     Case: 11-51028    Document: 00512099787      Page: 1    Date Filed: 01/03/2013




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                 Fifth Circuit

                                                                      FILED
                                                                     January 3, 2013
                                  No. 11-51028
                                                                     Lyle W. Cayce
                                                                          Clerk
UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,
v.

ERNEST EDWARD WAMPLER,

                                             Defendant - Appellant.


                 Appeal from the United States District Court
                      for the Western District of Texas


Before STEWART, Chief Judge, GARZA, and ELROD, Circuit Judges.
PER CURIAM:
      The Sex Offender Registration and Notification Act (“SORNA”) requires
a sex offender to “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.” 42 U.S.C. § 16913(a). A jury found the defendant, Ernest
Edward Wampler, guilty of failing to comply with this registration requirement.
Wampler argues that we should vacate his conviction because the district court’s
instruction to the jury erroneously defined the term “resides,” and constituted
harmful error. We find no reversible error in the district court’s instruction and,
accordingly, AFFIRM Wampler’s conviction.
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                                        I.
      Wampler was charged with (1) failing to register as a sex offender in North
Carolina in March 2009 after he moved there from Texas, and (2) failing to
register in Texas in March and April 2011 when he returned from North
Carolina. At trial, the parties stipulated that Wampler had a 2001 conviction
for sexual assault of a child and that he was therefore required to register under
SORNA.
      The government called six witnesses in support of its case. First, Michael
Jarman, an examiner for the North Carolina Department of Motor Vehicles
(“DMV”), testified about the procedures a person must follow to obtain a North
Carolina state identification card. Jarman’s testimony revealed that Wampler
obtained a North Carolina state identification card on March 20, 2009. Jarman
further explained that when an applicant seeks a state identification card, his
office must search the National Sex Offender Registry unless the applicant
states that he has resided in North Carolina for more than one year. Wampler’s
DMV record showed that, when he got his identification card, he informed the
examiner that he had lived in North Carolina for over one year. The government
also introduced testimony from Joshua Hickman, an agent with the North
Carolina State Bureau of Investigation. Hickman testified that Wampler never
registered as a sex offender in North Carolina.
      Next, the government called two Texas officials to testify, beginning with
Donna McGinnis, a retired registering agent for the Texas sex offender registry.
McGinnis explained that she would meet in person with sex offenders before
their release from prison to explain their obligation to register. Even though
McGinnis dealt primarily with Texas law, she advised offenders that it was a


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federal offense to move across state lines without registering. McGinnis further
testified that she personally met with Wampler and filled out his paperwork.
Wampler’s paperwork indicated that he expected to reside, upon release, at the
Salvation Army in Midland, Texas; or, if he decided not to live there, in the
Bronx, New York. Wampler initialed a form that informed him that he was
required to register anywhere he intended to reside for more than seven days
and had seven days to register any changes of address within Texas. The second
Texas official to testify was Vincent Castilleja, the sex offender registration
coordinator for the Texas Department of Public Safety (“DPS”). Castilleja
explained that sex offenders have a duty to register in their local jurisdictions,
which then forward the information to DPS within three days. The government
introduced DPS documents showing that on August 2, 2007, Wampler registered
his address as a hotel in Midland, Texas, and that on August 6, 2007, Wampler
indicated that he was moving to Washington, D.C. Castilleja testified that DPS
had no further documents regarding Wampler.
      The government also introduced testimony from Sharon Babcock,
Wampler’s son’s grandmother. In March 2011, Wampler called Babcock and
informed her that he was in Florida but wanted to visit his son in Midland. Soon
after this call, Wampler arrived in Midland. Babcock allowed Wampler to live
in a vacant house she owned, in return for his renovation work on it. Babcock
at one point testified that Wampler stayed in Midland for about a month, but at
another point stated that he may not have been in Midland for thirty days.
Nevertheless, Babcock kept a ledger recording money she gave to Wampler while
he was in town, and it contained entries dating from March 20, 2011, to April 4,




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2011, the day Babcock took Wampler to the bus station so that he could leave town.
      Finally, Jason Gullingsrud, a U.S. Marshal, testified that he and other
Marshals found and arrested Wampler in Magnolia, Texas.             According to
Gullingsrud, the woman who owned the trailer in which Wampler was located
told the Marshals that he had been there about a month.
      Wampler took the stand in his own defense. He testified that following his
release from prison on August 1, 2007, he did not tell the Midland police that he
was moving to Washington, D.C.; rather, he told the police that he was going to
visit friends there. He stated that he tried to register in Washington, D.C., but
was advised that registration was unnecessary because he planned to be there
fewer than seven days. Wampler testified that after leaving Washington, D.C.,
he traveled to Missouri, New Jersey, and New York. He stated that he never
lived in North Carolina, but admitted that he got a state identification card
because he needed some form of identification to cash checks. He also stated
that the address he used to obtain the North Carolina identification was that of
a friend for whom he put a bill in his name and he used the house at that
address as a place to sleep when he would pass through town. Wampler testified
that he never considered himself to be a resident of any place other than
Midland, Texas. He also admitted that in part of March and April 2011 he lived
at Babcock’s house, as she had testified, and that his stay there lasted more than
two weeks; however, he did not feel he had to register again in Midland because
he was already registered there.
      Following the close of the case and outside of the presence of the jury, the
district court explained that the Fifth Circuit Pattern Jury Instructions have no
standardized SORNA instruction. Therefore, the district court formulated an


