commerce and knowingly failing to update his registration in violation of 18 U.S.C. § 2250. to dismiss the indictment, arguing that sex offender Appellant moved his plea of nolo contendere to attempted sexual battery in Florida state court, in which adjudication was withheld, does not qualify as a conviction within the meaning of the Sex Offender Registration and Notification Act ( SORNA ). motion, and Appellant entered The district court denied the a conditional plea of guilty, reserving only his right to appeal the district court s denial of [his] Motion to Dismiss the Indictment. J.A. 58. 1 We conclude the district court correctly found Appellant s plea of nolo contendere with adjudication withheld constitutes a conviction for the purposes of SORNA because it resulted in a penal consequence. Consequently, we affirm. I. On February 17, 1999, Appellant entered a plea of nolo contendere in Florida state court to a charge of Attempted Sexual Battery upon a Child under 16 Years of Age, in violation 1 Citations to the J.A. refer to the Joint Appendix filed by the parties in this appeal. 2 of Fla. Stat. § 800.04(3) (1996) (amended 1999). 2 That same day, the Florida state court entered a written judgment in the case, ordering that ADJUDICATION OF GUILT BE WITHHELD. J.A. 15. The order directed Appellant to pay court costs and serve two years of probation, which may terminate upon entry into the [United States] Army. Id. at 18. Appellant also received credit for three days served in jail. As a result of this judgment, Appellant was required to register as a sex offender under Florida law. § 943.0435. See Fla. Stat. On September 30, 2000, he was arrested by Florida authorities for failure to register. After entering a plea of nolo contendere in Florida state court, Appellant received a one-year sentence of probation. his probation because he The state court later revoked failed to report to his probation 2 The version of the statute in effect at the time Appellant s offense conduct provided, in pertinent part: of A person who: . . . (3) Commits an act defined as sexual battery under s. 794.011(1)(h) upon any child under the age of 16 years . . . commits a felony of the second degree . . . . Neither the victim s lack of chastity nor the victim s consent is a defense to the crime proscribed by this section. Fla. Stat. § 800.04(3) (1996). An act of sexual battery, in turn, is defined as oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Fla. Stat. § 794.011(1)(h) (1996). 3 officer and, on September 26, 2001, sentenced him to 68 days in custody. Appellant registered as a moved sex to Virginia offender. in However, on 2010, where August 2, he 2011, Virginia authorities discovered Appellant no longer lived at his reported address in Weber City, Virginia, and he had not updated his registration with a new address. He was ultimately located at his new residence in Gaylord, Michigan, where he had also failed to register as a sex offender. On July 23, 2012, a federal grand jury in the Western District of Virginia returned a single-count indictment charging Appellant with traveling in interstate commerce and knowingly failing to update his sex offender registration, in violation of 18 U.S.C. § 2250. On October 10, 2012, Appellant filed a motion to dismiss the indictment, arguing only that [b]ecause [he] entered a plea of nolo contendere and was not adjudged guilty by the state of Florida of a sex offense, he has never been convicted of a sex offense for the purposes of the federal registration requirements. Appellant s motion, J.A. 12. concluding that The district court denied his nolo contendere plea did indeed qualify as a conviction under SORNA. Shortly after the district court issued its ruling, Appellant entered a conditional guilty plea pursuant to Fed. R. Crim. P. 11(a)(2). Pursuant to 4 his written plea agreement, Appellant expressly waive[d] his right to appeal, with the sole exception of the right to appeal the Court s denial of [his] Motion supplied). to Dismiss the Indictment. J.A. 58 (emphasis Appellant now challenges the district court s denial of his motion to dismiss. 3 II. Where, as here, a district court s denial of a motion to dismiss an indictment depends solely on a question of law, we review the district court s ruling de novo. 3 See United States Appellant attempts to raise one additional argument that is clearly outside the scope of the ruling he is entitled to challenge as part of his conditional guilty plea. Specifically, he contends the district court erred in its construction of the definition of sex offense under SORNA because, applying the modified categorical approach to his attempted sexual battery conviction, the Government cannot prove there was at least a four-year age differential between himself and his victim so as to avoid the consensual sex exception to the definition of sex offense contained in 42 U.S.C. § 16911(5)(C). Appellant s Br. 20. The record, however, is unambiguous -- the district court did not construe the definition of sex offense, and Appellant never sought the same. Although we question Appellant s candor in this regard, we will assume he contends the district court erred by failing to sua sponte dismiss the indictment on the grounds articulated above. Inasmuch as Appellant clearly and unequivocally waived the right to appeal any and all other issues in this matter save the district court s ruling on his motion to dismiss, J.A. 58, we conclude this issue - however framed -- has been affirmatively waived, and we will not entertain it further. Cf. United States v. Bundy, 392 F.3d 641, 650 n.3 (4th Cir. 2004) ( Where a defendant who pled guilty presents on appeal an issue that he did not even attempt to preserve by means of a conditional plea, we decline to entertain the appeal on the ground that the defendant s unconditional plea waived that issue altogether. (emphasis omitted)). 