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Nichols v. U.Sia&SG4.:3-6-(2eicS0654-PJH Document 37-1 Filed 04/06/16 Page 1 of 6 2016 WL 1278473 Registration and Notification Act, §§ 111(10), 113(a, c), 42 U.S.C.A. §§ 16911(1), 16913(a, c). 2016 WL 1278473 Only the Westlaw citation is currently available. Cases that cite this headnote Supreme Court of the United States Lester Ray NICHOLS, Petitioner [2] Mental Health v. Effect of Assessment or Determination; UNITED STATES. Notice and Registration Registered sex offender was not required under No. 15-5238. SORNA to update his registration in Kansas once he left his home in the Kansas City, Kansas Argued March 1, 2016. area and moved to the Philippines; abrogating U.S. v. Murphy, 664 F.3d 798. Sex Offender Decided April 4, 2016. Registration and Notification Act, §§ 111(10), 113(a, c), 42 U.S.C.A. §§ 16911(1), 16913(a, c). Synopsis Background: Defendant, a previously convicted sex Cases that cite this headnote offender who left the United States without updating his status on federal sex offender registry, was convicted in the United States District Court for the District of Kansas, [3] Constitutional Law J. Thomas Marten, J., 2013 WL 6000016, of violating the 4— Making, Interpretation, and Application of Sex Offender Registration and Notification Act (SORNA). Statutes Defendant appealed. The United States Court of Appeals for To supply statutory omissions transcends the the Tenth Circuit, McHugh, Circuit Judge, 775 F.3d 1225, judicial function. affirmed. Certiorari was granted. Cases that cite this headnote [Holding:] The Supreme Court, Justice Alito, held that sex [41 Criminal Law offender was not required under SORNA to update his Construction and Operation in General registration in Kansas once he left his home and moved to the The Supreme Court interprets criminal statutes, Philippines, abrogating U.S. v. Murphy, 664 F.3d 798. like other statutes, in a manner consistent with ordinary English usage. Reversed. Cases that cite this headnote [5] Mental Health West Headnotes (8) Registration and Community Notification SORNA's purpose was to make more uniform what had remained a patchwork of federal and [1] Mental Health 50 individual state registration systems, with O. Effect of Assessment or Determination; loopholes and deficiencies that had resulted in Notice and Registration an estimated 100,000 sex offenders becoming SORNA requires a sex offender who changes missing or lost. Sex Offender Registration and his residence to appear, within three business Notification Act, § 102 et seq., 42 U.S.C.A. § days of the change, in person in at least one 16901 et seq. jurisdiction, but not a foreign country, where he resides, works, or studies, and to inform that Cases that cite this headnote jurisdiction of the address change. Sex Offender WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 1 EFTA01113471 Nichols v. U.S-aSgC4.:1-6-00654-PJH Document 37-1 Filed 04/06/16 Page 2 of 6 2016 WL 1278473 •1 The Sex Offender Registration and Notification Act [6] Mental Health (SORNA) makes it a federal crime for certain sex offenders O... Offenses and Prosecutions to "knowingly fai[I] to register or update a registration," 18 Sex offenders are not able to escape punishment U.S.C. § 2250(a)(3), and requires that offenders who move for leaving the United States without notifying to a different State "shall, not later than 3 business days the jurisdictions in which they lived while in after each change of name, residence, employment, or student this country, given the criminalization of the status," inform in person "at least 1 jurisdiction involved knowing failure to provide information required pursuant to [42 U.S.C. § 16913(a) 1 ... of all changes" to by SORNA relating to intended travel in foreign required information, § 16913(c). A § 16913(a) jurisdiction commerce. 18 U.S.C.A. § 2250(b); Sex Offender is "each jurisdiction where the offender resides, ... is an Registration and Notification Act, § 102 et seq., employee, and ... is a student." 42 U.S.C.A. § 16901 et seq. Petitioner Nichols, a registered sex offender who moved from Cases that cite this headnote Kansas to the Philippines without updating his registration, was arrested, escorted to the United States, and charged [7] Mental Health with violating SORNA. After conditionally pleading guilty, Offenses and Prosecutions Nichols argued on appeal that SORNA did not require him to Registered sex offender's conduct of leaving update his registration in Kansas. The Tenth Circuit affirmed his conviction, holding that though Nichols left Kansas, his home in the Kansas City, Kansas area, and moving to the Philippines without notifying the State remained a "jurisdiction involved" for SORNA Kansas authorities of his change in residence, purposes. violated the statute criminalizing the knowing failure to provide information required by Held : SORNA did not require Nichols to update his SORNA relating to intended travel in foreign registration in Kansas once he departed the State. Pp. — commerce. 