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                                   No. 11-51028

instruction based on its review of instructions from other jurisdictions. Relevant
here, the district court’s instruction included the following definition:
      “Resides” means the location of an individual’s home or other place
      where that individual habitually lives, even if the person has no
      home or fixed address in that state or no home anywhere. Places
      where a person “habitually lives” include places in which that
      person lives with some regularity, not just the place that the person
      calls his home address or place of residence. A person may reside in
      more than one place and must include in his registration each place
      where he resides.
Wampler’s attorney objected to this definition. He argued that the district court
should instruct the jury using SORNA’s more limited definition of the term
“resides.”   The government responded that the district court’s instruction
“add[ed] a little bit of gloss” to the definition in SORNA but argued that it was
“absolutely appropriate in this case.” The district court overruled Wampler’s
objection and used the definition set out above.
      The jury found Wampler guilty on both counts charged in the indictment.
The district court sentenced Wampler to concurrent terms of thirty-eight
months’ imprisonment and twenty-five years of supervised release. Wampler
timely filed a notice of appeal.
                                        II.
                                        A.
      Generally, we review preserved error in a district court’s instruction for
abuse of discretion, affording substantial latitude to the court in describing the
law to the jury. United States v. Williams, 610 F.3d 271, 285 (5th Cir. 2010)
(citing United States v. Santos, 589 F.3d 759, 764 (5th Cir. 2009)). Under this
standard, we consider “whether the court’s charge, as a whole, is a correct
statement of the law and whether it clearly instructs jurors as to the principles
of the law applicable to the factual issues confronting them.” United States v.


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                                        No. 11-51028
Brooks, 681 F.3d 678, 697 (5th Cir. 2012) (quoting United States v. Kay, 513 F.3d
432, 446 (5th Cir. 2007)). But we review de novo an instruction that hinges on
a question of statutory construction. United States v. Wright, 634 F.3d 770, 774
(5th Cir. 2011) (citing United States v. Guevara, 408 F.3d 252, 257 (5th Cir.
2005)).1
                                               B.
       Congress enacted SORNA to establish a “comprehensive national system
for the registration of [sex] offenders.” 42 U.S.C. § 16901. To that end, SORNA
requires sex offenders to “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.”              § 16913(a).      For the purposes of this
registration requirement, “[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.”          § 16911(13).      If a sex offender changes his
residence—or his name, employment, or student status—he must within three
business days after the change “appear in person in at least 1 jurisdiction
involved . . . and inform that jurisdiction of all changes in the information
required for that offender in the sex offender registry.” § 16913(c). SORNA’s
registration obligations are criminally enforceable: A sex offender who “travels
in interstate or foreign commerce” and then “knowingly fails to register or
update a registration as required by [SORNA] shall be fined . . . or imprisoned
not more than 10 years, or both.” 18 U.S.C. § 2250(a); see Carr v. United States,



       1
         Wampler contends at some points in his brief that “the district court abused its
discretion,” while at other points he argues that the district court simply committed an “error.”
We conclude that Wampler’s challenge to the jury instruction fails under either an abuse of
discretion or de novo standard. See Wright, 634 F.3d at 774 n.2 (recognizing that a defendant’s
challenge to a jury instruction would fail under either an abuse of discretion or de novo
standard of review).

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130 S. Ct. 2229, 2236 (2010) (“Once a person becomes subject to SORNA’s
registration requirements . . . that person can be convicted under § 2250 if he
thereafter travels and then fails to register.”).
      Congress specified that “[t]he Attorney General shall issue guidelines and
regulations to interpret and implement [SORNA].”              42 U.S.C. § 16912(b).
Pursuant to this directive, the Department of Justice published comprehensive
SORNA guidelines. See The National Guidelines for Sex Offender Registration
and Notification, 73 Fed. Reg. 38,030 (July 2, 2008) (“the Guidelines”).
Regarding SORNA’s definition of “resides,” the Guidelines explain that “a sex
offender must register: [1] In any jurisdiction in which he has his home; and [2]
In any jurisdiction in which he habitually lives (even if he has no home or fixed
address in the jurisdiction, or no home anywhere).” 73 Fed. Reg. at 38,061. The
Attorney General recognized that “[t]he scope of ‘habitually lives’ in this context
is not self-explanatory and requires further definition”; therefore, the Guidelines
expound upon the proper interpretation of the term:
      “Habitually lives” . . . 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 for self-interested reasons. The specific
      interpretation of this element of “residence” these Guidelines adopt
      is that a sex offender habitually lives in the relevant sense in any
      place in which the sex offender lives for at least 30 days. Hence, a
      sex offender resides in a jurisdiction for purposes of SORNA if the
      sex offender has a home in the jurisdiction, or if the sex offender
      lives in the jurisdiction for at least 30 days. Jurisdictions may
      specify in the manner of their choosing the application of the 30-day
      standard to sex offenders whose presence in the jurisdiction is
      intermittent but who live in the jurisdiction for 30 days in the
      aggregate over some longer period of time. Like other aspects of
      SORNA, the requirement to register sex offenders who “reside” in
      the jurisdiction as defined in [42 U.S.C. § 16911(13)] is a minimum
      requirement, and jurisdictions in their discretion may require

