United States v. Husted

FILED
United States Court of Appeals
Tenth Circuit

November 5, 2008
Elisabeth A. Shumaker
PUBLISH Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff–Appellee.
No. 08-6010
v.

MICHAEL RAY HUSTED,

Defendant–Appellant.

Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:07-CR-00105-D-1)

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for the Defendant–Appellant.

Robert Don Gifford, II, Assistant U.S. Attorney (John C. Richter, United States
Attorney, with him on the briefs), Oklahoma City, Oklahoma, for the
Plaintiff–Appellee.

Before HENRY, Chief Judge, BRISCOE, and LUCERO, Circuit Judges.

LUCERO, Circuit Judge.

Michael Ray Husted challenges his conviction under 18 U.S.C. § 2250, part

of the Sex Offender Registration and Notification Act (“SORNA” or “the Act”),
for failure to register as a sex offender after traveling in interstate commerce. He

makes four arguments on appeal: (1) SORNA does not apply to him because his

interstate travel was complete before the Act became effective; (2) SORNA does

not apply to him because Missouri state law did not require him to register; (3) if

SORNA does apply to him, it violates the Ex Post Facto Clause of the

Constitution; and (4) SORNA is not within Congress’s Commerce Clause

authority. We conclude that SORNA cannot apply to a defendant whose interstate

travel is complete prior to the effective date of the Act. Exercising jurisdiction

under 28 U.S.C. § 1291, we reverse Husted’s conviction.

I

Husted was convicted of aggravated criminal sexual abuse of a child on

March 22, 1993, in Hancock, Illinois. Under Illinois law, Husted was required to

register as a sex offender and to annually update his registration with Illinois

authorities. In April 2005, he failed to update his registration with the Illinois sex

offender registry, so his registration obligation was extended for an additional ten

years. In January 2006, Husted informed the Hancock County Sheriff’s

Department in Illinois that he was moving to Enid, Oklahoma. Husted left

Illinois for Oklahoma shortly thereafter.

Husted registered as a sex offender with Oklahoma authorities on February

8, 2006, and updated his registration on March 15, 2006. He did not thereafter

update his registration with Oklahoma authorities and, as a result, fell out of

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compliance with Oklahoma law. On February 8, 2007, Oklahoma officials mailed

a letter to Husted at his Enid address informing him that he was out of compliance

with state registration requirements. Because Husted no longer lived at his

recorded address, the letter was returned six days later. In response, officials

from the Oklahoma Department of Corrections notified the United States

Marshals Service that Husted was in violation of Oklahoma law and that his

whereabouts were unknown. Officers from the Enid Police Department then

visited Husted’s last known address to investigate and learned that Husted had

moved in April 2006.

On April 6, 2007, a Deputy United States Marshal contacted the police

department in Lebanon, Missouri to determine if Husted had moved there. The

Lebanon Police Department reported that Husted had been arrested on unrelated

charges on March 6, 2007, while living in Lebanon. At no point did Husted

inform Oklahoma officials of his move to Missouri, nor did he register with

Missouri officials upon his arrival in Lebanon.

It is not clear from the record precisely when Husted moved from

Oklahoma to Missouri, but it is undisputed that he did so prior to July 27, 2006,

the effective date of SORNA. Moreover, there is no indication from the record

that Husted ever left Missouri after July 27, 2006, and the government does not

argue to the contrary. As the government conceded at oral argument, on the

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record before us, Husted’s interstate travel was complete prior to SORNA’s

effective date.

In April 2007, an Oklahoma grand jury indicted Husted with one count of

failure to register as a sex offender, in violation of SORNA, specifically 18

U.S.C. § 2250. 1 The indictment alleged that Husted had failed to properly

“update and register as a sex offender” in Missouri after traveling in interstate

commerce from Oklahoma. Husted moved to dismiss his indictment, raising the

same four arguments he has preserved on appeal: (1) SORNA did not apply to

him because his interstate travel was complete prior to the Act’s effective date;

(2) Missouri law did not require Husted to register as a sex offender, so his

failure to register in Missouri could not serve as the basis for a SORNA violation;

(3) applying SORNA to Husted violated the Ex Post Facto Clause of the

Constitution; and (4) SORNA exceeded the scope of Congress’s Commerce

Clause authority. The district court denied Husted’s motion to dismiss but,

apparently concerned about a potential Ex Post Facto Clause violation, amended

the indictment to reflect July 27, 2006—the effective date of SORNA—as the

date the offense commenced.