18 U.S.C.A. § 2250(b); Sex Offender Registration and Notification Act, § 102 et seq., 42 U.S.C.A. § 16901 et seq. (a) SORNA's plain text dictates this holding. Critical here is § 16913(a)'s use of the present tense. Nichols once resided Cases that cite this headnote in Kansas, but after moving, he "resides" in the Philippines. It follows that once Nichols moved, he was no longer required to appear in Kansas because it was no longer a [8] Mental Health "jurisdiction involved." Nor was he required to appear in Offenses and Prosecutions the Philippines, which is not a SORNA "jurisdiction." § Registered sex offender's conduct of leaving 1691 1(10). Section 16913(c)'s requirements point to the same his home in the Kansas City, Kansas area, and conclusion: Nichols could not have appeared in person in moving to the Philippines without notifying Kansas "after" leaving the State. SORNA's drafters could Kansas authorities of his change in residence, have required sex offenders to deregister in their departure violated the Kansas statute requiring a person jurisdiction before leaving the country had that been their required to register as a sex offender to register intent. Pp. — in person upon any commencement, change or termination of residence location. West's K.S.A. (b) The Government resists this straightforward reading. It 22-4905(g). argues that a jurisdiction where an offender registers remains "involved" even after the offender leaves, but that would Cases that cite this headnote require adding the extra clause "where the offender appears on a registry" to § 16913(a). Also unconvincing is the claim that § 16914(a)(3)'s requiring the offender to provide each address where he "will reside" shows that SORNA contemplates the possibility of an offender's updating his Syllabus registration before he actually moves. That provision merely WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. EFTA01113472 Nichols v. U.S-aSgd.:3-6-00654-PJH Document 37-1 Filed 04/06/16 Page 3 of 6 2016 WL 1278473 lists the pieces of information to be updated; it says nothing must decide whether federal law required Nichols to update about an obligation to update in the first place. Finally, the his registration in Kansas to reflect his departure from the Government's argument that Nichols actually experienced State. two "changes" of residence—first, when he turned in his apartment keys in Kansas, and second, when he checked into his Manila hotel—is inconsistent with ordinary English usage. Pp. — (c) Although "the most formidable argument concerning A the statute's purposes [cannot] overcome the clarity [found] Following the high-profile and horrific rape and murder in the statute's text," Kloeckner v. Solis, 568 U.S. of 7—year—old Megan Kanka by her neighbor, States in n. 4, 133 S.Ct. 596, 607, n. 4, 184 L.Ed.2d 433, the Court is mindful of those purposes and notes that its the early 1990's began enacting registry and community- notification laws to monitor the whereabouts of individuals interpretation is not likely to create deficiencies in SORNA's previously convicted of sex crimes. See Smith v. Doe, 538 scheme. Recent legislation by Congress, as well as existing state-law registration requirements, offers reassurance that U.S. 84, 89, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); Filler, Making the Case for Megan's Law, 76 Ind. L.J. 315, 315- sex offenders will not be able to escape punishment for 317 (2001). Congress followed suit in 1994 with the Jacob leaving the United States without notifying their departure jurisdictions. Pp. — Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, 108 Stat. 2038, 42 U.S.C. § 14071 et seq. (1994 ed.). Named after an 11—year—old who was 775 F.3d 1225, reversed. kidnapped at gunpoint in 1989 (and who remains missing today), the Wetterling Act conditioned federal funds on •2 ALITO, J., delivered the opinion for a unanimous Court. States enacting sex-offender registry laws meeting certain minimum standards. Smith, 538 U.S., at 89-90, 123 S.Ct. Attorneys and Law Firms 1140. "By 1996, every State, the District of Columbia, and the Federal Government had enacted some variation of a sex- Daniel T. Hansmeier, Kansas City, KA, for Petitioner. offender registry. Id., at 90. 123 S.Ct. 1140. Curtis E. Gannon, Washington, DC, for Respondent. In 2006, Congress replaced the Wetterling Act with the Sex Melody Brannon, Federal Public Defender, Daniel T. Offender Registration and Notification Act (SORNA), 120 Hansmeier, Appellate Chief, Timothy J. Henry, Paige A. Stat. 590, 42 U.S.C. § 16901 et seq. Two changes are pertinent Nichols, Kansas Federal, Public Defender, Kansas City, KA, here. First, Congress made it a federal crime for a sex offender for Petitioner. who meets certain requirements to "knowingly fail] to register or update a registration as required by [SORNA]." 