5 v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (citing United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993)). III. Congress enacted SORNA [i]n order to protect the public from sex offenders and offenders against children, and in response to the vicious attacks by violent predators against seventeen named victims of sex crimes. order to address the significant 42 U.S.C. § 16901. number of missing In sex offenders, see H.R. Rep. No. 109 218, pt. 1, at 26 (2005), SORNA establishes a comprehensive national system registration of [sex] offenders, 42 U.S.C. § 16901. requires a sex offender, defined as an for the SORNA thus individual who was convicted of a sex offense, id. § 16911(1) (emphasis supplied), to register in each jurisdiction where he resides, id. § 16913. This requirement is enforced through 18 U.S.C. § 2250, which imposes criminal penalties on persons who, by virtue of their state convictions, are required to register as sex offenders under SORNA and knowingly fail to do so after traveling in interstate commerce. The issue in this case is whether Appellant s nolo contendere plea to a Florida attempted sexual battery charge, in which adjudication was withheld, qualifies within the meaning of 42 U.S.C. § 16911(1). 6 as a conviction We begin with the undisputed premise that federal law, rather than state law, controls the question of what constitutes a conviction under SORNA. 119 See Dickerson v. New Banner Inst., Inc., 460 U.S. 103, (1983) ( [I]n the absence of a plain indication to the contrary, . . . it is to be assumed when Congress enacts a statute that dependent on it does state not intend law. to (quotation make its marks application and citation omitted)), superseded by statute on other grounds, 18 U.S.C. § 921(a)(20). Turning to the plain language of SORNA itself, we observe Congress that undefined 4 and left expressly the statutory term granted authority to convicted the Attorney General to issue guidelines and regulations to interpret and implement [SORNA]. 42 U.S.C. § 16912(b). The Attorney General, consistent with this grant of authority and following notice-and-comment procedures, has promulgated comprehensive guidelines that illuminate the meaning of the term. National Guidelines Fed. for Reg. Sex Offender 38,030 Registration 2, 2008) and Notification, 73 Guidelines ). These Guidelines can and do have the force and 4 (July See The ( SMART SORNA does contain a provision addressing what [t]he term convicted . . . includes with respect to juvenile adjudications, 42 U.S.C. § 16911(8) (emphasis supplied), but this section neither defines nor limits the term and does not inform its meaning in the context of adult adjudications. 7 effect of law[.] United States v. Stevenson, 676 F.3d 557, 565 (6th Cir. 2012). 5 The conviction SMART is Guidelines not dependent explain upon the the character nominal of changes a or terminological variations present within varying jurisdictions. 73 Fed. Reg. at 38,050. To the contrary, in order to effectuate a comprehensive and uniform national system, a single standard controls: an purposes if adult the sex sex offender offender is convicted remains subject for SORNA to penal consequences based on the conviction, however it may be styled. Id. (emphasis supplied). The federal registration requirement, 5 By leaving the operative statutory term undefined and delegating broad rulemaking authority to the Attorney General, Congress has implicitly left a gap in SORNA s statutory regime that the Attorney General may fill. See Chevron U.S.A., Inc. v. Natural Resources Def. Council, Inc., 467 U.S. 837, 843 (1984) ( The power of an administrative agency to administer a congressionally created . . . program necessarily requires the formulation of policy and the making of rules to fill any gap left, implicitly or explicitly, by Congress. (quoting Morton v. Ruiz, 415 U.S. 199, 231 (1974))); see also United States v. Under Seal, 709 F.3d 257, 263 (4th Cir. 2013) ( SORNA is a nonpunitive, civil regulatory scheme, both in purpose and effect. ). Because the Attorney General s duly promulgated explication of the term convicted is consistent with the statutory language as well as eminently reasonable, we are satisfied it represents a permissible - and correct -construction of the statute. See, e.g., Nat l City Bank of IN v. Turnbaugh, 463 F.3d 325, 332 (4th Cir. 2006) ( [I]n cases of statutory silence, we must defer, under Chevron, to [an agency s interpretation of its governing statute], so long as that interpretation is permissible in light of the statutory text and reasonable. (quoting Ohio Valley Envtl. Coal. v. Bulen, 429 F.3d 493, 498 (4th Cir. 2005))). 