     Case: 09-51108 Document: 00511420475 Page: 1 Date Filed: 03/22/2011




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

                                                 FILED
                                                                           March 22, 2011

                                       No. 09-51108                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

LEROY LEE BYRD,

                                                   Defendant - Appellant




                    Appeal from the United States District Court
                         for the Western District of Texas
                             USDC No. 3:08-CR-1567-1


Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Leroy Lee Byrd was indicted on one count of failure to register
as a sex offender in violation of 18 U.S.C. § 2250. The district court denied Byrd’s
motion to dismiss the indictment on multiple grounds, and conducted a bench
trial on stipulated facts. After denying Byrd’s post-trial motion for a judgment
of acquittal, the district court found Byrd guilty and subsequently sentenced him
to 24 months’ imprisonment. Byrd timely appealed. We AFFIRM.



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                        FACTS AND PROCEEDINGS
      The stipulated facts reveal the following: Byrd is a two-time sex offender.
In 1979, he was convicted of two counts of Attempted Criminal Sexual
Penetration in New Mexico. In 1989, he was convicted of Rape in the Third
Degree in Washington. Byrd last registered as a sex offender with the Arizona
Department of Public Safety in 2004. When he did so, he acknowledged, inter
alia, that he was required to register as a sex offender for life, to notify the
Sheriff of the county in which he is registered within 72 hours of moving out of
the county, and that if he relocated to another state, he must comply with the
registration requirements of that state.
      Between July 3, 2007, and January 8, 2008, Byrd traveled, at least twice,
across state lines, from New Mexico to Texas. On January 10, 2008, Byrd rented
an apartment in El Paso. On February 3, 2008, Byrd was arrested by the El Paso
Police Department (“EPPD”), who determined that Byrd had not registered with
the EPPD or any other agency in Texas. Subsequent investigation revealed that
Byrd was also not registered in New Mexico and had not updated his sex
offender registration in Arizona since initially registering in 2004.
      After a bench trial on the aforementioned stipulated facts, Byrd filed a
motion for judgment of acquittal, arguing that the government failed to prove
that Byrd knowingly failed to register under SORNA. The district court denied
this motion, found Byrd guilty, and later sentenced him to 24 months’
imprisonment. Byrd timely appealed.
                                 DISCUSSION
I.    SORNA
      The Adam Walsh Child Protection and Safety Act of 2006 became law on
July 27, 2006. Title I of the Act includes the Sex Offender Registration and
Notification Act (“SORNA”), which “establishes a comprehensive national system
for the registration of [sex] offenders.” Pub. L. No. 109-248, §§ 101-155, 120 Stat.

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587, 590-611 (2006). SORNA requires all 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.” 42 U.S.C. §
16913(a).
      The rules for initial and updated registration are as follows:
      (b) Initial registration

            The sex offender shall initially register–

                   (1) before completing a sentence of imprisonment with
                   respect to the offense giving rise to the registration
                   requirement; or

                   (2) not later than 3 business days after being sentenced
                   for that offense, if the sex offender is not sentenced to a
                   term of imprisonment.

      (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.

      (d) Initial registration of sex offenders unable to comply with
      subsection (b) of this section

            The Attorney General shall have the authority to specify the
            applicability of the requirements of this subchapter to sex
            offenders convicted before July 27, 2006 or its implementation
            in a particular jurisdiction, and to prescribe rules for the
            registration of any such sex offenders and for other categories
            of sex offenders who are unable to comply with subsection (b)
            of this section.



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42 U.S.C. § 16913.

    SORNA provides a federal criminal penalty for traveling in interstate
commerce and failing to register or update a registration:

      (a) In general – Whoever – (1) is required to register under the Sex
      Offender Registration and Notification Act . . . (2)(B) travels in
      interstate or foreign commerce . . .; 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.
      Pursuant to 42 U.S.C. § 16913(d), Congress left to the Attorney General
the discretion “to specify the applicability of the requirements of this subchapter
to sex offenders convicted before July 27, 2006. . . .” Id. Effective February 28,
2007, the Attorney General announced an interim rule that applied SORNA’s
requirements “to all sex offenders, including sex offenders convicted of the
offense for which registration is required prior to the enactment of [SORNA].”
28 C.F.R. § 72.3 (2007). The Attorney General stated that the “immediate
effectiveness of this rule is necessary to eliminate any possible uncertainty about
the applicability of the Act’s requirements . . . to sex offenders whose predicate
convictions predate the enactment of SORNA.” 72 Fed. Reg. 8894, 8896 (Feb. 28,
2007).
      The Attorney General invoked the good cause exception in the
Administrative Procedure Act (“APA”) and published § 72.3 without allowing for
notice and public comment or a thirty-day advance publication, requirements
otherwise mandated by the APA. 5 U.S.C. § 553(b)(B), (d)(3). The Attorney
General later followed up with more detailed proposed guidelines that were
subject to notice and public comment. See 72 Fed. Reg. 30210 (May 30, 2007).
This proposal included a subsection on the applicability of SORNA to pre-
enactment offenders, noting that the Attorney General had addressed this