18 Donald B. Verrilli, Jr., Solicitor General, Leslie R. Caldwell, U.S.C. § 2250(a)(3); see Carr v. United States, 560 U.S. 438, Assistant Attorney General, Michael R. Dreeben, Deputy 441-442, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010). Second, Solicitor General, Curtis E. Gannon, Assistant to the Solicitor Congress amended the provisions governing the registration General, James I. Pearce, Attorney, Department of Justice, requirements when an offender moves to a different State. Washington, DC, for Respondent. The original Wetterling Act had directed States to require a sex offender to "register the new address with a designated Opinion law enforcement agency in another State to which the person moves not later than 10 days after such person establishes Justice ALITO delivered the opinion of the Court. residence in the new State, if the new State has a registration Lester Ray Nichols, a registered sex offender living in the requirement." 42 U.S.C. § I4071(b)(5) (1994 ed.) (emphasis Kansas City area, moved to the Philippines without notifying added). Congress later amended this provision to direct States Kansas authorities of his change in residence. For that to require a sex offender to "report the change of address to omission Nichols was convicted of failing to update his sex- the responsible agency in the State the person is leaving, and offender registration, in violation of 18 U.S.C. § 2250(a). We [to] comply with any registration requirement in the new State WESTLAW O2016 Thomson Reuters. No claim to original U.S. Government Works. 3 EFTA01113473 Nichols v. U.S-aSgd.:3-6-00654- H Document 37-1 Filed 04/06/16 Page 4 of 6 2016 WL 1278473 of residence." 42 U.S.C. § 14071(b)(5) (2000 ed.) (emphasis added). The Tenth Circuit affirmed. 775 F.3d 1225 (2014). Following its own precedent in United States v. Murphy, 664 F.3d SORNA repealed this provision of the Wetterling Act. 120 798 (C.A.I0 2011), the panel held that when a sex offender Stat. 600. In its place, federal law now provides: " 'leaves a residence in a state, and then leaves the state entirely, that state remains a jurisdiction involved' " under ■3 "A sex offender shall, not later than 3 business days § 16913. 775 F.3d, at 1229. Over four dissenting votes, the after each change of name, residence, employment, or court denied Nichols's petition for rehearing en bane. 784 F.3d student status, appear in person in at least I jurisdiction 666 (C.A.I 0 2015). In adhering to Murphy, the Tenth Circuit involved pursuant to subsection (a) and inform that reentrenched a split created by the Eighth Circuit's decision in jurisdiction of all changes in the information required for United States v. Lamsford, 725 F.3d 859 (2013). Remarkably, that offender in the sex offender registry." 42 U.S.C. § Lansford also involved a sex offender who moved from the 16913(c) (emphasis added). Kansas City area—on the Missouri side—to the Philippines. Contra the Tenth Circuit's decision below, Lansford held that Subsection (a), in turn, provides: "A sex offender shall that defendant had no obligation to update his registration register, and keep the registration current, in each jurisdiction in Missouri because a sex offender is required "to 'keep the where the offender resides, where the offender is an registration current' in the jurisdiction where he 'resides,' employee, and where the offender is a student." § 16913(a). not a jurisdiction where he 'resided.' " Id., at 861 (citation A sex offender is required to notify only one "jurisdiction omitted). We granted certiorari to resolve the split. 577 U.S. involved"; that jurisdiction must then notify a list of interested —, 136 S.Ct. 445, 193 L.Ed.2d 346 (2015). parties, including the other jurisdictions. §§ 1692I(b)( I )—(7). The question presented in this case is whether the State a sex offender leaves—that is, the State where he formerly resided —qualifies as an "involved" jurisdiction under § 16913. II •4 [1] As noted, Nichols was required to "appear in person in at least I jurisdiction involved pursuant to subsection (a) B and inform that jurisdiction of his change of residence. 