United States v. Robert Bruffy , 466 F. App'x 239 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-5007
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT BRUFFY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:10-cr-00077-LMB-1)
Argued: December 6, 2011 Decided: February 16, 2012
Before MOTZ, GREGORY, and KEENAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Keenan wrote the
majority opinion, in which Judge Motz joined. Judge Gregory
wrote an opinion concurring in part and dissenting in part.
ARGUED: Shannon S. Quill, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Jeffrey Zeeman, OFFICE OF
THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Caroline S. Platt, Appellate Attorney, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, Tracy Doherty-McCormick,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BARBARA MILANO KEENAN, Circuit Judge:
Robert John Bruffy was convicted in a bench trial of
knowingly failing to register and update his registration as
required by the Sex Offender Registration and Notification Act
(SORNA), in violation of 18 U.S.C. § 2250(a). Bruffy challenges
his conviction, arguing first that the reporting requirements of
SORNA are unconstitutionally vague as applied to individuals
such as himself who lack a fixed permanent address, and second,
that the evidence was insufficient to support his conviction.
Upon our review of the record and the requirements of SORNA, we
affirm Bruffy’s conviction.
I.
Bruffy was convicted in December 2000 of the felony of
“sexual offense in the second degree” in Anne Arundel County,
Maryland. As a result of his conviction, Bruffy was required
under SORNA to register as a sex offender in the state in which
he resided.
On May 7, 2008, Bruffy filed a Maryland Sexual Offender
Information Change Form, indicating his intention to move from
Maryland to Florida. The next week, upon arriving in Florida,
Bruffy submitted to the Florida authorities a completed Florida
Department of Law Enforcement Sexual Predator/Offender
Registration Form (Florida form).
3
About eight months later, Bruffy made plans to move once
again. On January 13, 2009, Bruffy filed another Florida sex
offender registration form with the Florida authorities. On
this form, Bruffy provided January 13, 2009, as his date of
departure, and listed his “Current Permanent Address” as
“Transient, Edge Water [sic], MD 21307,” which is located in
Anne Arundel County, Maryland.
Bruffy did not mark the box on the Florida form
representing that he was leaving his Florida residence and had
“no other permanent or temporary residence” as of his date of
departure, nor did he check the box indicating that he had “no
other permanent or temporary residence at this time.” Bruffy
did, however, mark the box on the Florida form indicating that
he did not have a temporary address. This form filed on January
13, 2009 was the last sexual offender information form that
Bruffy filed.
Before Bruffy left Florida, he had arranged to stay in the
apartment of John Stec and Erica Liller (the Belle Haven
apartment) in the Belle Haven area of Fairfax County, Virginia.
Bruffy planned to rent his own apartment after securing
employment. He sought work with a former employer in Maryland,
and spoke generally about living in Maryland or living in
Pennsylvania, where his son and sister lived.
4
From January 13, 2009 through February 5, 2009, Bruffy
spent almost every night on a couch in the Belle Haven
apartment. Although he also took showers and ate there, every
day he removed his belongings from the Belle Haven apartment and
stored them in his vehicle. Bruffy did not have a key to the
apartment, but was required to contact either Stec or Liller
each evening that he planned to stay there in order to gain
entry. During this period, Bruffy spent a few nights at his
uncle’s residence in Charles County, Maryland.
On February 5, 2009, Bruffy committed misdemeanor sexual
battery on Stec, after which Bruffy no longer slept in the Belle
Haven apartment. From that date until February 15, 2009, Bruffy
lived in his car, at various locations in the Belle Haven area
of Fairfax County, in Washington, D.C., and in Maryland. On a
number of these days, Bruffy parked his car in the parking lot
of a church located behind the Belle Haven apartment. He
returned to the Belle Haven apartment on a daily basis to take
Liller back and forth to work. There is no evidence that Bruffy
spent any time in Anne Arundel County, Maryland, during this
period.
On February 15, 2009, Bruffy was arrested in Fairfax
County, about 2.5 miles from the Belle Haven apartment. He
later was indicted for failing to update his registration as a
5
sex offender, as required by SORNA, in violation of 18 U.S.C. §
2250(a).
Bruffy moved to dismiss the indictment in the district
court. He argued that SORNA is unconstitutionally vague as
applied to transients such as himself, because the language of
SORNA does not clarify where such transients “reside” for
purposes of compliance with the statute. The district court
denied Bruffy’s motion to dismiss, and the case proceeded to
trial.
