                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                         APR 6, 2011
                                       No. 10-11599                      JOHN LEY
                                   Non-Argument Calendar                   CLERK
                                 ________________________

                            D.C. Docket No. 2:08-cr-14003-JEM-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,

                                           versus

TIMOTHY WAYNE CARVER,

lllllllllllllllllllll                                             Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Southern District of Florida
                                ________________________

                                        (April 6, 2011)


Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

         This case arose when a grand jury issued a two-count superseding
indictment against Timothy Wayne Carver. Count One alleged, in part, that

Carver enticed and attempted to entice a minor to engage in sexual activity in

violation of 18 U.S.C. § 2422(b). Count Two alleged that Carver committed the

Count One offense while being required to register as a sex offender under Federal

or other law, in violation of 18 U.S.C. § 2260A. Carver pleaded guilty to Count

One, and a jury subsequently convicted him of Count Two.1 Carver now appeals

his conviction for Count Two.

                                   I. Constitutionality

       Carver first argues that the district court erred by denying his motion to

dismiss Count Two of the indictment, challenging the constitutionality of § 2260A

on four grounds. Section 2260A imposes an enhanced penalty on defendants who

commit certain enumerated offenses, including a violation of § 2242, and who

were required by either federal or state law to register as sex offenders. Carver

argues that § 2260A: (1) is unconstitutionally vague; (2) impermissibly delegates

legislative authority over federal sentences to state authorities; (3) violates his due

process and equal protection rights; and (4) creates an unconstitutional “status

offense.” We review de novo the constitutionality of statutes and questions of


       1
          Carver initially pleaded guilty to Count One and was convicted of Count Two during a
bench trial. On appeal, we affirmed Carver’s conviction and sentence for Count One, but we
reversed and remanded on Count Two because Carver had not waived his right to a jury trial.

                                              2
statutory interpretation. United States v. Phaknikone, 605 F.3d 1099, 1107 (11th

Cir.), cert. denied, 131 S. Ct. 643 (2010).

                                   A. Vagueness

      The “vagueness” challenge is derived from the Fifth Amendment’s Due

Process Clause. United States v. Wayerski, 624 F.3d 1342, 1347 (11th Cir. 2010).

“It encompasses notions of fair warning such that people of common intellect may

understand a statute’s prohibitions and need not guess at its meaning.” Id. A

criminal statute violates due process when it does not “‘provide people of ordinary

intelligence a reasonable opportunity to understand what conduct it prohibits’” or

“‘authorizes or even encourages arbitrary and discriminatory enforcement.’” Id.

(quoting Hill v. Colorado, 530 U.S. 703, 732, 120 S. Ct. 2480 (2000)). “There is a

strong presumption that statutes passed by Congress are valid.” Id.

      Section 2260A provides:

             Whoever, being required by Federal or other law to register
             as a sex offender, commits a felony offense involving a
             minor under section [2242, et al.] shall be sentenced to a
             term of imprisonment of 10 years in addition to the
             imprisonment imposed for the offense under that provision.

Carver argues the phrase “being required by . . . other law to register as a sex

offender” is unconstitutionally vague. But Carver failed to argue that § 2260A

was unconstitutionally vague as applied to him. See id. (“Where, as in this case, a

                                          3
vagueness challenge does not involve the First Amendment, the analysis must be

as applied to the facts of the case.”).

      The unambiguous language of the statute provided Carver with clear notice

that, during the time that Florida required him to register as a sex offender, he

would be subject to enhanced penalties for additional sex crimes. A person of

ordinary intelligence would understand that an offense is committed when (1) he

commits a specified federal offense involving a minor while (2) being required to

register as a sex offender by Federal or state law. Likewise, the statute provided

clear guidelines to law enforcement. Accordingly, we do not find the statute

impermissibly vague, and we reject Carver’s vagueness challenge.

