                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-4067



UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.


WILLIAM DAVID BRIDGES, a/k/a William Davis Bridges,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap.      James P. Jones,
District Judge. (2:12-cr-00022-JPJ-PMS-1)


Argued:   December 11, 2013                 Decided:   January 27, 2014


Before WILKINSON, DIAZ, and THACKER, Circuit Judges.


Affirmed by published opinion. Judge Thacker wrote the opinion,
in which Judge Wilkinson and Judge Diaz joined.


ARGUED: Brian Jackson Beck, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Abingdon, Virginia, for Appellant.        Jennifer R.
Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon,
Virginia, for Appellee.    ON BRIEF: Larry W. Shelton, Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke,
Virginia, for Appellant.     Timothy J. Heaphy, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke,
Virginia, for Appellee.
THACKER, Circuit Judge:

              A federal grand jury indicted Appellant William David

Bridges (“Appellant”) on one count of traveling in interstate

commerce      and       knowingly    failing       to    update       his     sex       offender

registration in violation of 18 U.S.C. § 2250.                             Appellant moved

to   dismiss        the    indictment,       arguing         that    his     plea       of   nolo

contendere to attempted sexual battery in Florida state court,

in   which     adjudication         was     withheld,        does    not     qualify         as   a

conviction within the meaning of the Sex Offender Registration

and Notification Act (“SORNA”).                    The district court denied the

motion,      and    Appellant       entered    a    conditional         plea       of    guilty,

reserving only his right to appeal the district court’s “denial

of   [his]    Motion to       Dismiss       the Indictment.”                J.A.    58. 1         We

conclude the district court correctly found Appellant’s plea of

nolo       contendere       with     adjudication            withheld        constitutes          a

conviction for the purposes of SORNA because it resulted in a

penal consequence.          Consequently, we affirm.

                                              I.

              On February 17, 1999, Appellant entered a plea of nolo

contendere         in   Florida     state    court      to    a     charge    of    Attempted

Sexual Battery upon a Child under 16 Years of Age, in violation


       1
        Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.



                                              2
of Fla. Stat. § 800.04(3) (1996) (amended 1999). 2             That same day,

the Florida state court entered a written judgment in the case,

ordering that “ADJUDICATION OF GUILT BE WITHHELD.”                   J.A. 15.

The order directed Appellant to pay court costs and serve two

years of probation, which “may terminate upon entry into the

[United States] Army.”           Id. at 18.       Appellant also received

credit for three days served in jail.

           As a result of this judgment, Appellant was required

to register as a sex offender under Florida law.               See Fla. Stat.

§ 943.0435.   On September 30, 2000, he was arrested by Florida

authorities for failure to register.             After entering a plea of

nolo contendere in Florida state court, Appellant received a

one-year sentence of probation.            The state court later revoked

his   probation   because   he    failed    to   report   to   his   probation



      2
       The version of the statute in effect at the time                     of
Appellant’s offense conduct provided, in pertinent part:

      A person who: . . . (3) Commits an act defined as
      sexual battery under s. 794.011(1)(h) upon any child
      under the age of 16 years . . . commits a felony of
      the second degree . . . . Neither the victim’s lack of
      chastity nor the victim’s consent is a defense to the
      crime proscribed by this section.

Fla. Stat. § 800.04(3) (1996).   An act of “sexual battery,” in
turn, is defined as “oral, anal, or vaginal penetration by, or
union with, the sexual organ of another or the anal or vaginal
penetration of another by any other object; however, sexual
battery does not include an act done for a bona fide medical
purpose.” Fla. Stat. § 794.011(1)(h) (1996).



                                      3
officer and, on September 26, 2001, sentenced him to 68 days in

custody.

              Appellant       moved   to        Virginia     in     2010,    where     he

registered     as   a   sex    offender.          However,    on    August    2,    2011,

Virginia authorities discovered Appellant no longer lived at his

reported address in Weber City, Virginia, and he had not updated

his registration with a new address.                    He was ultimately located

at his new residence in Gaylord, Michigan, where he had also

failed to register as a sex offender.

               On July 23, 2012, a federal grand jury in the Western

District of Virginia returned a single-count indictment charging

Appellant with traveling in interstate commerce and knowingly

failing to update his sex offender registration, in violation of

18 U.S.C. § 2250.         On October 10, 2012, Appellant filed a motion

to dismiss the indictment, arguing only that “[b]ecause [he]

entered a plea of nolo contendere and was not adjudged guilty by

the   state    of   Florida     of    a    sex    offense,    he     has    never    been

‘convicted’ of a sex offense” for the purposes of the federal

registration requirements.            J.A. 12.          The district court denied

Appellant’s     motion,       concluding        that   his   nolo    contendere      plea

did indeed qualify as a conviction under SORNA.