In a statement of stipulated facts, Bruffy acknowledged
that he was aware of the registration requirements of SORNA, and
that he had not submitted any updated registration information
since leaving Florida on January 13, 2009. Based on these
facts, the district court found Bruffy guilty of failing to
register as a sex offender in Virginia and failing to update the
information provided to Florida regarding his Virginia
residency. Bruffy appeals from this conviction.
II.
Bruffy makes two arguments on appeal. First, he asserts
that SORNA is unconstitutionally vague as applied to transient
offenders such as himself. Second, Bruffy contends that the
stipulated facts before the district court were insufficient to
support his conviction. We address these arguments in turn.
6
A.
Bruffy argues that the definition of “resides” provided in
SORNA is unconstitutionally vague as applied to transient
offenders who have vacated one residence but have not yet
established a new residence in a different state. He asserts
that SORNA fails to provide fair notice of the point in time
when presence in a new jurisdiction triggers the registration
requirement. We review this vagueness argument, which presents
a question of law, de novo. United States v. Brandon, 298 F.3d
307, 310 (4th Cir. 2002).
Bruffy was convicted under 18 U.S.C. § 2250(a) (the
enforcement statute), which punishes violations of SORNA. That
statute provides:
In general. Whoever—
(1) is required to register under the Sex
Offender Registration and Notification Act;
(2)
. . .
(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.
7
18 U.S.C. § 2250(a). Bruffy acknowledges that he is required by
SORNA to register as an offender, and that he traveled in
interstate commerce. Therefore, the only subsection at issue
here is the provision addressing the updating of registration
under SORNA.
The relevant sections of SORNA provide:
Registry requirements for sex offenders
(a) In general
A sex offender shall register, and keep the
registration current, in each jurisdiction
where the offender resides, where the offender
is an employee, and where the offender is a
student.
. . .
(c) Keeping the registration current
A sex offender shall, not later than 3 business
days after each change of name, residence,
employment, or student status, appear in person
in at least 1 jurisdiction involved pursuant to
subsection (a) of this section and inform that
jurisdiction of all changes in the information
required for that offender in the sex offender
registry. That jurisdiction shall immediately
provide that information to all other
jurisdictions in which the offender is required
to register.
42 U.S.C. § 16913 (emphasis added).
Under SORNA, “[t]he term ‘resides’ means, with respect to
an individual, the location of the individual’s home or other
place where the individual habitually lives.” 42 U.S.C. §
16911(13). Bruffy alleges that this definition of “resides”
8
renders SORNA impermissibly vague, because the definition does
not provide fair warning directing transient offenders such as
himself, who have left a permanent living situation but have not
yet secured a new one, how to proceed. We disagree with
Bruffy’s argument.
In order to address Bruffy’s constitutional challenge, we
must first classify it appropriately. Although he focuses on
the facts specific to his case, Bruffy also argues more broadly
about the application of SORNA’s registration requirements to
transient offenders generally. However, facial vagueness
challenges to criminal statutes are allowed only when the
statute implicates First Amendment rights. United States v.
Klecker, 348 F.3d 69, 71 (4th Cir. 2003) (citing United States
v. Sun, 278 F.3d 302, 309 (4th Cir. 2002)). Because Bruffy has
not asserted that his First Amendment rights are affected by
SORNA’s registration requirements, we will consider only
Bruffy’s challenge to the statute as it applies to him.
When considering whether a penal statute violates the Due
Process Clause of the Fifth Amendment on vagueness grounds, we
consider both whether that statute provides notice to the public
regarding the activity prohibited, and whether the statute
operates in a manner that does not encourage arbitrary and
discriminatory enforcement. United States v. McLamb, 985 F.2d
1284, 1291 (4th Cir. 1993); see Skilling v. United States, 130
9
S. Ct. 2896, 2927-28 (2010). With respect to the issue of
notice, a defendant must establish that the statute fails to
give a person of ordinary intelligence a reasonable opportunity
to understand the conduct that the statute prohibits. See
United States v. Whorley, 550 F.3d 326, 333 (4th Cir. 2008).
1.
Although two of our sister circuits have addressed SORNA as
it applies to defendants without fixed addresses, none has
addressed the particular vagueness argument Bruffy raises
challenging SORNA’s term “resides.” However, those decisions
of our sister circuits nevertheless provide some useful context
regarding SORNA and its registration requirements as applied to
sex offenders with no fixed address.