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                                    No. 11-51028
      registration more broadly (for example, based on presence in the
      jurisdiction for a period shorter than 30 days).
Id. at 38,061–62. The Guidelines also reiterate that “a sex offender who enters
a jurisdiction in order to make his home or habitually live in the jurisdiction
must . . . register within three business days.” Id. at 38,062.
                                         C.
      Wampler argues that it was unnecessary for the district court to define
“resides” because the term is not outside the common understanding of jurors.
He further asserts that the definition the district court chose to include in the
jury instructions was erroneous because it exceeded the definition of “resides”
in SORNA itself. In response, the government argues that the definition of
resides is not necessarily unambiguous and that the district court’s instruction
was an accurate reflection of the law and fit the factual issues confronting the
jury. We find no reversible error in the district court’s instruction.
      As an initial matter, we disagree with Wampler’s contention that the
district court erred by including a definition of “resides” in its instruction. We
recognize that the Eighth Circuit held that a jury instruction omitting a
definition of “resides” was not plain error. United States v. Poitra, 648 F.3d 884,
887 (8th Cir. 2011). Moreover, Wampler is correct that a district court “need not
define specific statutory terms unless they are outside the common
understanding of a juror or are so technical or specific as to require a definition.”
United States v. Chenault, 844 F.2d 1124, 1131 (5th Cir. 1988). But at least
three considerations support the district court’s decision to include a definition
of “resides” in its instructions.
      First, the text and structure of SORNA suggest that a court should include
in its jury instructions at least the statutory definition of the term. After using
the term “resides” in § 16913(a), which establishes a sex offender’s obligation to


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                                  No. 11-51028
register, Congress could have left the meaning of that term open for
interpretation based on common understanding, but it did not.             Instead,
Congress chose to explicitly define the term in § 16911(13).          Second, the
Guidelines recognize that “[t]he notion of ‘residence’ requires definition” for the
purposes of SORNA. 73 Fed. Reg. at 38,061. Finally, in this particular case,
including a definition of “resides” clarified the law as it relates to the factual
issues that confronted the jury. See Brooks, 681 F.3d at 697–98. The charges
against Wampler focused on where he “resided,” and it was appropriate for the
district court to provide the jury with some direction regarding the meaning of
the term in this context. See id. at 697 (recognizing that “district courts ‘enjoy
substantial latitude in formulating a jury charge’” (quoting United States v.
Davis, 609 F.3d 663, 689 (5th Cir. 2010)).
      Wampler further argues that, even if some instruction defining “resides”
was permissible, the district court’s definition was flawed because it went
beyond the definition in SORNA. Again, we disagree. The district court’s
definition of “resides” consisted of three sentences:
      [1] “Resides” means the location of an individual’s home or other
      place where that individual habitually lives, even if the person has
      no home or fixed address in that state or no home anywhere.
      [2] Places where a person “habitually lives” include places in which
      that person lives with some regularity, not just the place that the
      person calls his home address or place of residence.
      [3] A person may reside in more than one place and must include in
      his registration each place where he resides.
All but the first clause of the first sentence in this three-part definition go
beyond the statutory definition of the term. Cf. 42 U.S.C. § 16911(13). But the
district court was not limited to instructing the jury with only the statutory
definition; to conclude otherwise would require a district court to ignore the
Guidelines that the Attorney General issued at the behest of Congress. See

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§ 16912(b); 73 Fed. Reg. at 38,061–62. Because the district court’s instruction
was not inconsistent with SORNA, and because Wampler failed to allege the
instruction misstated the Guidelines, we conclude there is no reversible error.2
                                         III.
      For the foregoing reasons, we AFFIRM the district court’s judgment.




      2
         We note that the second sentence in the district court’s instruction does not
mirror the Guidelines. The district court defined “habitually lives” to include places
in which a person “lives with some regularity,” but left open the question of what
constitutes sufficient regularity. The Guidelines address that issue: “[A] sex offender
habitually lives in the relevant sense in any place in which the sex offender lives for
at least 30 days.” 73 Fed. Reg. at 38,062. Even so, we need not decide whether the
district court’s omission of the thirty-day standard was erroneous because Wampler
made no argument on that basis in the district court or on appeal. See United States
v. Delgado, 672 F.3d 320, 329 (5th Cir. 2012) (en banc) (recognizing “the long-standing
rule that a defendant must make an appropriate objection at trial in order to preserve
an issue for appeal” and explaining that only “in very rare instances, [will] we . . .
appl[y] the plain-error standard to errors neither preserved below nor argued on
appeal” (citations omitted)); see also Jimenez v. Wood Cnty., Tex., 660 F.3d 841, 845
(5th Cir. 2011) (en banc) (explaining that we have limited discretion to correct an
unpreserved error in jury instructions).

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