                                  B. Non-delegation

      Pursuant to the non-delegation doctrine, “‘Congress manifestly is not

permitted to abdicate or to transfer to others the essential legislative functions with

which it is constitutionally vested.’” United States v. Ambert, 561 F.3d 1202,

1213 (11th Cir. 2009) (alteration omitted) (quoting Panama Ref. Co. v. Ryan, 293

U.S. 388, 421, 55 S. Ct. 241 (1935)). We find that Congress did not

impermissibly delegate its authority to the states in enacting § 2260A. The statute,

on its face, neither allows nor requires the states or other governmental bodies to

take action, and it does not grant them any powers. It merely acknowledges that

                                           4
jurisdictions outside the federal government have some authority to require

persons to register as sex offenders. It then dictates that if a person is required to

register by such a jurisdiction, he is then subject to enhanced punishment for a

violation of specific federal crimes. Accordingly, § 2260A does not violate the

non-delegation doctrine.

                        C. Due Process and Equal Protection

      The Fifth Amendment’s Due Process Clause, as applied to the federal

government, incorporates the Fourteenth Amendment’s guarantees of equal

protection. Davis v. Passman, 544 F.2d 865, 868 (5th Cir. 1977). “We review the

constitutionality of statutes subjected to substantive due process challenge with a

high degree of deference to Congress: ‘where a statute does not discriminate on

racial grounds or against a suspect class, Congress’ judgment will be sustained in

the absence of persuasive evidence that Congress had no reasonable basis for

drawing the lines that it did.’” United States v. Tremble, 933 F.2d 925, 930 (11th

Cir. 1991) (quoting United States v. Holmes, 838 F.2d 1175, 1177 (11th Cir.

1988)). As an initial matter, Carver does not allege that § 2260A discriminates

based on race or against a suspect class, so the only question before us is “whether

there is a rational basis supporting Congress’ decision to incorporate varying state

categorizations” of what it means to be a sex offender required to register. See id.

                                           5
      Here, Congress had a rational basis for enacting § 2260A, as it protects the

public by imposing additional punishment on recidivist sex offenders. See

Ambert, 561 F.3d at 1209 (holding that federal sex-offender registration

requirements are “rationally related to Congress’ legitimate goal in protecting the

public from recidivist sex offenders”). Moreover, the enhancement depends on a

bright-line categorization—whether a state or the federal government requires a

person to register as a sex offender—thereby putting registrants on notice that if

they are later convicted for an enumerated federal offense, then they will have

enhanced penalties. See id. at 931. We therefore find that § 2260A does not

violate Carver’s due process and equal protection rights under the Fifth and

Fourteenth Amendments.

                                 D. Status offense

      Carver next argues that § 2260A violates the Fifth, Eighth, Thirteenth, and

Fourteenth Amendments. He asserts that § 2260A unconstitutionally criminalizes

his status as a sex offender by creating a category of citizens who are punished

more severely than other citizens. While Carver alleges a violation of four

constitutional amendments, he relies mainly on Robinson v. California, 370 U.S.

660, 82 S. Ct. 1417 (1962) to support his claim. In Robinson, the Supreme Court

held that “a state statute violated the Eighth and Fourteenth Amendments’

                                         6
prohibition against cruel and unusual punishment because . . .” it made “the

‘status’ of narcotic addiction a criminal offense.” Robinson, 370 U.S. at 666–67.

      Unlike the statute in Robinson, which criminalized a “status,” § 2260A does

not criminalize the status of being a sex offender. Like other recidivist statutes,

§ 2260A enhances the punishment for enumerated federal substantive offenses and

does not apply to anyone who has not committed any such offenses. Accordingly,

Carver’s argument fails.

                           II. Sufficiency of the Evidence

      To convict Carver of Count Two—a violation of § 2260A—the Government

had to prove that Carver, while “being required by Federal or other law to register

as a sex offender, commit[ted] a felony offense involving a minor” under § 2422.