In United States v. Voice, the Eighth Circuit addressed the
issue whether a transient offender lacking a fixed address was
required to update his information under SORNA, after he left a
halfway house in one city in South Dakota and began living at
various locations in another jurisdiction in the same state.
622 F.3d 870, 874-75 (8th Cir. 2010). The court held that SORNA
does require that a transient offender update his information,
and further stated that “[w]e reject the suggestion that a savvy
sex offender can move to a different city and avoid having to
update his SORNA registration by sleeping in a different shelter
or other location every night.” Id. at 875.
10
In support of its conclusion, the Eighth Circuit observed
that while a convicted sex offender may lack a residence
address, this fact does not prevent the offender from updating
his registration information. See id. The court quoted from
the Attorney General’s SORNA Guidelines, stating:
Such sex offenders cannot provide [a] residence
address . . . because they have no definite ‘address’
at which they live. Nevertheless, some more or less
specific description should normally be obtainable
concerning the place or places where such a sex
offender habitually lives—e.g., information about a
certain part of a city that is the sex offender’s
habitual locale, a park or spot on the street (or a
number of such places).
Id. (quoting National Guidelines for Sex Offender Registration
and Notification, 73 Fed. Reg. 38,030, 38,055 (July 2, 2008)).
In another case addressing SORNA, United States v. Van
Buren, 599 F.3d 170 (2d Cir. 2010), the Second Circuit discussed
the importance of SORNA’s registration requirements as they
pertain to defendants with no fixed address. In that case, a
convicted sex offender had left his residence in New York and
was arrested at his mother’s house in North Carolina about
fifteen days later. Id. at 171-72. At no time during this
fifteen day period did the defendant update his sex offender
registration with New York or register in North Carolina. Id.The Second Circuit rejected the defendant’s argument that
because he had not established a “new residence,” he was not
required to update his registration information under SORNA.
11
Id. at 174. The court stated that under SORNA, “it is clear
that a registrant must update his registration information if he
alters his residence such that it no longer conforms to the
information that he earlier provided to the registry. Without
accurate registration information, SORNA would be ineffective.”
Id. at 175.
The Second Circuit also explained that in enacting SORNA,
Congress intended to establish a nationwide system requiring the
registration of sex offenders, to ensure that “sex offenders
could not avoid all registration requirements just by moving to
another state.” Id. (quoting United States v. Guzman, 591 F.3d
83, 91 (2d Cir. 2010)). Additionally, by requiring a sex
offender to register within three business days of relocating
his place of abode, Congress has enabled the authorities where
the offender has relocated to ask pertinent questions about the
offender’s future plans. Id.In the present case, Bruffy informed the jurisdiction he
was departing that he intended to be transient in one state, but
was found several weeks later in a different state where he had
lived for an extended period of time without registering with
the authorities. We conclude that the statute is not
unconstitutionally vague as applied to the facts in Bruffy’s
case.
12
The plain language of the enforcement statute provides that
whoever “knowingly fails to . . . update a registration as
required by” SORNA is subject to prosecution. 18 U.S.C. §
2250(a)(3). Between January 13, 2009, and February 5, 2009,
Bruffy lived in the Belle Haven apartment almost every day.
Although he did not have unrestricted access to the Belle Haven
apartment, and did not purport to settle there with any
permanence, his tenure there was ongoing during that period.
Additionally, while Bruffy did not live in the Belle Haven
apartment between February 5, 2009 and February 15, 2009, he
returned there on a daily basis and occasionally lived in his
car in a parking lot behind the apartment. Thus, while Bruffy
may have been “transient” during the period between January 13,
2009 and February 15, 2009, Bruffy was not “in transit” during
this time. That is to say, Bruffy was not merely passing
through the Belle Haven area in uninterrupted travel, which
would pose a question quite different than the one we face here.
For that month, Bruffy was transient in a defined
jurisdiction. To the exclusion of any other location, Bruffy
habitually lived in the Belle Haven area of Fairfax County,
Virginia. Thus, regardless of the ultimate destination that
Bruffy may have contemplated when leaving Florida, a transient
person of ordinary intelligence would have recognized after four
weeks of living in and around the Belle Haven area of Fairfax
13
County, Virginia, that he was habitually living there and was
required by SORNA to update his registration information.
Therefore, we conclude that the word “resides,” as used in the
language of SORNA’s registration requirements, does not render
the enforcement statute unconstitutionally vague when applied to
Bruffy during the one month period at issue.