Husted pleaded guilty to the indictment, reserving the right to appeal the

denial of his motion to dismiss. The district court sentenced Husted to 18

1
SORNA was enacted as Title I of the Adam Walsh Child Protection and
Safety Act of 2006 (“Adam Walsh Act”), Pub. L. No. 109-248, 120 Stat. 587
(2006).

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months’ imprisonment as well as five years of supervised release. Appeal was

then taken.

II

Before reaching any constitutional issues, we must first decide whether 18

U.S.C. § 2250(a)(2)(B) applies to a defendant whose interstate travel is complete

prior to July 27, 2006, the date SORNA became effective. We conclude that it

does not.

We review issues of statutory interpretation de novo, accepting the district

court’s factual determinations unless they are clearly erroneous. United States v.

Manning, 526 F.3d 611, 614 (10th Cir. 2008).

A

We begin our analysis, as we must, with the text of SORNA. E.g., Duncan

v. Walker, 533 U.S. 167, 172 (2001); Williams v. Taylor, 529 U.S. 420, 431

(2000); United States v. Gonzales, 520 U.S. 1, 4 (1997). If the words of the Act

are unambiguous, our inquiry progresses no further. Gonzales, 520 U.S. at 6

(“Given the straightforward statutory command, there is no reason to resort to

legislative history.”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)

(“When the words of a statute are unambiguous, then, this first canon is also the

last: ‘judicial inquiry is complete.’” (citation omitted)); Kelley v. City of

Albuquerque, 542 F.3d 802, 813 (10th Cir. 2008). It is a cardinal principle of

statutory construction that “[i]f the language is clear and unambiguous, the plain

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meaning of the statute controls.” Vaughn v. Epworth Villa, 537 F.3d 1147, 1152

(10th Cir. 2008) (quotation omitted). Based on SORNA’s plain language, we

conclude that § 2250(a)(2)(B) does not apply to an individual whose interstate

travel is complete before July 27, 2006.

SORNA provides:

a) In general.—Whoever—

(1) is required to register under the Sex Offender
Registration and Notification Act;

(2)(A) is a sex offender as defined for the purposes of the
Sex Offender Registration and Notification Act by reason
of a conviction under Federal law (including the Uniform
Code of Military Justice), the law of the District of
Columbia, Indian tribal law, or the law of any territory or
possession of the United States; or

(B) travels in interstate or foreign commerce, or enters or
leaves, or resides in, Indian country; and

(3) knowingly fails to register or update a registration as
required by the Sex Offender Registration and Notification
Act;

shall be fined under this title or imprisoned not more than 10 years,
or both.

18 U.S.C. § 2250 (emphasis added). Thus, in order to convict a defendant under

§ 2250 using the first clause of subsection (a)(2)(B), the government must prove

that he: (1) is required to register under SORNA; 2 (2) travels in interstate

2
42 U.S.C. § 16911 (defining “sex offender” and other relevant terms),
(continued...)

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commerce; 3 and (3) knowingly fails to register or update registration as required

by SORNA. We need only address the second element in order to resolve this

appeal. Husted argues that SORNA does not apply to him because the term

“travels” only covers individuals who travel in interstate commerce after

SORNA’s effective date. By contrast, the government contends that the term

“travels” encompasses individuals who travel in interstate commerce at any point

after they have been convicted of a qualifying sex offense. We agree with

Husted.

As noted, § 2250(a)(2)(B) applies to whomever “travels in interstate . . .

commerce” (emphasis added). Congress’s use of the present tense form of the

verb “to travel” indicates that SORNA’s coverage is limited to those individuals

who travel in interstate commerce after the Act’s effective date. 4 See 1 U.S.C.

§ 1 (directing courts that, unless context indicates otherwise, “words used in the

present tense include the future as well as the present”); United States v. Wilson,

503 U.S. 329, 333 (1992) (“Congress’ use of a verb tense is significant in

2
(...continued)
§ 16913 (establishing registration requirements).
3
At oral argument, the government conceded that § 2250(a)(2)(B) is an
express jurisdictional element of the offense.
4
Section 2250 also reaches those persons who were convicted under federal
law, the law of the District of Columbia, Indian tribal law, or the law of any
United States territory, see § 2250(a)(2)(A), but that portion of the statute is not
at issue here.

