United States v. William Bridges , 741 F.3d 464 ( 2014 )

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 sex offender
registration in violation of 18 U.S.C. § 2250. Appellant moved
to dismiss the indictment, arguing that 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”). The district court denied the
motion, and Appellant entered 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. See Fla. Stat.
§ 943.0435. 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. The state court later revoked
his probation because he failed to report to his probation
2
The version of the statute in effect at the time of
Appellant’s offense conduct provided, in pertinent part:
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 moved to Virginia in 2010, where he
registered as a sex offender. However, on August 2, 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. J.A. 12. The district court denied
Appellant’s motion, concluding that 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 his written plea agreement,
4
Appellant “expressly waive[d]” his right to appeal, with the
“sole exception” of “the right to appeal the Court’s denial of
[his] Motion to Dismiss the Indictment.” J.A. 58 (emphasis
supplied). 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. See United States
3
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. 42 U.S.C. § 16901. In
order to address the significant number of “missing” sex
offenders, see H.R. Rep. No. 109–218, pt. 1, at 26 (2005), SORNA
“establishes a comprehensive national system for the
registration of [sex] offenders,” 42 U.S.C. § 16901. SORNA thus
requires a sex offender, defined as “an 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 as a conviction
within the meaning of 42 U.S.C. § 16911(1). We begin with the
6
undisputed premise that federal law, rather than state law,
controls the question of what constitutes a conviction under
SORNA. See Dickerson v. New Banner Inst., Inc., 460 U.S. 103,
119 (1983) (“[I]n the absence of a plain indication to the
contrary, . . . it is to be assumed when Congress enacts a
statute that it does not intend to make its application
dependent on state law.” (quotation marks 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 that Congress left the statutory term “convicted”
undefined 4 and expressly granted authority to 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. See The
National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38,030 (July 2, 2008) (“SMART
Guidelines”). These Guidelines “can and do have the force and
4
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 SMART Guidelines explain the character of a
“conviction” is not dependent upon the “nominal changes 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 adult sex offender is ‘convicted’ for SORNA
purposes if the sex offender remains subject 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 non-
punitive, 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 two-
year term of probation pursuant to his nolo contendere plea to
the attempted sexual battery charge, and he served three days in
jail. Appellant conceded at oral argument that probation is a
penal 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-oral-
arguments, 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 from registering as a sex offender under
federal law. We conclude that it does not.
9
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.” 73 Fed. Reg.
at 38,050. 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 supplied). Appellant pled nolo contendere to the
attempted sexual battery of a child. 6 The state court entered a
judgment order and sentenced him to two 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 the
Army, which would have terminated his probationary term, or was
otherwise discharged prior to the natural expiration of his
sentence. It is undisputed, however, that he was sentenced to,
and served, some term of probation.
10
“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 withheld
constitutes a “conviction” under federal law. 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 to the contrary, he is simply incorrect. Willis
analyzed whether the entry of a nolo contendere plea with
adjudication withheld constituted a “conviction” under state
law. See id. at 968. 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, we are unpersuaded by Appellant’s rule of
lenity argument. In order to invoke this rule, “‘we must
conclude that there is a grievous ambiguity or uncertainty in
the statute.’” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir.
2012) (emphasis in original) (quoting Muscarello v. United
States, 524 U.S. 125, 138–39 (1998)). The ambiguity in SORNA’s
use of the term “convicted” does not rise to the level of
grievousness that would warrant application of the rule of
lenity. 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 to
dismiss the indictment.
IV.
For the foregoing reasons, the judgment of the
district court is
AFFIRMED.
12