2.
We now consider Bruffy’s argument that SORNA’s use of the
word “resides” is so vague that it will likely lead to arbitrary
or discriminatory enforcement. Because Bruffy does not offer a
substantive analysis in support of this contention, we cannot
address his argument in great detail. However, our review of
the language of SORNA in the context of the facts of this case
satisfies us that arbitrary or discriminatory enforcement is not
a meaningful concern.
The only persons subject to the enforcement statute are sex
offenders required to register under SORNA. SORNA provides an
offender three days following relocation to register. 42 U.S.C.
§ 16913(c). Given the narrow class of persons subject to the
statute, the clearly defined timeframe before enforcement may
commence, and the facts surrounding Bruffy’s case, enforcement
in this case was consistent with the “core concerns” underlying
SORNA and did not lead to arbitrary or discriminatory
enforcement. See Dickerson v. Napolitano, 604 F.3d 732, 749 (2d
14
Cir. 2010) (holding in “as applied” challenge that, even where
enforcement guidelines may not have been clear in hypothetical
situations, the actions of the defendants were in clear
violation of the statute). Accordingly, we conclude that the
language of SORNA provides sufficient guidance to withstand
Bruffy’s vagueness challenge.
B.
Bruffy next argues that the evidence presented was
insufficient to support his conviction. He contends that the
stipulated facts do not establish that he resided in Virginia,
within the meaning of SORNA’s registration requirements.
When examining the sufficiency of the evidence, an
appellate court must affirm the district court’s judgment if
“any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” United States
v. Poole, 640 F.3d 114, 121 (4th Cir. 2011) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)). This standard is met when
there is “substantial evidence” in the record, viewed in the
light most favorable to the government, to support the district
court’s judgment. Id.Bruffy asserts that he complied with SORNA by giving notice
to Florida that he would be transient upon leaving Florida. He
contends that this fact distinguishes him from the defendant in
Voice, who failed to inform any authorities of his relocation.
15
622 F.3d at 873-74. He also argues that he complied with
SORNA’s requirements to the extent that he was able, and that he
cannot be required to satisfy additional reporting obligations
not contained in the statute. We disagree with Bruffy’s
arguments.
Although Bruffy is correct that his situation is not
identical to that of the defendant in Voice, the similarities
are nevertheless instructive. Like the defendant in Voice,
Bruffy left the location where he last had registered, began
habitually living in a new location, and did not provide the
authorities in the jurisdiction in which he was arrested any
notice that he was habitually living there. Voice, 622 F.3d at
874-75. Also like the defendant in Voice, Bruffy had not yet
decided that the location in which he was arrested was the
location where he intended to reside permanently. Id. Thus,
under circumstances similar to those presented in this case, the
Eighth Circuit held that there was sufficient evidence to find
that a transient offender violated SORNA.
We reach the same conclusion here. We must affirm Bruffy’s
conviction if any rational fact finder, here a federal district
judge, could have found that Bruffy violated the law.
Certainly, it is possible that when Bruffy initially made plans
to stay at the Belle Haven apartment, he harbored no intent to
remain there, habitually or permanently. But, we cannot say
16
that a rational trier of fact could not conclude that Bruffy
later developed the intent to remain in Belle Haven for some
indefinite period of time such that he was required by SORNA to
update his registration status. Indeed, the stipulated facts
demonstrate that the day after his arrest in this case, Bruffy
himself expressed an interest in moving into a newly vacant room
in the Belle Haven apartment. That fact, in combination with
the facts that Bruffy spent most nights and some portion of
nearly every day in or around Belle Haven between January 13 and
February 15, 2009, constitute sufficient evidence for us to
affirm Bruffy’s conviction.
In effect, Bruffy’s argument would reduce to a nullity the
statutory obligation of a transient offender to update his SORNA
registration. The act of labeling oneself as a transient upon
departing a particular state does not provide an offender a
license to relocate to an unspecified location. Contrary to the
form that he had filed with the Florida authorities, Bruffy was
not transient in Edgewater, Maryland, nor had he ever been by
the time he was arrested on February 15, 2009. Thus, Bruffy was
required to update his registration information, because his
residence no longer conformed to the information he earlier had
provided to the SORNA registry. See Van Buren, 599 F.3d at 175.