Carver pleaded guilty to a violation of § 2422 and also registered as a “sexual

offender” pursuant to Florida Statute § 943.0435. Carver argues, however, that he

was not a sex offender within the meaning of § 943.0435 and that even if he was,

his conviction cannot be sustained under § 2260A because: (1) Florida was

estopped from enforcing the statute against him; (2) § 943.0435 violates the ex

post facto clause; (3) Florida failed to follow the notification provisions of the Sex

Offender and Registration Notification Act, 42 U.S.C. § 16901 (“SORNA”); and

(4) the definition of “sexual offender” under § 943.0435 is not the same as that

                                          7
under federal law, specifically SORNA.

      We review de novo the sufficiency of the evidence, viewing “the evidence

in the light most favorable to the government, with all reasonable inferences and

credibility choices made in the government’s favor.” United States v. Martinez, 83

F.3d 371, 374 (11th Cir. 1996). We also review de novo questions of statutory

interpretation. Phaknikone, 605 F.3d at 1107. When a defendant fails to raise an

issue in his motion for acquittal, we will reverse only if there is an error that is

“plain, affects [the defendant’s] substantial rights, and seriously affects the

fairness, integrity or public reputation of judicial proceedings.” United States v.

Snipes, 611 F.3d 855, 867 n.7 (11th Cir. 2010).

                                          A.

      The evidence was sufficient for a jury to reasonably conclude that Carver

was required to register under Florida law. Section 943.0435 requires anyone who

“[h]as been released on or after October 1, 1997, from the sanction imposed” for a

conviction pursuant to Florida Statute § 800.04 to register as a sex offender.

Carver stipulated that he was convicted of a violation of § 800.04. And

§ 943.0435 defines “sanction” to include parole and probation. Carver’s

contention that his sanctions post-1995 should be treated as penalties for his

probation violations, and not for his § 800.04 sex offense, are without merit.

                                           8
Accordingly, because Carver’s § 800.04 sanctions terminated on August 24, 2000,

Carver was subject to the statute’s registration requirements.

      Carver’s estoppel argument is also meritless. As a matter of law, mere

inaction, i.e., failing to enforce a statute, cannot give rise to an estoppel claim

against a state. See United States v. McCorkle, 321 F.3d 1292, 1297 (11th Cir.

2003). And § 943.0435 does not violate the ex post facto prohibition because it is

nonpunitive. See Smith v. Doe, 538 U.S. 84, 105–06, 123 S. Ct. 1140 (2003)

(upholding the Alaska Sex Offender Registration Act against an ex post facto

challenge); Houston v. Williams, 547 F.3d 1357, 1364 (11th Cir. 2008) (holding

that a Florida sex offender registration statute did not violate the ex post

facto clause because it was “not punitive, but rather regulatory” in nature).

      Carver’s arguments concerning SORNA also lack merit. First, assuming

SORNA’s notification requirements apply to the states, SORNA requires

notification “shortly before” the sex offender’s release from custody or

“immediately after the sentencing.” § 16917(a). Carver had first registered prior

to SORNA’s enactment. Moreover, the federal definition of “sex offender” is

irrelevant to Carver’s liability under § 2260A, which applies to individuals who

are required “by Federal or other law to register as a sex offender.” The phrase “or

other law” would be superfluous if the state registration laws, as argued by Carver,

                                           9
had to conform to SORNA. And even if SORNA’s definition of “sex offender”

were relevant to Carver’s liability under § 2260A, the elements of Carver’s

§ 800.04 offense would not need to include physical contact to qualify him as a

sex offender under the Act. See United States v. Dodge, 597 F.3d 1347, 1351–56

(11th Cir.) (en banc), cert. denied, 131 S. Ct. 457 (2010) (holding that a crime

whose elements and whose underlying conduct do not involve physical contact

qualify as a sex offense under SORNA).

      Thus, the Government presented sufficient evidence that Carver was

required to register under Florida law.

                                          B.