8 in other words, cannot be avoided simply because a jurisdiction h[as] a procedure under which the convictions of sex offenders in certain categories . . . are referred to as something other than convictions. Id. Rather, so long as the sex offender is nevertheless required to serve what amounts to a criminal sentence for the offense, he is convicted of a sex offense and falls within the ambit of SORNA s registration requirements. Id. Here, Appellant was sentenced to, inter alia, a twoyear term of probation pursuant to his nolo contendere plea to the attempted sexual battery charge, and he served three days in jail. penal Appellant conceded at oral argument that probation is a consequence, see Oral Argument at 05:42-05:47, United States v. Bridges, No. 13-4067 (Dec. 11, 2013), available at http://www.ca4.uscourts.gov/oral-argument/listen-to-oralarguments, and we agree that this principle is beyond dispute. See Dickerson, 460 U.S. at 113-14 ( [O]ne cannot be placed on probation if the court does not deem him to be guilty of a crime[.] ); see also United States v. Medina, 718 F.3d 364, 368 (4th Cir. 2013) (noting probation is a form of restraint on [a defendant s] liberty ). The only question, therefore, is whether Florida s method of withholding adjudication works to exempt Appellant federal law. from registering as a We conclude that it does not. 9 sex offender under The SMART Guidelines specifically contemplate a situation such as the one at issue here, i.e., where a state has implemented a procedure for the disposition of criminal cases that nominally affects a category of sex offenders but do[es] not relieve a conviction of substantive effect. at 38,050. 73 Fed. Reg. In this context, the Guidelines are clear - a sex offender is convicted so long as he remains subject to penal consequences . . . however [the conviction] may be styled. Id. (emphasis the supplied). Appellant pled nolo contendere to attempted sexual battery of a child. 6 The state court entered a judgment two order and sentenced him to years probation, a sentence that attached immediately, and withheld only the formal adjudication of his guilt. Whatever the ultimate length of Appellant s probationary term or the status of his conviction under state law, 7 he was required to serve what amounts to a criminal sentence for [his] offense. Id. He was thus 6 Despite Appellant s intimations to the contrary, a plea of nolo contendere has the effect of a plea of guilty. United States v. Kahn, 822 F.2d 451, 455 (4th Cir. 1987) (internal quotation marks and citations omitted). Where, as here, we are only concerned with the fact of a conviction, not its classification, the form of the plea makes no difference. 7 The record is unclear as to whether Appellant entered Army, which would have terminated his probationary term, or otherwise discharged prior to the natural expiration of sentence. It is undisputed, however, that he was sentenced and served, some term of probation. 10 the was his to, convicted of a sex offense under 42 U.S.C. § 16911(1) and was required to register under SORNA. This conclusion is reinforced by the decisions of two of our sister circuits, each of which have concluded that a Florida nolo contendere plea with adjudication constitutes a conviction under federal law. withheld See United States v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008) (entry of nolo contendere plea with adjudication withheld constitutes a prior conviction under 18 U.S.C. § 2252A); United States v. Storer, 413 F.3d 918, 921 22 (8th Cir. 2005) (same); United States v. Mejias, 47 F.3d 401, 404 (11th Cir. 1995) (entry of nolo contendere plea with adjudication withheld constitutes a prior conviction under 21 U.S.C. § 841(b)(1)(B)). Although Appellant argues that United States v. Willis, 106 F.3d 966 (11th Cir. 1997), is analyzed to whether adjudication law. the contrary, the withheld See id. at 968. entry he is of a constituted simply nolo a incorrect. contendere conviction Willis plea under with state That decision, as the Eleventh Circuit itself has noted, is inapposite in the context of analyzing the meaning of a conviction under federal law. See Maupin, 520 F.3d at 1307; see also Oral Argument at 05:42-05:47 (Appellant agreeing that state definitions of convicted are irrelevant in cases arising under SORNA). In short, the relevant authority uniformly rejects Appellant s position. 11 Finally, lenity we argument. are In unpersuaded order to by invoke Appellant s this rule, rule we of must conclude that there is a grievous ambiguity or uncertainty in the statute. Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 2012) in (emphasis original) (quoting States, 524 U.S. 125, 138 39 (1998)). use of the grievousness lenity. term that convicted would does warrant Muscarello v. United The ambiguity in SORNA s not rise to application of the level the of rule of See Muscarello, 524 U.S. at 138 ( The simple existence of some statutory ambiguity . . . is not sufficient to warrant application of [the] rule, for most statutes are ambiguous to some degree. ). In sum, we hold that Appellant s nolo contendere plea with adjudication withheld constitutes a conviction for the purposes of 42 U.S.C. § 16911(1) because it resulted in a penal consequence. Therefore, Appellant was required to register as a sex offender under SORNA and falls within the ambit of 18 U.S.C. § 2250. The district court properly denied his motion judgment of to dismiss the indictment. IV. For the foregoing reasons, the the district court is AFFIRMED. 12
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