Instead, in violation of this registration updating requirement,
Bruffy had terminated his Florida residence and had not provided
17
accurate information regarding his whereabouts for an entire
month, effectively evading the requirements of SORNA.
Therefore, we conclude that the evidence was sufficient to
support Bruffy’s conviction under the enforcement statute.
III.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
18
GREGORY, Circuit Judge, concurring in part and dissenting in
part:
While I agree with the majority that SORNA is not
unconstitutionally vague as applied to Bruffy, * I would hold that
*
Unlike the majority, I do not believe that we must find
that Bruffy habitually lived in the Belle Haven region of
Alexandria, Virginia, to find that the statute is not
unconstitutionally vague as applied to Bruffy.
To be constitutional, “a penal statute [must] define the
criminal offense [1] with sufficient definiteness that ordinary
people can understand what conduct is prohibited and [2] in a
manner that does not encourage arbitrary and discriminatory
enforcement.” Skilling v. United States, 130 S. Ct. 2896, 2927-
28 (2010) (quoting Kolender v. Lawson, 461 U.S. 352, 357 (1982),
alterations in Skilling); see also City of Chicago v. Morales,
527 U.S. 41 (1991) (finding a loitering ordinance
unconstitutionally vague because it “fails to give the ordinary
citizen adequate notice of what is forbidden and what is
permitted”).
There are objective criteria that an ordinary person would
understand to be indicators of whether she “habitually lives” in
a particular location. Some indicators include whether that
person is currently owning or renting a living space, where the
defendant keeps her possessions, where she intends to return to
each night, and so forth. That there is a disagreement here as
to whether the government has met its burden in proving that
Bruffy habitually lived in Belle Haven, Alexandria, Virginia, is
beside the point. What’s relevant is that there are easily
understandable criteria that an ordinary person could utilize to
assess her behavior under the statute.
Nor does the statute encourage arbitrary or discriminatory
enforcement. The difference with Morales is informative.
Morales held that a loitering statute was unconstitutional
because police officers had to determine whether someone was
standing on a street with no “apparent purpose” and such a term
lacked objective indicia to guide enforcement. 527 U.S. at 56-
59. When determining whether someone “resides” at a particular
location, again, a series of objective factors can be taken into
consideration, as recounted above. The inquiry is certainly
less subjective than determining the difference between a
(Continued)
19
the government has not met its burden of proof in this case, and
I would vacate Bruffy’s conviction.
I.
SORNA states that whoever “knowingly fails to . . . update
a registration as required by” SORNA is subject to prosecution.
18 U.S.C. § 2250(a)(3). SORNA requires that an offender update
his registration in those jurisdictions “where the offender
resides, where the offender is an employee, and where the
offender is a student.” 42 U.S.C. § 16913(c). No contention is
made that the latter two categories are at issue. Unlike the
majority, however, I would hold that Bruffy did not “reside” in
Virginia for purposes of SORNA as a matter of law.
The disagreement boils down to an interpretation of
“resides,” which the statute defines as “the location of the
individual’s home or other place where the individual habitually
lives.” Id. § 16911(13). Although Bruffy was certainly living
in the northern Virginia, D.C. metropolitan, and southern
Maryland region for the disputed time period, Bruffy did not
“habitually live” in any one of these areas. His duty to update
his SORNA registration was therefore never triggered, and there
person’s residence and domicile -- a longstanding distinction in
our jurisprudence.
20
cannot be sufficient evidence to convict him of a SORNA
violation.
There is no suggestion that Bruffy did not comply with the
updating provision when he left Florida. Because he was no
longer going to habitually live in Florida, he was required to
notify the jurisdiction he was leaving within three business
days. 42 U.S.C. § 16913(c). Bruffy complied with that
requirement by noting that he would be transient in the
Edgewater, Maryland region, which is where he intended to move.
But because he did not have a permanent address -- a new place
where he would habitually live -- Bruffy wrote that he would be
“transient.” The majority doesn’t say that he violated SORNA
when he left Florida; instead, the violation supposedly came
after he had spent some nights in Alexandria.
Furthermore, even though Bruffy had no residence, according
to the majority he was supposed to appear in person at a
jurisdiction involved and update his registration. The statute
tells us that even “jurisdiction” is defined with reference to
“where the offender resides, where the offender is an employee,
and where the offender is a student.” Id. § 16913(a), (c).
Again, under the statute we cannot even say that Bruffy could
have reported to a Virginia jurisdiction without first
establishing that Bruffy in fact habitually lived in Virginia.
