United States v. John Hill

Filing

OPINION FILED - THE COURT: Roger L. Wollman, Morris S. Arnold and Bobby E. Shepherd AUTHORING JUDGE:Morris S. Arnold (PUBLISHED) [4393551] [15-3193]

United States Court of Appeals
For the Eighth Circuit
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No. 15-3193
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
John Oliver Hill, also known as John Benson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
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Submitted: March 18, 2016
Filed: April 29, 2016
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Before WOLLMAN, ARNOLD, and SHEPHERD, Circuit Judges.
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ARNOLD, Circuit Judge.
After John Hill was indicted for failing to register as a sex offender, see 18
U.S.C. § 2250, he moved to dismiss the indictment because the statute under which
he was indicted was unconstitutional and because he was not a "sex offender" within

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its meaning. When the district court1 denied the motion, Hill pleaded guilty, reserving
his right to appeal the denial, and this appeal ensued.
Hill moved from South Carolina to Arkansas after he pleaded guilty in a South
Carolina state court to a charge of "wilfully, maliciously, and indecently expos[ing]
his person in a public place, on property of others, or to the view of any person on a
street or highway." See S.C. Code Ann. § 16–15–130(A)(1). The state court ordered
Hill to register in both sex-offender and child-abuse registries, which he did. Some
years thereafter, Congress enact ed the Sex Offender Registration and Notification
Act (SORNA) "to protect the public from sex offenders and offenders against
children," 42 U.S.C. § 16901, and to make more uniform and effective the patchwork
of sex-offender registries throughout the United States. Reynolds v. United States,
132 S. Ct. 975, 978 (2012). Congress gave SORNA teeth by criminalizing a sex
offender's knowing failure to register or update certain information. See 18 U.S.C.
§ 2250(a). As relevant here, SORNA requires sex offenders to register in jurisdictions
where they reside and to update their information within three business days after
changing residence. 42 U.S.C. § 16913(a), (c). Hill did not update his information for
several months after moving to Arkansas, prompting the government's indictment.
Hill maintains, first, that the district court should have dismissed the indictment
because SORNA violates the non-delegation doctrine and exceeds Congress's power
under the Commerce Clause. As Hill concedes, however, circuit precedent forecloses
these arguments. See United States v. Manning, 786 F.3d 684, 685–86 (8th Cir.
2015).
Hill's more serious contention is that the district court should have dismissed
the indictment because his conviction for indecent exposure did not trigger SORNA's

1

The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
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registration requirements since he is not demonstrably a "sex offender." SORNA
defines a "sex offender" as "an individual who was convicted of a sex offense." 42
U.S.C. § 16911(1). In turn, as relevant, a "sex offense" includes "a criminal offense
that is a specified offense against a minor." 42 U.S.C. § 16911(5)(A)(ii). A "specified
offense against a minor" includes "conduct that by its nature is a sex offense against
a minor." 42 U.S.C. § 16911(7)(I).
The question in this case boils down to whether Hill's prior offense involved
"conduct that by its nature is a sex offense against a minor." Hill argues that courts
should look simply at the statute underlying his conviction to determine whether its
elements show categorically that it is a sex offense against a minor. He insists that we
could not look at the facts underlying his conviction but only at the crime's statutory
definition. See Ortiz v. Lynch, 796 F.3d 932, 935 (8th Cir. 2015). That would require
us to presume that Hill's conviction rested upon nothing more than the least of the
acts criminalized as "indecent exposure," see id., which the government presumably
concedes would not be a "sex offense."
The government contends, however, that we should apply a circumstancespecific approach in determining whether Hill's conviction was for a "sex offense."
See Nijhawan v. Holder, 557 U.S. 29, 36 (2009). When doing that, we would examine
the "particular circumstances in which an offender committed the crime on a
particular occasion." Moncrieffe v. Holder, 133 S. Ct. 1678, 1691 (2013). The
government further maintains that we would not be limited to reviewing certain
documents like indictments, plea agreements, transcripts of plea colloquies, jury
instructions, and findings of fact and conclusions of law from a bench trial, see
Shepard v. United States, 544 U.S. 13, 20 (2005), to determine the facts underlying
a prior conviction. See Nijhawan, 557 U.S. at 41. Instead, we could consider any
reliable evidence. See United States v. Price, 777 F.3d 700, 705 (4th Cir. 2015).

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The government has the better argument. Three other circuits have considered
how courts should determine if a prior offense constitutes "conduct that by its nature
is a sex offense against a minor" under SORNA, and all three have reached the same
conclusion: Courts should employ a circumstance-specific approach. See id. at 708;
United States v. Dodge, 597 F.3d 1347, 1356 (11th Cir. 2010) (en banc); United
States v. Mi Kyung Byun, 539 F.3d 982, 991–92 (9th Cir. 2008). We agree because
we think that the text and purposes of SORNA compel that conclusion.
Hill's argument simply founders on the plain words of the statute. As we noted,
§ 16911(7)(I) explains that a "specified offense against a minor" includes "conduct
that by its nature is a sex offense against a minor," which manifestly invites an
examination of the specific conduct in which the defendant engaged. SORNA's
announced purposes, moreover, buttress our conclusion. Congress enacted the statute
to protect children from sex offenders, and it purposely defined its terms broadly to
"cast a wide net to ensnare as many offenses against children as possible." Dodge,
597 F.3d at 1355. Various subsection headings in SORNA illustrate its intended
breadth. For example, the title of the subsection defining "sex offense," which carries
the name of a specific child victim, states that it is an "expansion of [the] sex offense
definition." 42 U.S.C. § 16911(5). In addition, the title of the subsection defining the
phrase "specified offense against a minor" is "Expansion of definition of 'specified
offense against a minor' to include all offenses by child predators." 42 U.S.C.
§ 16911(7). These provisions only confirm what the text evidently commands: a
circumstance-specific approach.
In determining that we may examine the circumstances that underlie Hill's
conviction for indecent exposure, we reject Hill's contention that we should accord
deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) to the Attorney General's "SMART Guidelines" interpreting
§ 16911(7)(I), which apparently recommends a categorical approach. See Office of
the Attorney General; National Guidelines for Sex Offender Registration and
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Notification, 73 Fed. Reg. 38,030, 38,052 (July 2, 2008). We agree with the Fourth
Circuit that Chevron deference is inappropriate in these circumstances because the
statutory provisions at issue are unambiguous regarding the proper method of
analysis. See Price, 777 F.3d at 709 n.9.
Turning now to a consideration of Hill's offense conduct, it is evident that he
committed a "sex offense" within the meaning of SORNA. According to the relevant
arrest affidavit, Hill masturbated in front of an eleven-year-old child. While we might
ordinarily hesitate to give much weight to facts contained in an arrest affidavit, other,
more reliable information concludes the matter against Hill. For example, as we have
already said, Hill's record of conviction for indecent exposure notes that he was
ordered to register in the child-abuse registry. South Carolina law requires those who
are convicted of indecent exposure to register with the state's child-abuse registry
only when the act on which the conviction "is based involved sexual or physical
abuse of a child." S.C. Code Ann. § 17–25–135(A). In addition, Hill's sex-offender
registration notes that the victim of his offense was an eleven-year-old girl. Because
Hill's conviction for indecent exposure therefore evidently involved an eleven-yearold victim, he committed a "sex offense" that was a "specified offense against a
minor" because it was "conduct that by its nature is a sex offense against a minor."
He was thus obligated to register and update his information under SORNA, and so
the district court correctly rejected his motion to dismiss the indictment.
Affirmed.
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