              Shortly after the district court issued its ruling,

Appellant entered a conditional guilty plea pursuant to Fed. R.

Crim.   P.    11(a)(2).        Pursuant     to    his    written     plea    agreement,

                                            4
Appellant “expressly waive[d]” his right to appeal, with the

“sole exception” of “the right to appeal the Court’s denial of

[his]    Motion   to   Dismiss   the   Indictment.”   J.A.   58   (emphasis

supplied).    Appellant now challenges the district court’s denial

of his motion to dismiss. 3

                                       II.

            Where, as here, a district court’s denial of a motion

to dismiss an indictment depends solely on a question of law, we

review the district court’s ruling de novo.           See United States


     3
       Appellant attempts to raise one additional argument that
is clearly outside the scope of the ruling he is entitled to
challenge as part of his conditional guilty plea. Specifically,
he contends “the district court erred in its construction of the
definition of sex offense under SORNA” because, applying the
modified categorical approach to his attempted sexual battery
conviction, the Government cannot prove there was at least a
four-year age differential between himself and his victim so as
to avoid the consensual sex exception to the definition of “sex
offense” contained in 42 U.S.C. § 16911(5)(C).    Appellant’s Br.
20.   The record, however, is unambiguous -- the district court
did not construe the definition of “sex offense,” and Appellant
never sought the same. Although we question Appellant’s candor
in this regard, we will assume he contends the district court
erred by failing to sua sponte dismiss the indictment on the
grounds articulated above.    Inasmuch as Appellant clearly and
unequivocally waived the right to appeal “any and all other
issues in this matter” save the district court’s ruling on his
motion to dismiss, J.A. 58, we conclude this issue –- however
framed -- has been affirmatively waived, and we will not
entertain it further. Cf. United States v. Bundy, 392 F.3d 641,
650 n.3 (4th Cir. 2004) (“Where a defendant who pled guilty
presents on appeal an issue that he did not even attempt to
preserve by means of a conditional plea, we decline to entertain
the appeal on the ground that the defendant’s unconditional plea
waived that issue altogether.” (emphasis omitted)).



                                        5
v. Hatcher, 560 F.3d 222, 224 (4th Cir. 2009) (citing United

States v. United Med. & Surgical Supply Corp., 989 F.2d 1390,

1398 (4th Cir. 1993)).

                                       III.

             Congress      enacted   SORNA     “[i]n     order      to       protect   the

public from sex offenders and offenders against children, and in

response to the vicious attacks by violent predators” against

seventeen named victims of sex crimes.                   42 U.S.C. § 16901.             In

order   to       address    the   significant      number      of     “missing”        sex

offenders, see H.R. Rep. No. 109–218, pt. 1, at 26 (2005), SORNA

“establishes        a      comprehensive       national        system          for     the

registration of [sex] offenders,” 42 U.S.C. § 16901.                          SORNA thus

requires     a    sex    offender,   defined      as    “an   individual         who   was

convicted of a sex offense,” id. § 16911(1) (emphasis supplied),

to register in each jurisdiction where he resides, id. § 16913.

This requirement is enforced through 18 U.S.C. § 2250, which

imposes criminal penalties on persons who, by virtue of their

state convictions, are required to register as sex offenders

under   SORNA      and   knowingly   fail    to    do    so   after      traveling      in

interstate commerce.

             The issue in this case is whether Appellant’s nolo

contendere plea to a Florida attempted sexual battery charge, in

which   adjudication        was   withheld,       qualifies      as      a    conviction

within the meaning of 42 U.S.C. § 16911(1).                    We begin with the

                                        6
undisputed     premise     that    federal       law,          rather    than     state     law,

controls the question of what constitutes a conviction under

SORNA.     See Dickerson v. New Banner Inst., Inc., 460 U.S. 103,

119   (1983)    (“[I]n    the     absence       of    a    plain    indication         to   the

contrary, . . . it is to be assumed when Congress enacts a

statute     that     it   does    not     intend          to     make     its     application

dependent      on     state      law.”    (quotation              marks      and      citation

omitted)), superseded by statute on other grounds, 18 U.S.C.