21
Even though I would find that the definition of “habitually
lives” is not so vague as to be unconstitutional, the definition
is not pellucid. The Department of Justice (“DOJ”) has issued
guidelines to assist jurisdictions in understanding and
implementing SORNA. The guidelines define “habitually lives” as
“any place in which the sex offender lives for at least 30
days.” National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. 38,030, 38,062 (July 2, 2008). The
guidelines admit that “[d]efining changes in such matters as
residence and employment may present special difficulties in
relation to sex offenders who lack fixed residence or
employment.” Id. at 38,065. The guidelines also state that
jurisdictions are not required to treat as a change in residence
every time that a sex offender sleeps on a different park bench,
and the guidelines specify that a transient offender can comply
with the statute by providing a description of the area in which
she habitually lives. Id. at 38,030, 38,055, 38,065. While we
are not bound by the DOJ guidelines, I would find their 30-day
benchmark persuasive given that the meaning of “habitually
lives” is ambiguous and subject to interpretation. See
Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000) (deferring
to agency guidelines inasmuch as they are persuasive).
Whatever “habitually lives” may mean, it is clear to me
that from February 5, 2009, to February 15, 2009, when Bruffy
22
lived in his car, he had no fixed address, and he did not
habitually live anywhere. According to the jointly stipulated
facts, in that time period, Bruffy “slept and lived in his car
at various locations in Northern Virginia (Belle Haven region),
Washington D.C., and Maryland.” J.A. 100. Likewise, from
January 13, 2009, to February 5, 2009, while Bruffy spent
“almost every night” at the apartment, there were nonetheless
“approximately a few” nights where he did not; he “stayed for
approximately a few days at his uncle’s residence in Waldorf,
Charles County, Maryland.” J.A. 100. Bruffy’s 23-day, non-
continuous, stay at the Belle Haven apartment does not meet the
30-day standard recounted in the DOJ guidelines.
Under the DOJ guidelines, the 30-day benchmark for
“habitually lives” “does not mean that the registration of a sex
offender who enters a jurisdiction to reside may be delayed
until after he has lived in the jurisdiction for 30 days.”
National Guidelines for Sex Offender Registration and
Notification, 73 Fed. Reg. at 38,062. In other words, a 30-day
stay is sufficient, but not necessary to constitute “habitually
living.” Earlier registration is required when “a sex offender
. . . enters a jurisdiction in order to make his home or
habitually live in the jurisdiction.” Id. (emphasis added).
Importantly, the government does not contend that Bruffy
intended to live at the Belle Haven apartment. When Bruffy left
23
the Belle Haven apartment, he took all of his possessions with
him. There was no address to which he had a legal right to
return. And all the while, the stipulated facts show that “with
respect to the defendant’s future plans, [Bruffy’s roommate]
felt that everything revolved around Maryland. Defendant tried
to find work with someone he used to work for in Maryland, and
spoke generally about living in Maryland and Pennsylvania, where
his son and sister lived.” J.A. 100. Bruffy did not intend to
return to Belle Haven. Whether under the DOJ guidelines’ 30-day
theory or its intent-based theory, Bruffy cannot be convicted of
the instant SORNA offense.
II.
Even if I were to conclude that the DOJ regulations are not
persuasive, I would find that under the plain language of the
statute, Bruffy could not be convicted for the instant SORNA
violation. First, as already noted, the 23-day period, even if
considered to be unbroken by Bruffy’s stay in Maryland, does not
rise to the 30-day period suggested by the DOJ guidelines to
constitute “habitually lives,” and so it provides some evidence
that Bruffy, under a plain-meaning theory, did not “habitually
live[]” in Alexandria, Virginia. See id. at 38,062. Second, as
discussed above, Bruffy did not intend to return to the Belle
Haven apartment. A lack of intent to return to a location tends
24
to show one does not habitually live in that location. Third,
the circumstances surrounding his stay in the apartment likewise
demonstrate that he did not habitually live there as a matter of
law.
For most people, breaks in sleeping arrangements -- like
Bruffy’s stay at his uncle’s residence -- would be unremarkable.