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construing statutes.”). The Act uses the present tense (“travels”), which

according to ordinary English grammar, does not refer to travel that has already

occurred. Had Congress used the past tense (“traveled”) or the present perfect

tense (“has traveled”), then this might be a different case. Here, however, we

find no ambiguity in Congress’s use of the word “travels.”

Additionally, Congress’s use of the present tense throughout

§ 2250(a)(2)(B) confirms our interpretation of the term “travels.” See United

States v. Bishop, 412 U.S. 346, 356 (1973) (“[C]ontext is important in the quest

for [a] word’s meaning.”); United States v. Ceballos-Martinez, 387 F.3d 1140,

1144 (10th Cir. 2004) (noting that statutory interpretation “requires [courts] to

interpret Congress’s choice of words in the context that it chose to use them”).

Following the word “travels” in § 2250(a)(2)(B), the remainder of that clause

encompasses whoever “enters or leaves, or resides in, Indian country” (emphasis

added). Because Congress also used the present tense of the verbs “to enter,” “to

leave,” and “to reside” in the remainder of the clause, we infer that Congress’s

use of the present tense of “travels” was not inadvertent. Indeed, “the

undeviating use of the present tense strongly suggests [that] the harm sought to be

addressed . . . lies in the present or the future, not in the past.” Gwaltney of

Smithfield, Ltd. v. Chesapeake Bay Found., 484 U.S. 49, 59 (1987). Context thus

confirms the statute’s unambiguous meaning: “travels” encompasses only travel

occurring after SORNA’s effective date.

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 United States v. Jackson, 480 F.3d 1014 (9th Cir. 2007), further supports

our plain meaning analysis. Jackson interpreted 18 U.S.C. § 2423(c), which

punishes any United States citizen “who travels in foreign commerce, and

engages in any illicit sexual conduct with another person” (emphasis added). The

court reasoned that § 2423(c) contained two elements: (1) travel and (2) illicit

sexual conduct. Jackson, 480 F.3d at 1017-18. Emphasizing the statute’s use of

the present tense form, “travels,” the court held that § 2423(c) applied only to

travel in foreign commerce occurring after the statute’s enactment. Id. at 1018-

19. Just as “travel” after the statute’s enactment is an element of § 2423(c), so

too is “travel” after SORNA’s enactment an element of 18 U.S.C. § 2250. As our

sibling circuit held, Congress’s use of the present tense indicates that it was

targeting prospective travel. A clear majority of district courts also agrees with

our analysis of “travels” in § 2250. 5 Accordingly, based on SORNA’s plain and

unambiguous language, we hold that a person must travel in interstate or foreign

commerce after the Act’s effective date to be convicted under § 2250(a)(2)(B). 6

5
United States v. Young, 2008 WL 4367851, at *4 (W.D. Tex. June 3,
2008) (unpublished); United States v. Utesch, 2008 WL 656066, at *7 (E.D. Tenn.
Mar. 6, 2008) (unpublished); United States v. Kent, 2007 WL 2746773, at *2
(S.D. Ala. Sept. 20, 2007) (unpublished); United States v. Smith, 481 F. Supp. 2d
846, 851 (E.D. Mich. 2007).
6
Because we find the text of the statute unambiguous, we need not apply
the rule of lenity. See United States v. Lanier, 520 U.S. 259, 266 (1997)
(ambiguity in a criminal statute should be resolved to encompass only conduct
clearly covered by the statute’s text).

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 B

Despite SORNA’s plain meaning, the government argues that we should

nonetheless interpret the statute to reach defendants who traveled interstate before

the Act’s effective date because to do otherwise would reach an absurd result.

The government attempts to rely on the absurdity doctrine articulated in Green v.

Bock Laundry Machine Co., 490 U.S. 504, 509 (1989), United States ex rel. Hill

v. American Surety Co. of New York, 200 U.S. 197, 203 (1906), and Church of

the Holy Trinity v. United States, 143 U.S. 457, 460 (1892). According to the

government, Congress intended SORNA to close what was essentially a loophole

in the states’ sex offender registries. Because sex offenders were frequently able

to evade registration requirements simply by moving from state to state, Congress

enacted SORNA to close the gaps in the disparate state registration systems and

to create a comprehensive registration scheme. It would be absurd, the

government tells us, to conclude that Congress did not intend to sweep within the

Act’s scope those individuals who traveled in interstate commerce prior to its

effective date.