      Carver next argues that the Government failed to prove the essential

elements of the § 2260A offense. We disagree. First, the Government sufficiently

proved that § 943.0435 required Carver to register as a sex offender. Contrary to

Carver’s argument, the Government was not required to prove the elements of

Carver’s § 800.04 sex offense in order to show that this conviction brought Carver

within the requirements of § 943.0435. To qualify as a sex offender under

§ 943.0435, a person is only required, in relevant part, to have been convicted

previously under § 800.04. See Fla. Stat. § 943.0435(1)(a). Thus, because Carver

stipulated to his previous § 800.04 conviction, the Government sufficiently proved

                                          10
this prong.

      We also disagree with Carver’s contention that the Government failed to

prove that Carver was living in Florida and was not incarcerated at the time of the

Count One offense. During trial, Carver stipulated that he pleaded guilty and was

convicted of the Count One offense as set forth in the indictment. The indictment

stated that Carver committed the Count One offense in December 2007 “in St.

Lucie and Indian River Counties, in the Southern District of Florida, and

elsewhere.” The jury also knew that Carver last registered on November 21, 2007,

and a Government exhibit showed that, as of that date, Carver’s permanent address

was in Florida, he had no other permanent address, he was not on probation or

parole, and his next scheduled registration date was in May 2008. Accordingly,

even assuming that § 943.0435 applies only to those who reside in Florida and are

not incarcerated, the Government presented enough evidence for the jury to

reasonably infer that Carver did reside in Florida and was not incarcerated during

the commission of his Count One offense. See United States v. Henry, 920 F.2d

875, 877 (11th Cir. 1991) (noting that a jury may convict by drawing reasonable

inferences from circumstantial evidence, even if the evidence does not “exclude

every reasonable hypothesis of innocence”).

      Finally, Carver argues that the Government did not offer any evidence that

                                         11
the Count One offense involved a minor, as required by § 2260A. This argument

has no merit—Carver expressly stipulated that he “was convicted via a plea

agreement of committing a felony offense involving a minor.” In sum, the

Government presented sufficient evidence at trial to sustain Carver’s conviction.

                                III. Jury Instructions

      We review for abuse of discretion a court’s refusal to give a requested jury

instruction, and will find an error only “‘if the requested instruction is correct, not

adequately covered by the charge given, and involves a point so important that

failure to give the instruction seriously impaired the party’s ability to present an

effective case.’” United States v. Svete, 556 F.3d 1157, 1161 (11th Cir. 2009) (en

banc), cert. denied, 130 S. Ct. 1881 (2010) (quoting another source). We review

de novo “whether a jury instruction mischaracterized the law or misled the jury to

the prejudice of the defendant.” Id. “[W]e will not reverse a conviction on the

basis of a jury charge ‘unless the issues of law were presented inaccurately, or the

charge improperly guided the jury in such a substantial way as to violate due

process.’” United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000)

(quoting United States v. Arias, 984 F.2d 1139, 1143 (11th Cir. 1993)).

      Carver challenges the court’s rulings regarding four jury instructions. He

first challenges the court’s refusal to give an instruction: (1) “as to venue”; (2)

                                           12
regarding “the use of the conjunctive (‘and’) in the allegations” of the superseding

indictment; (3) as to all the elements of the Count Two offense, including the

elements of the underlying sex offense in Count One; and (4) on how to evaluate

the applicability of § 943.0435 to his § 800.04 conviction. He also argues the

court’s instruction on the meaning of the term “knowingly” was unnecessary and

could have confused the jury.

      Neither the court’s refusal to give certain instructions, nor the instructions

the court gave, was erroneous. First, the district court did not err by not

instructing the jury as to the Count One elements. Carver stood trial only for

Count Two and stipulated to his Count One conviction, so the jury did not have to

independently verify that his conduct violated § 2422(b). Second, the district

court committed no error regarding venue. The court instructed that an element of

the § 2260A offense was the commission of the Count One offense as set forth in

the superseding indictment. The indictment alleged that the Count One offense

occurred in the Southern District of Florida. Because the § 2260A offense was

predicated upon the Count One offense, the court adequately covered venue by

referencing Count One.

