                             UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                    25
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

                                       26
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,

                                                 27
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,

                                                28
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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