§ 921(a)(20).        Turning to the plain language of SORNA itself, we

observe     that     Congress     left     the        statutory         term      “convicted”

undefined 4    and    expressly        granted        authority         to      the   Attorney

General to “issue guidelines and regulations to interpret and

implement      [SORNA].”         42     U.S.C.        § 16912(b).              The    Attorney

General, consistent with this grant of authority and following

notice-and-comment         procedures,          has       promulgated           comprehensive

guidelines that illuminate the meaning of the term.                                   See The

National       Guidelines        for     Sex         Offender           Registration        and

Notification,        73   Fed.    Reg.    38,030          (July     2,       2008)    (“SMART

Guidelines”).        These Guidelines “can and do have the force and




      4
       SORNA does contain a provision addressing what “[t]he term
‘convicted’   .   .  .   includes”  with   respect  to    juvenile
adjudications, 42 U.S.C. § 16911(8) (emphasis supplied), but
this section neither defines nor limits the term and does not
inform its meaning in the context of adult adjudications.



                                            7
effect of law[.]”         United States v. Stevenson, 676 F.3d 557, 565

(6th Cir. 2012). 5

            The    SMART       Guidelines       explain      the   character   of    a

“conviction”      is    not    dependent       upon    the   “nominal    changes    or

terminological variations” present within varying jurisdictions.

73 Fed. Reg. at 38,050.           To the contrary, in order to effectuate

a comprehensive and uniform national system, a single standard

controls:    “an       adult   sex    offender        is   ‘convicted’   for   SORNA

purposes    if     the     sex       offender     remains      subject    to   penal

consequences based on the conviction, however it may be styled.”

Id. (emphasis supplied).              The federal registration requirement,

     5
       By leaving the operative statutory term undefined and
delegating broad rulemaking authority to the Attorney General,
Congress has implicitly left a gap in SORNA’s statutory regime
that the Attorney General may fill. See Chevron U.S.A., Inc. v.
Natural Resources Def. Council, Inc., 467 U.S. 837, 843 (1984)
(“The power of an administrative agency to administer a
congressionally created . . . program necessarily requires the
formulation of policy and the making of rules to fill any gap
left, implicitly or explicitly, by Congress.” (quoting Morton v.
Ruiz, 415 U.S. 199, 231 (1974))); see also United States v.
Under Seal, 709 F.3d 257, 263 (4th Cir. 2013) (“SORNA is a non-
punitive,   civil  regulatory   scheme,  both  in   purpose  and
effect.”).    Because the Attorney General’s duly promulgated
explication of the term “convicted” is consistent with the
statutory language as well as eminently reasonable, we are
satisfied it represents a permissible –- and correct --
construction of the statute.   See, e.g., Nat’l City Bank of IN
v. Turnbaugh, 463 F.3d 325, 332 (4th Cir. 2006) (“[I]n cases of
statutory silence, we ‘must defer, under Chevron, to [an
agency’s interpretation of its governing statute], so long as
that interpretation is permissible in light of the statutory
text and reasonable.’” (quoting Ohio Valley Envtl. Coal. v.
Bulen, 429 F.3d 493, 498 (4th Cir. 2005))).



                                           8
in other words, cannot be avoided simply because a jurisdiction

“h[as] a procedure under which the convictions of sex offenders

in certain categories . . . are referred to as something other

than ‘convictions.’”       Id.     Rather, so long as “the sex offender

is nevertheless required to serve what amounts to a criminal

sentence for the offense,” he is “convicted” of a sex offense

and falls within the ambit of SORNA’s registration requirements.

Id.

            Here, Appellant was sentenced to, inter alia, a two-

year term of probation pursuant to his nolo contendere plea to

the attempted sexual battery charge, and he served three days in

jail.    Appellant conceded at oral argument that probation is a

penal    consequence,    see     Oral   Argument         at   05:42-05:47,     United

States v. Bridges, No. 13-4067 (Dec. 11, 2013), available at

http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-

arguments, and we agree that this principle is beyond dispute.

See Dickerson, 460 U.S. at 113-14 (“[O]ne cannot be placed on

probation if the court does not deem him to be guilty of a

crime[.]”); see also United States v. Medina, 718 F.3d 364, 368

(4th Cir. 2013) (noting probation is a “form of restraint on [a

defendant’s]    liberty”).         The       only    question,      therefore,     is

whether Florida’s method of “withholding adjudication” works to

exempt    Appellant     from   registering          as   a    sex   offender   under

federal law.    We conclude that it does not.