      Third, Carver’s argument regarding the conjunctive “and” in the indictment

lacks merit. Carver points to two occurrences where the indictment alleged the

                                          13
elements in the conjunctive: (1) where it stated that the crime occurred “in the

Southern District of Florida, and elsewhere,” and where it stated, in Count One,

that Carver enticed a minor “and attempted to do so.” Regarding the location of

the crime, the jury could not have convicted Carver by finding that the crime

occurred “elsewhere,” and therefore, the district court’s omission in this respect

was not erroneous. As to actual versus attempted enticement, the Government

presented sufficient evidence both to establish venue and to show that Carver was,

in fact, located in Florida when he committed the Count One crime. Accordingly,

this omission did not prejudice Carver by misleading the jury.

      We review Carver’s remaining challenges for plain error because he failed

to raise them in the district court. Prather, 205 F.3d at 1270. The court correctly

laid out the elements of § 2260A, and then defined “knowingly.” This was not an

error—Count One, a violation of which was an element of Count Two, used the

term “knowingly.” Thus, the district court was within its discretion to define the

term for the jury. And even assuming this was an error, it does not require reversal

because the inclusion of this definition did not confuse or mislead the jury to think

that to violate § 2260A, a person only has to believe that he is required to register

as a sex offender. Indeed, the court explained the relevant element of

§ 2260A—that the defendant “was required by Federal or other law to register.”

                                          14
And finally, given the evidence at trial, the jury did not need to engage in a

complicated statutory analysis to conclude that Carver qualified as a sex offender

under § 943.0435. Accordingly, because there was no error, much less plain error,

we affirm.

                               IV. Witness Testimony

       Carver argues that the district court improperly permitted Carver’s

probation officer, Richard Ambrum, to provide a legal opinion that Carver was

required to register as a sex offender. According to Carver, Ambrum’s testimony

was improper lay witness testimony under Federal Rules of Evidence 701 and 702.

Carver argues that the district court never corrected the error because it did not

give a curative instruction.

      We review all evidentiary questions for abuse of discretion. United States v.

Brown, 415 F.3d 1257, 1264–65 (11th Cir. 2005). Under Rule 701, the testimony

of a non-expert witness “is limited to those opinions or inferences which are (a)

rationally based on the perception of the witness, (b) helpful to a clear

understanding of the witness’ testimony or the determination of a fact in issue, and

(c) not based on scientific, technical, or other specialized knowledge within the

scope of Rule 702.” Fed. R. Evid. 701. We will not reverse because of an

evidentiary ruling if the error was harmless. United States v. Khanani, 502 F.3d

                                          15
1281, 1292 (11th Cir. 2007).

      The district court did not err by admitting Ambrum’s testimony. Carver

stipulated that he registered at all times during Ambrum’s supervision. Further,

Ambrum’s testimony was based at least in part on his perception, since he

personally signed the registration responsibilities form with Carver. Ambrum

never provided an opinion on whether the registration statute, as a matter of law,

was properly applied to Carver. And on cross-examination, Ambrum admitted

that he had no legal training and was not holding himself out as an expert in the

construction or interpretation of Florida statutes. Carver’s counsel argued that the

registration requirement was incorrectly applied to Carver, and the court explained

that it was the jury’s responsibility to determine whether § 943.0435 required

Carver to register as a sex offender. Moreover, even if Ambrum’s testimony

constituted an expert opinion, Carver cannot show it had a “substantial influence

on the outcome of the case” as required for reversal, Khanani, 502 F.3d at 1292,

because there was a sufficient evidentiary basis—outside of Ambrum’s

testimony—that Carver was required to register. Accordingly, reversal is not

warranted on this issue.