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application in its earlier rulemaking. The final regulations on the interpretation
and implementation of SORNA became effective on July 2, 2008. See 73 Fed.
Reg. 38030 (July 2, 2008).
       We review Byrd’s legal and constitutional challenges de novo. United
States v. Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002). He also challenges
the sufficiency of the evidence against him. The standard for reviewing that
claim after a bench trial is “whether the finding of guilt is supported by
substantial evidence, i.e., evidence sufficient to justify the trial judge, as the trier
of fact, in concluding beyond reasonable doubt that the defendant is guilty.”
United States v. Turner, 319 F.3d 716, 720 (5th Cir. 2003) (quotations omitted).
II.    United States v. Carr and the Nexus Required between an
       Offender’s Interstate Travel and his Subsequent Failure to
       Register

       On June 1, 2010, after briefing in this appeal was substantially complete,
the Supreme Court issued Carr v. United States, 130 S. Ct. 2229 (2010). In Carr,
the Court held that liability under § 2250 “cannot be predicated on pre-SORNA
travel.” Id. at 2232. The Court also stated, in dicta, that “[a] sequential reading
[of the statute’s elements] . . . helps to assure a nexus between a defendant’s
interstate travel and his failure to register as a sex offender.” Id. at 2235. In
dissent, Justice Alito agreed “with the Court that there is a good argument that
§ 2250(a) should not be read to apply to . . . a case, where there is little if any
connection between the offender’s prior interstate movement and his subsequent
failure to register.” Id. at 2248 (Alito, J. dissenting).
       We solicited additional briefing from the parties on whether, in light of
Carr, § 2250 requires the nexus alluded to by the Court and whether § 2250
requires the government to prove that the purpose of a defendant’s interstate
travel was to avoid, evade, or elude a state’s registration requirements. We hold
that Carr requires that the elements of the SORNA statute must be satisfied in


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sequence: an offender must (1) be required by SORNA to register; then (2) travel
in interstate or foreign commerce; and then (3) knowingly fail to register or
update a registration as required by SORNA. We decline to read into the statute
a requirement that the government must prove that the purpose of an offender’s
interstate travel is to avoid, evade, or elude a state’s registration requirement.
      The Supreme Court has “stated time and again that courts must presume
that a legislature says in a statute what it means and means in a statute what
it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992). The
plain language of § 2250(a) does not require that the government prove that an
offender travel interstate with the specific intent to avoid a registration
requirement. “Once a person becomes subject to SORNA’s registration
requirements, which can occur only after the statute’s effective date, that person
can be convicted under § 2250 if he thereafter travels and then fails to register.”
Carr, 130 S. Ct. at 2236 (emphasis added). To determine when an offender
violates § 2250 by “fail[ing] to register or update a registration as required by
[SORNA],” we look to 42 U.S.C. § 16913, the section of SORNA that defines
“registry requirements for sex offenders.” Relevant to this case is § 16913(c),
which specifies when a sex offender who is already registered must update his
registration, and the procedure that such an offender must follow:
      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(c) (emphasis added). Thus, an offender like Byrd who is
already registered as a sex offender is not subject to liability under § 2250 for
failure to update his registration unless he travels interstate and thereafter



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changes his “name, residence, employment, or student status” without notifying
the authorities in the manner SORNA requires. Id.
        The stipulated facts reveal that Byrd was a sex offender subject to
SORNA’s requirements. Byrd traveled between New Mexico and Texas at least
twice between July 3, 2007 and January 8, 2008. On January 10, 2008, Byrd
rented an apartment, a residence change that triggers a requirement to notify
the authorities under § 16913. After Byrd was arrested on unrelated charges,
subsequent investigation revealed that Byrd had not notified the authorities as
§ 16913 requires. Section 2250’s elements have been satisfied, in sequence. The
government is not required to prove that Byrd’s interstate travel was for the
specific purpose of evading a state’s registration requirement in order to obtain
a conviction.
III.    Due Process, Commerce Clause, and Sufficiency of the
        Evidence Challenges

