Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided.
Lower court opinion: United States v. Nichols, 775 F.3d 1225 (10th Cir. 2014)
The resolution of this question will be of interest to federal criminal law practitioners defending prosecutions for failing to register under the federal Sex Offender Registration and Notification Act (SORNA). As Nichols’s petition explains, two neighboring Circuit Courts of Appeals have given exactly opposite answers to the question raised, and they’ve done so under circumstances that dramatically illustrate the need to resolve the question.
Two sex offenders from the Kansas City metropolitan area moved to the Philippines without updating their sex offender registry information with their new addresses. Both were eventually deported and, upon repatriation, were convicted of failing to update the sex offender registry. But on appeal their fates diverged.
One of the offenders was Nichols. He was from the Kansas side of the metro area, which is in the Tenth Circuit; his conviction was affirmed under circuit precedent holding that SORNA applies to offenders who move out of the country. United States v. Murphy, 664 F.3d 798 (10th Cir. 2011). The other offender was from the Missouri side of town, which is in the Eighth Circuit; his conviction was thrown out because the court of appeals rejected the reasoning of Murphy and held that SORNA doesn’t extend to offenders who have moved out of the country. United States v. Lunsford, 725 F.3d 859 (8th Cir. 2013).
Lunsford‘s reasoning relies on § 16913(a)’s requirement that the offender must register in “each jurisdiction where the offender resides” and that SORNA defines “jurisdiction” in § 16911(10) to exclude foreign countries. While that may clearly mean an offender would not have to register once he or she is living outside of the country, Murphy found it was a violation for the offender to abandon a U.S. residence for another country without informing the registry that he is doing so because, at the moment he abandons his residence, he is still residing in the jurisdiction and must update the registry with information that he has abandoned his residence. 664 F.3d at 803. Lunsford disagreed, saying “resides” is a present-tense verb, Carr v. United States, 560 U.S. 438 (2010), and that abandoning the U.S. residence means the offender no longer “resides” there and doesn’t have to update the registry. 725 F.3d at 861. Carr held that liability for failing to update a registration after travel in interstate or foreign travel, 18 U.S.C. § 2250(a), couldn’t be based on travel that occurred before SORNA took effect. We’ll see whether the Court agrees that Carr supports Lunsford‘s reading of SORNA.