We must bear in mind, however, that the absurdity doctrine applies to

unambiguous statutes, such as § 2250(a)(2)(B), in only the most extreme of

circumstances. See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 459 (2002);

Robbins v. Chronister, 435 F.3d 1238, 1241 (10th Cir. 2006) (en banc); Kelley,

542 F.3d at 814-15. Almost two hundred years ago, Chief Justice Marshall laid

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the seeds for the absurdity doctrine and highlighted how rare a case must be for it

to apply:

[I]f, in any case, the plain meaning of a provision, not
contradicted by any other provision in the same instrument, is
to be disregarded, because we believe the framers of that
instrument could not intend what they say, it must be one in
which the absurdity and injustice of applying the provision to
the case, would be so monstrous, that all mankind would,
without hesitation, unite in rejecting the application.

Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 202-03 (1819). Admittedly,

the Supreme Court no longer requires a “monstrous” result to invoke the absurdity

doctrine. See Bock Laundry, 490 U.S. at 509 (allowing for application of the

absurdity doctrine in some cases where a “literal reading would compel an odd

result”). This court implicitly distinguished Bock Laundry, in which the rule at

issue was ambiguous, from cases where the provision interpreted is unambiguous.

United States v. Newsome, 898 F.2d 119, 121 n.3 (10th Cir. 1990). In Newsome,

we held that we will ignore the plain meaning of an unambiguous statute only

when that meaning “leads to absurd results ‘so gross as to shock the general moral

or common sense.’” Id. (quoting Crooks v. Harrelson, 282 U.S. 55, 60 (1930)).

Here, as we have shown, the relevant portion of SORNA is unambiguous, and we

cannot say that Congress’s choice to regulate only those sex offenders who travel

interstate after SORNA’s enactment shocks the general moral or common sense.

Indeed, prospective legislation is typical of the legislative task, and Congress may

well have wished to avoid the very ex post facto concern Husted raises before this

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court. See, e.g., United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982)

(“The principle that statutes operate only prospectively . . . is familiar to every

law student.”). Consequently, we decline to apply the absurdity doctrine to

contravene SORNA’s plain meaning.

The government also wishes that we read the broad purposes in the

preamble of the Adam Walsh Act to contradict the plain meaning of

§ 2250(a)(2)(B). When a statute is unambiguous, however, we must apply its

plain meaning except in the rarest of cases; after all, there can be no greater

statement of legislative intent than an unambiguous statute itself. Holland v.

Dist. Court, 831 F.2d 940, 943 (10th Cir. 1987) (“What a legislature says in the

text of a statute is considered the best evidence of legislative intent or will.”

(quotation omitted)). Congress no doubt intended to protect the public from sex

offenders, see 42 U.S.C. § 16901 (Adam Walsh Act Declaration of Purpose), but

that broad purpose cannot create ambiguity in a separate, specific portion of the

statute where ambiguity does not otherwise exist. Such a reading would

contravene the axiom that a specific provision controls over a general one.

Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991); Crawford Fitting Co.

v. J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987); HCSC-Laundry v. United States,

450 U.S. 1, 6 (1981); United States v. Wagner, 994 F.2d 1467, 1474 (10th Cir.

1993). To do as the government requests would flood our jurisprudence with

claimed ambiguity. Thus, we find no justification, including a broadly stated

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congressional purpose, to reach an outcome different than that dictated by the

plain language of § 2250(a)(2)(B).

C

Supreme Court case law, as well as ours, clarifies that “[a] statute may not

be applied retroactively . . . absent a clear indication from Congress that it

intended such a result.” INS v. St. Cyr, 533 U.S. 289, 316 (2001); accord

Fernandez-Vargas v. Gonzales, 548 U.S. 30, 37 (2006) (“[A] statute shall not be

given retroactive effect unless such construction is required by explicit language

or by necessary implication.” (quotation omitted)); Sec. Indus. Bank, 459 U.S. at

79-80 (“The presumption is very strong that a statute was not meant to apply

retrospectively, and it ought never to receive such a construction if it is

susceptible of any other.” (quotation omitted)); DeVargas v. Mason & Hanger-

Silas Mason Co., 911 F.2d 1377, 1387 (10th Cir. 1990) (“The standard of ‘clear

congressional intent’ for the retroactive application of statutes requires articulated

and clear statements on retroactivity, not inferences drawn from the general

purpose of the legislation.”). At argument, the government conceded that

interstate travel is an element of the failure to register offense under 18 U.S.C.

