                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                      PUBLISH                   December 9, 2014
                                                               Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                  Clerk of Court

                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                     No. 14-1000
 JAY BENJAMIN BLACK,

              Defendant - Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLORADO
                    (D.C. NO. 1:12-CR-00410-MSK-1)


Dean A. Strang, StrangBradley, LLC, Madison, Wisconsin (Robin Shellow, The
Shellow Group, Milwaukee, Wisconsin, on the brief), for Defendant - Appellant.

Catherine M. Gleeson, Office of the United States Attorney, Denver, Colorado
(John F. Walsh, United States Attorney, and Stephanie N. Gaddy, Special
Assistant United States Attorney, Denver, Colorado, on the brief), for Plaintiff -
Appellee.


Before GORSUCH, SENTELLE, * and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.




      *
        The Honorable David B. Sentelle, U.S. Circuit Court Judge, D.C. Circuit,
sitting by designation.
                     I. INTRODUCTION/BACKGROUND

      The Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C.

§§ 16901 to 16991, sets out a “comprehensive national system for the registration

of” “sex offender[s].” Id. § 16901. Notably, however, SORNA excludes from the

definition of “sex offender” a subclass of individuals who committed sex offenses

“involving consensual sexual contact.” Id. § 16911(1), (5)(C). “An offense

involving consensual sexual conduct is not a sex offense for the purposes of

[SORNA] if the victim . . . was at least 13 years old and the offender was not

more than 4 years older than the victim.” Id. § 16911(5)(C). This appeal presents

the following question of statutory interpretation: what does it mean, for SORNA

purposes, for an offender to be “no more than 4 years older than” a victim?

      Jay Black pleaded guilty to one count of sexual abuse of a minor in Indian

Country, in violation of 18 U.S.C. § 2243(a). The following facts regarding the

conviction are uncontested: (1) the sex act was consensual; (2) at the time of the

sex act, Black was 18 and the victim was 14 1; and (3) a comparison of Black’s

and the victim’s birthdays demonstrated Black was 55 months older than the

victim. At sentencing, Black claimed he was not required to register as a sex

offender under SORNA because his conduct fell within the terms of

§ 16911(5)(C). Using what he asserted was the colloquial or ordinary


      1
        That is, in common parlance, Black had not yet completed 19 whole years
of life and the victim had not yet completed 15 whole years of life.

                                        -2-
understanding of age, Black argued the age difference between him and the victim

must be figured by subtracting the integers representing completed years of life,

without regard for the number of months or days separating their dates of birth.

Subtracting the victim’s 14 years of completed life from his 18 years of

completed life resulted, according to Black, in a 4-year age difference, an age

difference within the parameters of the exception set out in § 16911(5)(C). The

district court rejected Black’s assertion and concluded § 16911(5)(C) requires a

comparison of the birth dates of the offender and victim to determine the relevant

age difference. Black appeals.

      Joining the only other circuit to consider this question, we conclude “not

more than 4 years older than the victim” means no more than 1461 days or 48

months separate the birthdays of the sex offender and the victim. United States v.

Brown, 740 F.3d 145, 149 (3d Cir. 2014) (quotation omitted). Because more than

48 months separate Black’s and the victim’s birthdays, the district court correctly

ordered Black, as a condition of supervised release, to comply with SORNA’s

registration provisions. Thus, exercising jurisdiction pursuant to 28 U.S.C. §

1291 and 18 U.S.C. § 3742(a), this court affirms the order of the district court. 2

      2
       The government asserts Black has waived his right to appeal this issue.
This court has determined, however, that appeal waivers do not affect our
constitutional or statutory jurisdiction. United States v. Hahn, 359 F.3d 1315,
1320-24 (10th Cir. 2004) (en banc). Because Black’s SORNA claim fails on the
merits, this court exercises its discretion to bypass the relatively complex waiver
issue and resolve Black’s appeal on the merits. See Lemke v. Ryan, 719 F.3d
                                                                        (continued...)

                                         -3-
                                 II. DISCUSSION

      On appeal, Black asserts the district court erred when it concluded the

exemption provision set out in § 16911(5)(C) unambiguously requires a

comparison of the offender’s and victim’s birth dates to determine whether the

offender is “not more than 4 years older than the victim,” rather than a

comparison of the number of whole years lived by the offender and victim.

Alternatively, he asserts § 16911(5)(C) is sufficiently ambiguous so as to trigger

the applicability of the rule of lenity. Questions of statutory interpretation and

applicability of the rule of lenity are legal matters reviewed de novo. United

States v. Handley, 678 F.3d 1185, 1189 (10th Cir. 2012) (statutory interpretation);

United States v. Michel, 446 F.3d 1122, 1135 (10th Cir. 2006) (rule of lenity).

      In addressing the exact same question before this court, the Third Circuit

held as follows:

             The dispositive question before us is what is meant by the
      word “years” in 42 U.S.C. § 16911(5)(C). The District Court
      decided that the use in that statute of the phrase “more than 4 years
      older than the victim” is “susceptible to more than one reasonable
      interpretation,” but we disagree.

             “[T]he starting point for interpreting a statute is the language
      of the statute itself.” Consumer Prod. Safety Comm’n v. GTE
      Sylvania, Inc., 447 U.S. 102, 108 (1980). When words are not
      defined within the statute, we construe them “in accordance with


      2
       (...continued)
1093, 1098-99 (9th Cir. 2013); United States v. Caruthers, 458 F.3d 459, 472 &
n.6 (6th Cir. 2006); United States v. Cupit, 169 F.3d 536, 539 (8th Cir. 1999).