But the backdrop for Bruffy is a situation of instability. The
undisputed facts show that Bruffy spent most of the nights in
that date range at the Belle Haven apartment, where he would
shower, eat his meals (which he paid for and prepared), and
carry his belongings (including a blanket and a pillow) to and
from his car daily. He didn’t have a key to the apartment; he
didn’t receive calls there; and he informed the residents of his
return to the apartment each day so that they could let him into
the apartment. Bruffy obtained advance permission to stay at
the Alexandria apartment, although it was understood that this
was “a week-by-week situation” because Bruffy intended to rent
his own residence in Maryland as soon as he got a job.
The key to the plain-language analysis is the word
“habitually.” There is nothing habitual about Bruffy’s living
situation. It is true that one of the occupants believed Bruffy
could stay “a couple of weeks until [he] became situated.” Id.
While a stay of a couple of weeks might rise to the level of
“resides” and “habitually lives,” under the plain meaning
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definition (though likely not under DOJ’s guidelines), this was
clearly not such a case. Bruffy had called in advance to
determine whether he could stay at the apartment, but no time
frame was discussed for how long he could stay. It appears that
he knew he could be refused entry at the Alexandria apartment
any day. Bruffy knew that his stay was not contingent solely on
whether he could find a job and an apartment of his own, but
also upon the daily consent of the Alexandria apartment tenants.
A situation so unstable cannot be termed habitual.
III.
As the majority notes, the federal case that comes the
closest to the present facts is United States v. Voice, 622 F.3d
870, 873 (8th Cir. 2010), in which a sex offender registered at
a halfway house in Sioux Falls, South Dakota, left Sioux Falls,
and relocated to Fort Thompson, South Dakota. While the court
refused to address “whether some travelers are so transient that
a jury could not reasonably find a change of residence during
extended travels,” the court found that the evidence presented
to the jury was sufficient to convict Voice. Id. at 874.
While the facts of Voice are similar to the present case,
they are distinguishable. After moving to Fort Thompson, Voice
first stayed for ten days at a friend’s house, where he would
receive mail, eat dinner, and shower; Voice then slept on a
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cement slab near an abandoned comfort station in Fort Thompson,
where he kept his belongings. Id. at 873-74. Voice habitually
lived in the Fort Thompson area for two months -- well beyond
the 30-day DOJ guidelines -- without updating his registration
to show that he had left the Sioux Falls area. Most
importantly, Bruffy updated his registration to note he would be
transient when he left Florida. Furthermore, Bruffy spent some
nights in Alexandria but other nights in Maryland over a 23-day
period, then he spent a few nights in his car in the
metropolitan D.C. area. Another telling indicator is that Voice
kept his possessions in the comfort station -- a fixed location
to which he returned nightly to sleep -- whereas Bruffy kept his
in his car.
More on point are a number of state court cases that have
found insufficient evidence to convict transient sex offenders
under state analogues to SORNA. In Jeandell v. State, 910 A.2d
1141 (Md. 2006), the Maryland Court of Appeals rejected the
lower court’s interpretation of “residence,” which the district
court found to mean “living location.” Id. at 1144. The court
found that the defendant, a homeless man, who was “staying
wherever he could,” could not be convicted under the state’s
sex-offender registration statute. Id. at 1144-45.
Particularly relevant is Twine v. State, 910 A.2d 1132 (Md.
2006), which also vacated a conviction of a homeless man,
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stating that “residence” only exists if the registrant “has a
fixed location at which the registrant is living, and to which
the registrant intends to return upon leaving it.” Id. at 1140;
see also Santos v. State, 668 S.E.2d 676, 679 (Ga. 2008) (sex
offender registration statute unconstitutionally vague as
applied to homeless offender because statute requires a street
or route address). During the disputed dates, Bruffy was
“staying wherever he could,” Jeandell, 910 A.2d at 1144-45, and
he did not have a “fixed location at which he was living and to
which he intended to return upon leaving it,” Twine, 910 A.2d at
1140.
IV.
The majority is correct about Bruffy’s actions in one
respect. He certainly could have done more. He could have
changed his registration to more accurately reflect the
geographic area in which he spent the majority of the time. But
even though his actions did not constitute best practices,
Bruffy complied with SORNA because his duty to update his
registration was never triggered. What’s left is the conclusion
that Bruffy’s only crime was being a homeless sex offender.
Whether analyzed under the DOJ guidelines or the plain-
meaning of the statute, I would find that Bruffy did not
habitually live in the Belle Haven region of Alexandria,
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Virginia, from January 13, 2009, until February 5, 2009, and
therefore I would also find that his duty to update his
registration under SORNA was never triggered. I respectfully
dissent.
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