                                                                               FILED
                                                                   United States Court of Appeals
                                       PUBLISH                             Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       April 26, 2018

                                                                       Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                         Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-5048

ISIAH BERNARD ADAMS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                         (D.C. No. 4:13-CR-00132-GKF-1)
                       _________________________________

Submitted on the briefs:*

Barry L. Derryberry and William Patrick Widell, Jr., Assistant Federal Public Defenders,
Tulsa, Oklahoma for Defendant-Appellant.

Kevin C. Leitch, Assistant United States Attorney, (R. Trent Shores, United States
Attorney with him on the brief) Tulsa, Oklahoma, for Plaintiff-Appellee.
                        _________________________________

Before HARTZ, SEYMOUR, and PHILLIPS, Circuit Judges.
                  _________________________________

HARTZ, Circuit Judge.
                         _________________________________

*
  After examining the briefs and appellate record, this panel has determined unanimously
to honor the parties’ request for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral
argument.
       One of the conditions of supervised release for Defendant Isiah Bernard Adams

was that he comply with the Sex Offender Registration and Notification Act (SORNA),

34 U.S.C. §§ 20911–20932.1 The United States District Court for the Northern District

of Oklahoma found that Defendant, who was homeless at the time, had violated that

condition by failing to update his SORNA registration within three days of changing his

residence to Tulsa. He challenges the court’s finding, arguing on appeal that the

government offered no evidence that he had established his residence in Tulsa for

SORNA purposes by residing there for 30 days or more. Exercising jurisdiction under 28

U.S.C. § 1291, we hold that there was sufficient evidence and affirm.

       I.     BACKGROUND

       Defendant pleaded guilty in 2014 for failing to register as a sex offender. He was

sentenced to 21 months in prison, followed by a five-year term of supervised release,

which eventually began in November 2015. One condition of his supervised release was

that he “comply with the requirements of [SORNA].” R., Vol. I at 10.

       In January 2017, Sharla Belluomo, a Tulsa-based probation officer supervising

Defendant, filed a petition (the Petition) alleging five violations of the terms of his

supervised release. The district court held a revocation hearing on April 5, 2017.

Defendant stipulated to four of the alleged violations but denied the allegation that he had

violated SORNA by “fail[ing] to update his registration status when he changed

1
 On September 1, 2017, SORNA’s placement within the U.S. Code shifted from 42
U.S.C. §§ 16911–16929 to its present placement in Title 34. Both parties’ briefs refer to
Title 42, but we will cite SORNA provisions in their present location.


                                              2
residences in July 2016.” Id. at 14. He claimed that he had “just found . . . out” that

homeless people could register as such under SORNA, and that people at a court building

had told him that homeless people could not register. R., Vol. III at 12. In response,

Belluomo testified that in July or August 2016, Defendant had returned to Tulsa after

living in a facility in Oklahoma City under a “public law placement” because of a state

failure-to-pay charge. Id. at 22. According to Belluomo, after Defendant reported that he

was homeless, she had instructed him to “register as homeless,” and he had

acknowledged the need to do so and “told [her] that he was able to register weekly.” Id.

at 19. She further testified that before she submitted the Petition, she had been informed

by the officer overseeing the Tulsa Police Department’s sex-offender registry that

Defendant had never registered, and had been informed by the person overseeing the state

registry that Defendant had last registered in July 2016 in Oklahoma City.

       The district court determined that Belluomo was credible and Defendant was not.

It thus found that Defendant had failed to comply with SORNA. The court sentenced

Defendant (based on all five violations alleged in the Petition) to 18 months in prison and

an 18-month term of supervised release. Apparently believing that his sentence would be

lower if there were no finding of a SORNA violation, Defendant appeals the finding.

       II.    ANALYSIS

       Defendant argues in this court that there was no evidence that he changed his

residence to Tulsa for SORNA purposes. He concedes that he did not raise this argument

below, so we review only for plain error. See United States v. Rios-Morales, 878 F.3d

978, 987 (10th Cir. 2017). He must therefore show “(1) error, (2) that is plain, which (3)


                                             3
affects [his] substantial rights, and which (4) seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotation marks omitted). In our

view, he has failed even to show error.

       To assess Defendant’s argument, we begin with a review of his legal obligations.

Under SORNA, “[a] sex offender shall register, and keep the registration current, in each

jurisdiction where the offender resides . . . .” 34 U.S.C. § 20913(a). The Act defines

resides to mean “the location of the individual’s home or other place where the individual

habitually lives.” Id. § 20911(13). To keep the registration current, “[a] sex offender

shall, not later than 3 business days after each change of . . . residence . . . , appear in

person in at least 1 jurisdiction . . . and inform that jurisdiction of all changes in the

information required for that offender in the sex offender registry.” Id. § 20913(c).

Under 34 U.S.C. § 20914(a)(3), that information includes “[t]he address of each

residence at which the sex offender resides or will reside.”