                                         -4-
[their] ordinary or natural meaning.” FDIC v. Meyer, 510 U.S. 471,
476 (1994). We do not, however, do so blindly.

      [F]requently words of general meaning are used in a
      statute . . . and yet a consideration of the whole
      legislation, or of the circumstances surrounding its
      enactment, or of the absurd results which follow from
      giving such broad meaning to the words, makes it
      unreasonable to believe that the legislator intended to
      include the particular act.

Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). In
such cases, resorting to dictionary definitions may be helpful. See
MCI Telecomm. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 225
(1994) . . . . Ultimately, though, “[a]mbiguity is a creature not of
definitional possibilities but of statutory context,” Brown v. Gardner,
513 U.S. 115, 118 (1994), so the touchstone of statutory analysis
should, again, be the statute itself.

       . . . In common usage, a year means 365 consecutive days
(except, of course, when a leap year adds a day) or 12 months. See,
e.g., Black’s Law Dictionary 1754 (9th ed. 2009) (“A consecutive
365-day period beginning at any point.”). We therefore conclude
that the term “4 years” is not ambiguous: it is quite precisely 1,461
days or 48 months. While the word “years” on its own or in some
colloquial usage could perhaps be thought ambiguous, the word is
not floating in abstract isolation or casual conversation here; it is set
in the specific terms of a specific statute, and it has a discernible
meaning in that context. “[M]ore than 4 years” means anything in
excess of 1,461 days.

       Considering “years” to mean whole years only . . . would lead
to strange results in the application of SORNA. The government
rightly notes that using the colloquial method of calculating whether
an offender was more than 4 years older than his victim would create
alternating windows of time in which the same offense involving the
same two participants sometimes would require registration under
SORNA and sometimes [would] not, depending upon the time of the
year their sexual congress took place. In other words, if we take
Brown’s Florida offense as an example and we were to assume that
Brown’s date of birth was May 1, 1984, and his victim’s date of birth

                                    -5-
      was September 1, 1988—exactly four years and four months
      later—Brown would only need to register under SORNA if he had
      been convicted of having sexual contact with her at any point
      between May 1st through August 31st of any year between 2002 and
      2004, when he was “colloquially” five years older, but he would not
      need to register for a conviction involving the same conduct at other
      times. That cannot be the law.

            The District Court expressed concern that considering “4
      years” literally as an accumulation of lesser units of time could
      “require a calculation down to the month, day, hour, minute, or even
      second in order to calculate the difference in age between a
      defendant and victim.” But demanding some precision . . . is more
      sound than the conclusion that no one is “more than 4 years older”
      than someone else unless he is actually five years older.

Brown, 740 F.3d at 149-50 (quotations, footnotes, and record citations omitted).

      This court concludes the Third Circuit’s analysis is entirely convincing and

hereby adopts it as our own. We do note, however, an additional compelling

reason to reject the reading of § 16911(5)(C) advanced by Black. Black’s

construction of SORNA could have an untoward collateral impact on the

interpretation of substantive federal criminal provisions. For instance, the statute

underlying Black’s statutory rape conviction contains an element remarkably

similar to the language at issue in this case. That is, the federal statutory rape

provision only applies if the victim is between 12 and 16 and is “at least four

years younger than the” offender. 18 U.S.C. § 2243(a). Under Black’s

view—that such provisions must be interpreted consistent with the colloquial

understanding of whole years of aging—this substantive criminal provision could

reach defendants who were no more than three years and one day older than a

                                          -6-
sexual partner. That is, sex between a victim aged 14 years and 364 days and a

defendant on the defendant’s eighteenth birthday would fall within the rubric of

§ 2243(a). 3 Thus, while potentially narrowing the class of individuals required to

register under SORNA, Black’s interpretation of statutory provisions like

§ 16911(5)(C) could substantially broaden the instances of sexual conduct subject

to substantive criminal penalty. It simply cannot be reasonably argued that

Congress intended substantive criminal liability to attach to a random and

somewhat meaningless “whole year” age analysis, rather than a straight-forward

calculation as to the number of months (or days) that passed between the birth of

the perpetrator and the birth of the victim.

      Finally, this court’s conclusion that § 16911(5)(C) cannot reasonably be

read to adopt a whole-year method of comparing the ages of the perpetrator and

the victim renders the rule of lenity inapplicable. After all, “[t]he simple

existence of some statutory ambiguity . . . is not sufficient to warrant application

of that rule, for most statutes are ambiguous to some degree.” Dean v. United

States, 556 U.S. 568, 577 (2009) (quotation omitted). Instead, “[t]o invoke the


      3
        There could be similar collateral impacts on other criminal provisions. For
instance, federal law classifies as first degree murder any killing “ perpetrated as
part of a pattern or practice of assault or torture against a child or children.”
18 U.S.C. § 1111(a). A child is “a person who has not attained the age of 18
years and is . . . at least six years younger than the perpetrator.” Id. § 1111(c)(2).
Likewise, the federal aggravated sexual abuse statute applies where the victim is
not yet 16 and “is at least 4 years younger than the” perpetrator. 18 U.S.C.
§ 2241(c).

                                         -7-
rule, we must conclude that there is a grievous ambiguity or uncertainty in the

statute.” Id. (quotation omitted). For those reasons set out above, this court has

no difficulty concluding the type of grievous ambiguity necessary to implicate the

rule of lenity is not present in this case.

                                 III. CONCLUSION

       The order of the district court requiring Black to comply with SORNA’s

registration requirements as a condition of supervised release is hereby

AFFIRMED.




                                              -8-