        Byrd asserts five challenges to his conviction under SORNA, three of
which are foreclosed by our caselaw. Byrd first asserts that because he never
received actual notice of his duty to register under SORNA, he was denied due
process under the Fifth Amendment. Byrd stipulated to knowledge of his
obligation to register as a sex offender in Arizona but argues that he was never
directly notified of his federal requirement under SORNA. He further argues
that Congress lacked the authority to enact SORNA under the Commerce
Clause. As Byrd acknowledges, both of these arguments are foreclosed by United
States v. Whaley. 577 F.3d 254, 260–64 (5th Cir. 2009) (finding that due process
was satisfied through Johnson’s knowledge of his duty to register under state
law and that SORNA is a valid exercise of Congressional power under the
Commerce Clause).
        Next, Byrd restyles his argument that he did not receive actual notice of
his duty to register under SORNA as a sufficiency-of-the-evidence challenge. As

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a panel of this court recently stated, the argument “that the Government failed
to show that [Byrd] knowingly failed to register as a sex offender or update his
registration because it failed to show that he had knowledge of the requirements
of SORNA . . . is foreclosed.” United States v. Ross, No. 09-50890, 2010 U.S. App.
LEXIS 13972, at *2 (5th Cir. July 8, 2010) (per curiam) (unpublished) (citing
United States v. Heth, 596 F.3d 255, 258 (5th Cir. 2010); Whaley, 577 F.3d at 262
n.6). See also United States v. Knezek, No. 09-50438, 2010 U.S. App. LEXIS 8585,
at *3 (5th Cir. Apr. 26, 2010) (per curiam) (unpublished) (“As the government
was not required to prove Knezek knew that he violated SORNA, and as the
evidence presented at trial supported a finding that Knezek knowingly failed to
register, his challenge to the sufficiency of the evidence is without merit.”); Heth,
596 F.3d at 258 (“Heth had the requisite notice of [his duty to register] under
Colorado law, and there is thus sufficient evidence that he knowingly failed to
register as a sex offender.”). Accordingly, we reject these challenges as
foreclosed.
IV.    APA Challenge
       Byrd also argues that the Attorney General violated the APA by
promulgating § 72.3 without notice and comment and without publishing the
rule thirty days prior to its effective date. He contends that, although the APA
allows an agency to dispense with both notice and comment and the thirty-day
waiting period requirement for good cause, 5 U.S.C. § 553(b)(B) & (d)(3), the
Attorney General lacked good cause to do so in this situation. In United States
v. Johnson, No. 09-60823, ____ F.3d _____ (5th Cir. Feb. 4, 2011), the Court
agreed with these contentions.1 The Court also, however, held that both APA


       1
         The Supreme Court recently granted a writ of certiorari on the question of whether
a petitioner “ha[s] standing under [SORNA] to raise claims concerning the Attorney General’s
interim rule.” Petition for Writ of Certiorari at i, United States v. Reynolds, No. 10-6549 (U.S.
filed Sept. 14, 2010), appeal from 380 F. App’x 125 (3d Cir. 2010), cert. granted 79 U.S.L.W.
3248 (2011). In Johnson, this court held that appellants raising challenges to the Attorney

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violations were “harmless in the particular circumstances of th[at] case.” Id. at
*31. For the reasons set forth in Johnson, we hold that the Attorney General’s
APA violations were also harmless error under the circumstances presented by
Byrd.
        Like the defendant in Johnson, Byrd was not prejudiced by the Attorney
General’s failure to comply with the thirty-day waiting period requirement. Had
the Attorney General complied with the thirty-day notice provision when issuing
§ 72.3, the rule would have been effective on March 30, 2007. “If [a convicted sex
offender] engaged in interstate travel and failed to register after that date, his
actions would properly violate the rule regardless of whether the Attorney
General had good cause to bypass the thirty-day notice.” Id. at *31–32. In this
case, the stipulated facts upon which Byrd was convicted reveal that he traveled
across state lines “at least two” times “between July 3, 2007 and January 8,
2008.” (R. 299.) He was not indicted until February 2008. “Even if the Attorney
General lacked good cause to waive [the thirty-day notice provision in] § 553(d),
[Byrd] was not prejudiced.” Id. at *32.
        Byrd was also not prejudiced by the Attorney General’s failure to provide
a notice and public comment period. He neither “proposes comments he would
have made during a comment period nor did he choose to involve himself in the
post-promulgation comment period. [Byrd] does not allege that he participated
in the Attorney General’s subsequent rulemaking process that crafted
regulations regarding the more detailed provisions of SORNA, in which the
Attorney General also considered the retroactivity of SORNA, free of APA




General’s interim rule do have standing under SORNA. No. 09-60823 at *25. Consistent with
this court’s usual practice, we resolve Byrd’s appeal based on current law. See, e.g., United
States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008).