       As authorized by SORNA, see id. § 20912(b), the Attorney General has issued

guidelines for interpretation of the statute. The guidelines include a thorough discussion

of the statute’s application to homeless persons. Section VIII recognizes that “[r]equiring

registration only where a sex offender has a residence or home in the sense of a fixed

abode would be too narrow to achieve SORNA’s objective of ‘comprehensive’

registration of sex offenders, because some sex offenders have no fixed abodes.” The

National Guidelines for Sex Offender Registration and Notification, 73 Fed. Reg. 38,030,

38,061 (July 2, 2008) (SORNA Guidelines) (citation omitted). “For example,” it notes,

“a sex offender may be homeless, living on the street or moving from shelter to shelter, or


                                                4
a sex offender may live in something that itself moves from place to place, such as a

mobile home, trailer, or houseboat.” Id. The section then explains:

               [SORNA § 20911(13)] accordingly defines “resides” to mean
               “the location of the individual’s home or other place where
               the individual habitually lives.” This entails that a sex
               offender must register . . . [i]n any jurisdiction in which he
               has his home; and [i]n any jurisdiction in which he habitually
               lives (even if he has no home or fixed address in the
               jurisdiction, or no home anywhere).

Id.

        Section VIII also addresses the meaning of habitually lives. It observes that the

term is not defined in the statute and “[a]n overly narrow definition would undermine the

objectives of sex offender registration and notification under SORNA.” Id.2 The term

therefore “should be understood to include places in which the sex offender lives with

some regularity, and with reference to where the sex offender actually lives, not just in

terms of what he would choose to characterize as his home address or place of residence


2
    The Guidelines illustrate the point with an example:

               [C]onsider the case of a sex offender who nominally has his
               home in one jurisdiction—e.g., he maintains a mail drop
               there, or identifies his place of residence for legal purposes as
               his parents’ home, where he visits occasionally—but he lives
               most of the time with his girlfriend in an adjacent jurisdiction.
               Registration in the nominal home jurisdiction alone in such a
               case would mean that the registration information is not
               informative as to where the sex offender is actually residing,
               and hence would not fulfill the public safety objectives of
               tracking sex offenders’ whereabouts following their release
               into the community.
SORNA Guidelines at 38,061–62.




                                              5
for self-interested reasons.” Id. at 38,062. The Guidelines then adopt the interpretation

that “a sex offender habitually lives in the relevant sense in any place in which the sex

offender lives for at least 30 days.” Id. This Section also sets forth the timely-reporting

requirement of the statute, saying that “a sex offender who changes his place of residence

within a jurisdiction must be required to report the change within three business days.”

Id.

       Section VI describes the sort of location information that transient sex offenders

must provide. Although they have no residential address, “some more or less specific

description should normally be obtainable concerning the place or places where such a

sex offender habitually lives.” Id. at 38,055. For example, the sex offender could

provide “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) where the sex offender

stations himself during the day or sleeps at night, shelters among which the sex offender

circulates, or places in public buildings, restaurants, libraries, or other establishments that

the sex offender frequents.” Id. at 38,055–56. Such information “serves the same public

safety purposes as knowing the whereabouts of sex offenders with definite residence

addresses.” Id. at 38,056.

       Defendant relies on our opinion in United States v. Alexander, 817 F.3d 1205

(10th Cir. 2016), in which we reversed a conviction because the jury was not instructed

regarding the 30-day element of “habitually lives,” see id. at 1213–15. We recommended

the following jury-instruction language: “An offender ‘habitually lives’ in any place in

which he intends to live with some regularity, or lives for at least 30 days, even if the


                                               6
person has no home or fixed address or is homeless.” Id. at 1215. Defendant’s

contention, as we understand it, is that the evidence at his revocation hearing would not

support a finding that he resided in Tulsa for 30 days or intended to do so. We disagree.

       The government’s burden of persuasion in a revocation hearing is proof by a

preponderance of the evidence. See 18 U.S.C. § 3583(e)(3). The government’s burden

was satisfied. It was uncontested that in July 2016 Defendant had registered as a sex

offender in Oklahoma City. But then he came to Tulsa. Belluomo testified that

beginning in July or August 2016 and lasting until December, when she lost track of him,

she met with Defendant “on numerous occasions . . . in [her] office or in the community,”

R., Vol. III at 20; and in those meetings he reported that he had registered weekly as a sex

offender in Tulsa. Cf. Okla. Stat. Ann. tit. 57, § 584(G) (“Any person subject to the

provisions of the [Oklahoma] Sex Offenders Registration Act who is unable to provide a

mappable address with a zip code . . . and registers as a transient shall report in person to

the nearest local law enforcement authority every seven (7) days and provide to the local

law enforcement authority the approximate location of where the person is staying and

where the person plans to stay.”). The government did not have to provide a particular

address in Tulsa where Defendant was living. After all, the SORNA Guidelines

recognize that offenders without “fixed abodes” still need to register. SORNA

Guidelines at 38,055. The evidence was ample for the district court to infer that

Defendant was “liv[ing] with some regularity” somewhere in Tulsa. Id. at 38,062. Since

it is undisputed that Defendant never registered as a sex offender in Tulsa, the violation




                                              7
of his condition of supervised release was proved.3

       Defendant also argues that “the record does not support a finding that [Defendant]

failed to update his registration within three business days after he supposedly changed

his residence.” Aplt. Br. at 12 (capitalization omitted). But he is not disputing that he

failed to register in Tulsa. He appears to be saying only that because he did not change

his residence, he did not need to update his registration. This argument adds nothing to

the prior argument and it is no more successful the second time around.

       III.   CONCLUSION

       We AFFIRM the judgment of the district court.




3
  The government argues in the alternative that even if the evidence did not prove that
Defendant had established a residence in Tulsa, the evidence certainly showed that he had
changed his residence from his public placement in Oklahoma City, and that this change
in itself would require a new registration somewhere. We need not address this argument
because we affirm on the other ground.


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