                           V. Prosecutorial Misconduct

      Carver argues that, in its closing argument, the Government impermissibly

                                         16
vouched for Carver’s § 800.04 conviction, the Count One conviction, and Carver’s

residence and location at the time Carver committed the Count One offense. He

also argues that the cumulative error doctrine requires reversal.

      We review allegations of prosecutorial misconduct de novo, as they present

a mixed question of law and fact. United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006).

             To establish prosecutorial misconduct, “(1) the remarks
             must be improper, and (2) the remarks must prejudicially
             affect the substantial rights of the defendant.” A
             defendant’s substantial rights are prejudicially affected
             when a reasonable probability arises that, but for the
             remarks, the outcome of the trial would have been
             different. When the record contains sufficient independent
             evidence of guilt, any error is harmless.

Id. (citations omitted). Moreover, if the district court gave a curative instruction,

“we will reverse only if the evidence is so prejudicial as to be incurable by that

measure.” United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009), cert.

denied, 131 S. Ct. 413 (2010). When individual errors do not warrant reversal, we

will reverse if the cumulative effect of multiple errors deny the defendant a fair

trial. Id. at 1258. In addressing cumulative error, we “examine the trial as a whole

to determine whether the appellant was afforded a fundamentally fair trial.” Id.

      Having reviewed the record and the parties’ arguments, we find that the



                                          17
Government’s remarks were neither improper nor prejudicial. The remarks were

not “vouching,” which refers to attempts “to bolster the credibility of a

witness . . . .” Id. at 1256. None of the Government’s arguments were related to

the credibility of a witness, and most of the Government’s comments were made in

response to Carver’s attorney’s closing argument. For example, in closing

argument, Carver’s attorney argued that the Government failed to present expert

witnesses and that Carver was never convicted of assault in 1990. In its rebuttal,

the Government responded to these arguments, emphasizing that no expert

witnesses were necessary and that the Florida registration statute did not require a

conviction for assault—only a conviction for violating § 800.04.

      Further, even assuming the Government’s remarks improperly suggested

that Carver’s plea to Count One conclusively established his residence and

location in Florida, the remarks did not result in substantial prejudicial impact

given the evidence presented at trial and the court’s curative instructions to the

jury. Accordingly, the comments do not warrant reversal, and we likewise decline

to reverse based on cumulative error.

                                 VI. Jury Selection

      We review de novo challenges to the constitutionality of the jury selection

process. United States v. Grisham, 63 F.3d 1074, 1077 (11th Cir. 1995). In order

                                          18
to establish a prima facie violation of the fair-cross-section requirement, the

defendant must show

             (1) that the group alleged to be excluded is a distinctive
             group in the community, (2) that representation of the
             group in venires is not fair and reasonable in relation to the
             number of such persons in the community, and (3) that the
             underrepresentation is due to systemic exclusion of the
             group in the jury-selection process. . . . To examine the
             second element, we must compare the difference between
             the percentage of the distinctive group among the
             population eligible for jury service and the percentage of
             the distinctive group on the [qualified jury wheel
             (“QJW”)]. If the absolute disparity between these two
             percentages is 10 percent or less, the second element is not
             satisfied.

Id. at 1078–79.

      Carver argues that his jury selection violated the Sixth Amendment’s fair-

cross-section requirement because the percentage of African Americans on the

jury venire was 2.5%. On appeal, Carver cites the 2009 Census data on the

African American population in the five counties from which the jury was chosen

(11.9%) and the percentage of African Americans within all the counties in the

Southern District of Florida (19%). Carver fails, however, to present evidence on

the percentage of African Americans that are eligible for jury service within those

boundaries. Moreover, Carver presents no evidence that the five-county area from

which the jury venire was chosen was gerrymandered to exclude African

                                          19
Americans. See Grisham, 69 F.3d at 1080. Thus, Carver has presented

insufficient evidence to establish a prima facie case of a fair-cross-section

violation.

      AFFIRMED.




                                          20