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error.2 “ Id. at *36. Byrd also “had constructive notice that the Attorney General
would apply SORNA to pre-enactment offenders when the Attorney General
issued notice for those later guidelines in May 2007, before [he] crossed
interstate lines and subsequently failed to register.” Id. “Because the Attorney
General’s rulemaking process addressed the same issues raised by [Byrd] and
because [Byrd] ‘makes no showing that the outcome of the process would have
differed . . . had notice been at its meticulous best,’” we hold, as in Johnson, that
“it is clear that the Attorney General’s APA violations were harmless error” as
applied to Byrd. Id. at *37. (citing Friends of Iwo Jima v. Nat’l. Capital Planning
Comm’n, 176 F.3d 768, 774 (4th Cir. 1999) (Wilkinson, J.)).
V.    Fundamental Right to Travel
      Finally, Byrd contends that SORNA violates his fundamental right to
“enter and to leave another state.” Saenz v. Roe, 526 U.S. 489, 500 (1999). In
Saenz, the Court described the right to travel as protecting: (1) “the right of a
citizen of one State to enter and to leave another State,” (2) the “right to be
treated as a welcome visitor rather than an unfriendly alien when temporarily
present in the second State,” and (3) “the right to be treated like other citizens
of that State” if one chooses to become a permanent resident. 526 U.S. at 500. In
Shapiro v. Thompson, the Court “recognized that the nature of our Federal
Union and our constitutional concepts of personal liberty unite to require that
all citizens be free to travel throughout the length and breadth of our land
uninhibited by statutes, rules, or regulations which unreasonably burden or
restrict this movement.” 394 U.S. 618, 629 (1969) (emphasis added). Statutes




      2
         See 73 Fed. Reg. 38030, 38036 (July 2, 2008). In response to comments about
retroactivity, the Attorney General stated that “no changes have been made in the final
guidelines relating to retroactivity based on comments alleging an adverse effect on sex
offenders.” Id.

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that unreasonably burden the right to travel will be struck down unless
“necessary to promote a compelling government interest.” Id. at 634.
      Two other circuits have addressed the issue of whether SORNA implicates
the fundamental right to travel and both have concluded that it does not. See
United States v. Shenandoah, 595 F.3d 151, 162 (3d Cir. 2010) (“There is simply
no Constitutional violation. Moreover, moving from one jurisdiction to another
entails many registration requirements required by law which may cause some
inconvenience, but which do not unduly infringe upon any one’s right to travel.”);
United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009) (“The requirement
to update a registration under SORNA is undoubtedly burdensome; however, the
government’s interest in protecting others from future sexual offenses and
preventing sex offenders from subverting the purpose of the statute is
sufficiently weighty to overcome the burden. This statute does not violate
Ambert’s right to travel.”).
      We join our sister circuits and hold that SORNA’s registration
requirements do not implicate the fundamental right to travel of convicted sex
offenders because nothing in the statute precludes an offender from “enter[ing]
or leav[ing] another state,” being “treated as a welcome visitor. . . . in the second
State,” or being “treated like other citizens of that State” if the offender chooses
to permanently relocate. Saenz, 526 U.S. at 500. Although Byrd styles his
SORNA obligations as a “lifelong, federally imposed, restriction on his right to
move from state to state,” nothing in SORNA places any restriction on Byrd’s
movement from state to state. Unlike the traditional litigant in right-to-travel
cases, Byrd does not argue that he is treated differently than any other person
because he is a new or temporary resident in another state or that he is not
allowed to enter or leave a state. Instead, Byrd argues that “the only special
value of SORNA’s punitive provision at the present time is to confer federal
jurisdiction over a state violation” and “the restriction SORNA imposes is [not]

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strictly related to any federal purpose.” But the fact that no provision of SORNA
“creates any federal penalty for failing to register while remaining in a state,”
see Whaley, 577 F.3d at 260, does not equate to a violation of Byrd’s right to
travel. SORNA does not burden, much less unreasonably burden, Byrd’s
fundamental right to travel as defined by the Court in Saenz. Accordingly, we
reject Byrd’s final challenge to his SORNA conviction.
                                CONCLUSION
      The district court’s judgment is AFFIRMED.




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