§ 2250. We will not give this element retroactive effect if another meaning can

fairly be given. See St. Cyr, 533 U.S. at 315-16 (“[C]ongressional enactments . . .

will not be construed to have retroactive effect unless their language requires this

result.” (quotation omitted)). Here, the language of § 2250(a)(2)(B) not only

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fairly supports our conclusion that “travels” applies only to interstate travel

occurring after SORNA’s effective date, the language plainly requires that

conclusion.

It is asserted by the government that Congress has spoken to the

retroactivity issue, and that St. Cyr’s admonition against retroactivity therefore

does not apply. We disagree. We are directed to the Department of Justice’s

Interim Rule applying SORNA “to all sex offenders, including sex offenders

convicted of the offense for which registration is required prior to the enactment

of that Act.” 28 C.F.R. § 72.3. Contrary to the government’s contention,

however, this Rule does not speak to retroactivity of interstate travel under

subsection (a)(2)(B). Rather, it speaks solely to the retroactivity of

subsection (a)(1), which refers to the remainder of SORNA in defining who must

register. This Rule, therefore, does not demonstrate congressional intent to

capture within the Act’s scope defendants whose interstate travel is complete

prior to July 27, 2006. 7

In the same vein, the government urges us to rely on floor statements by

Senator Orin Hatch and Representative F. James Sensenbrenner as a basis for

interpreting “travels” to encompass pre-SORNA interstate travel. See 152 Cong.

Rec. S8012, 8013 (daily ed. July 20, 2006) (statement of Sen. Hatch); 152 Cong.

7
We need not resolve the government’s perplexing argument that an
interim rule promulgated by the Department of Justice could somehow constitute
a clear statement of intent by Congress to apply SORNA retroactively.

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Rec. H5705, 5722 (daily ed. July 25, 2006) (statement of Rep. Sensenbrenner).

But, it is a longstanding principle that absent ambiguity we cannot rely on

legislative history to interpret a statute. See, e.g., BedRoc Ltd. v. United States,

541 U.S. 176, 186-87 & n.8 (2004); United States v. Fisher, 6 U.S. (2 Cranch)

358, 386 (1805); United States v. Gonzales, 456 F.3d 1178, 1182 (10th Cir.

2006). Moreover, to the extent that we rely on the canon against retroactivity as

additional support for our plain text holding, the legislative history here is not

sufficiently clear to preclude the effect of that longstanding canon. As we have

previously stated with regard to Senate reports, “an ambiguous statement in [a]

senate report on the need for action does not amount to the clear intent required to

invoke retroactivity.” See DeVargas, 911 F.2d at 1386. Ambiguous floor

statements, like those at issue here, are similarly insufficient to demonstrate a

clear congressional intent to apply § 2250(a)(2)(B) retroactively.

Coupled with the floor statements of Senator Hatch and Representative

Sensenbrenner, the government at oral argument urged this court to examine a

textual change made to SORNA between its introduction in the House of

Representatives and its final passage. As initially proposed in the House of

Representatives, the relevant subsection read, “whoever . . . thereafter travels in

interstate or foreign commerce.” Children’s Safety and Violent Crime Reduction

Act of 2005, H.R. 4472, 109th Cong. § 2250(a)(2) (1st Sess. 2005) (as introduced

in House on Dec. 8, 2005) (emphasis added). According to the government,

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deletion of the word “thereafter” prior to SORNA’s passage changed the meaning

of the provision to encompass travel completed before July 27, 2006.

Interpretation of the removal of “thereafter,” however, is far from obvious.

It can just as plausibly be said that “thereafter” was deleted to avoid redundancy.

Use of “travels” in the present tense was alone sufficient to convey Congress’s

limitation of the scope of § 2250(a)(2)(B) to travel occurring after SORNA

became effective. Because there is an equally plausible interpretation of

Congress’s decision to delete the word “thereafter,” the government’s attempted

inference from legislative history is not the “clear” or “necessary implication”

required to contravene the canon against retroactivity.

Because we hold that SORNA does not apply to Husted, whose interstate

travel was complete prior to the Act’s effective date, we need not reach any of his

remaining arguments.

III

We REVERSE Husted’s conviction, VACATE his sentence, and REMAND

to the district court with directions to DISMISS the indictment in accordance with

this opinion.

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