                                         9
            The     SMART          Guidelines     specifically         contemplate       a

situation such as the one at issue here, i.e., where a state has

implemented a procedure for the disposition of criminal cases

that nominally affects a category of sex offenders but “do[es]

not relieve a conviction of substantive effect.”                         73 Fed. Reg.

at 38,050.     In this context, the Guidelines are clear –- a sex

offender is “convicted” so long as he “remains subject to penal

consequences . . . however [the conviction] may be styled.”                            Id.

(emphasis    supplied).             Appellant     pled    nolo    contendere    to     the

attempted sexual battery of a child. 6                   The state court entered a

judgment    order      and    sentenced     him    to    two    years’   probation,      a

sentence that attached immediately, and withheld only the formal

adjudication      of   his    guilt.        Whatever      the    ultimate     length    of

Appellant’s probationary term or the status of his conviction

under state law, 7 he was required “to serve what amounts to a

criminal    sentence         for    [his]   offense.”            Id.     He   was    thus



     6
       Despite Appellant’s intimations to the contrary, a plea of
nolo contendere “has the effect of a plea of guilty.”      United
States v. Kahn, 822 F.2d 451, 455 (4th Cir. 1987) (internal
quotation marks and citations omitted). Where, as here, we are
only concerned with the fact of a conviction, not its
classification, the form of the plea makes no difference.
     7
       The record is unclear as to whether Appellant entered                           the
Army, which would have terminated his probationary term, or                            was
otherwise discharged prior to the natural expiration of                                his
sentence. It is undisputed, however, that he was sentenced                             to,
and served, some term of probation.



                                            10
“convicted” of a sex offense under 42 U.S.C. § 16911(1) and was

required to register under SORNA.

               This conclusion is reinforced by the decisions of two

of our sister circuits, each of which have concluded that a

Florida    nolo        contendere          plea       with     adjudication      withheld

constitutes a “conviction” under federal law.                          See United States

v. Maupin, 520 F.3d 1304, 1307 (11th Cir. 2008) (entry of nolo

contendere plea with adjudication withheld constitutes a prior

conviction under 18 U.S.C. § 2252A);                         United States v. Storer,

413 F.3d 918, 921–22 (8th Cir. 2005) (same); United States v.

Mejias,    47    F.3d       401,   404     (11th       Cir.    1995)    (entry   of    nolo

contendere plea with adjudication withheld constitutes a prior

conviction under 21 U.S.C. § 841(b)(1)(B)).                          Although Appellant

argues that United States v. Willis, 106 F.3d 966 (11th Cir.

1997),    is    to    the    contrary,      he    is       simply   incorrect.      Willis

analyzed       whether      the    entry    of    a    nolo     contendere    plea     with

adjudication         withheld      constituted         a    “conviction”    under     state

law.     See id. at 968.            That decision, as the Eleventh Circuit

itself has noted, is inapposite in the context of analyzing the

meaning of a “conviction” under federal law.                            See Maupin, 520

F.3d at 1307; see also Oral Argument at 05:42-05:47 (Appellant

agreeing that state definitions of “convicted” are irrelevant in

cases arising under SORNA).                  In short, the relevant authority

uniformly rejects Appellant’s position.

                                             11
               Finally,      we       are    unpersuaded       by    Appellant’s          rule    of

lenity      argument.            In   order     to    invoke    this     rule,       “‘we       must

conclude that there is a grievous ambiguity or uncertainty in

the statute.’”              Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir.

2012)       (emphasis       in    original)       (quoting          Muscarello       v.    United

States, 524 U.S. 125, 138–39 (1998)).                         The ambiguity in SORNA’s

use    of    the     term    “convicted”         does   not     rise    to     the    level       of

grievousness         that    would          warrant   application        of    the        rule    of

lenity.       See Muscarello, 524 U.S. at 138 (“The simple existence

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

application of [the] rule, for most statutes are ambiguous to

some degree.”).

               In sum, we hold that Appellant’s nolo contendere plea

with    adjudication         withheld         constitutes       a     conviction          for    the

purposes of 42 U.S.C. § 16911(1) because it resulted in a penal

consequence.          Therefore, Appellant was required to register as a

sex offender under SORNA and falls within the ambit of 18 U.S.C.

§   2250.       The     district        court     properly      denied        his    motion       to

dismiss the indictment.

                                                IV.

               For     the       foregoing       reasons,       the     judgment          of     the

district court is

                                                                                      AFFIRMED.



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