42 U.S.C. § 16913(c). Subsection (a) mentions three possible In 2003, Nichols was convicted of traveling with intent to jurisdictions: "where the offender resides, where the offender engage in illicit sexual conduct with a minor, in violation is an employee, and where the offender is a student." of 18 U.S.C. § 2423(b). Although his offense predated § 16913(a). The Philippines is not a "jurisdiction" under SORNA's enactment, Nichols was nevertheless required SORNA; no foreign country is. See § 16911(10). Putting upon his eventual release in December 2011 to register these provisions together, SORNA therefore requires a sex as a sex offender in Kansas, where he chose to settle. offender who changes his residence to appear, within three 28 CFR 72.3 (2015). Nichols complied with SORNA's business days of the change, in person in at least one registration requirements—until November 9, 2012, when he jurisdiction (but not a foreign country) where he resides, abruptly disconnected all of his telephone lines, deposited works, or studies, and to inform that jurisdiction of the his apartment keys in his landlord's drop•box, and boarded a address change. Critically, § 16913(a) uses only the present flight to Manila. When Nichols was a no-show at mandatory tense: "resides," "is an employee," "is a student." A sex-offender treatment, a warrant was issued revoking his person who moves from Leavenworth to Manila no longer supervised release. With the assistance of American security "resides" (present tense) in Kansas; although he once resided forces, local police in Manila arrested Nichols in December in Kansas, after his move he "resides" in the Philippines. 2012, and federal marshals then escorted him back to the It follows that once Nichols moved to Manila, he was no United States, where he was charged with one count of longer required to appear in person in Kansas to update his "knowingly failing] to register or update a registration registration, for Kansas was no longer a "jurisdiction involved as required by [SORNAI," 18 U.S.C. § 2250(a)(3). After pursuant to subsection (a)" of § 16913. unsuccessfully moving to dismiss the indictment on the ground that SORNA did not require him to update his The requirement in § 16913(c) to appear in person and registration in Kansas, Nichols conditionally pleaded guilty, register "not later than 3 business days after each change of ... reserving his right to appeal the denial of his motion. WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 4 EFTA01113474 Nichols v. U.S-faSgth.:1.6-00 654-PJH Document 37-1 Filed 04/06/16 Page 5 of 6 2016 WL 1278473 residence" points to the same conclusion. Nichols could not Relatedly, the Government points out that among the pieces have appeared in person in Kansas "after" leaving the State. of information a sex offender must provide as part of his To be sure, one may argue that the day before his departure registration is "[t]he address of each residence at which the was "not later than 3 business days after" his departure, but sex offender resides or will reside." § 16914(a)(3) (emphasis no one in ordinary speech uses language in such a strained added). The use of the future tense, says the Government, and hypertechnical way. shows that SORNA contemplates the possibility of an offender's updating his registration before actually moving. [2] If the drafters of SORNA had thought about the problem But § 16914(a) merely lists the pieces of information that of sex offenders who leave the country and had sought to a sex offender must provide if and when he updates his require them to (de)register in the departure jurisdiction, they registration; it says nothing about whether the offender has an could easily have said so; indeed, that is exactly what the obligation to update his registration in the first place. amended Wetterling Act had required. 42 U.S.C. § 14071(b) (5) (2000 ed.) ("report the change of address to the responsible •5 [4] Finally, the Government argues that Nichols agency in the State the person is leaving"). It is also what actually experienced not one but two "changes" of Kansas state law requires: Nichols had a duty to notify, residence—the first when he "abandoned" his apartment in among other entities, "the registering law enforcement agency Leavenworth by turning in his keys, and the second when or agencies where last registered." Kan. Stat. Ann. § 22- he checked into his hotel in Manila. On the Government's 4905(g) (2014 Cum. Supp.) (emphasis added). Congress view, a sex offender's "residence information will change could have chosen to retain the language in the amended when he leaves the place where he has been residing, and it Wetterling Act, or to adopt locution similar to that of the will change again when he arrives at his new residence. He Kansas statute (and echoed in the statutes of many other must report both of those changes in a timely fashion." Brief States, cf. Brief for Petitioner 6, n. 1). It did neither. SORNA's for United States 21. We think this argument too clever by plain text—in particular, § 16913(a)'s consistent use of the half; when someone moves from, say, Kansas City, Kansas, present tense—therefore did not require Nichols to update his to Kansas City, Missouri, we ordinarily would not say he registration in Kansas once he no longer resided there. moved twice: once from Kansas City, Kansas, to a state of homelessness, and then again from homelessness to Kansas City, Missouri. Nor, were he to drive an RV between the cities, would we say that he changed his residence four times III (from the house on the Kansas side of the Missouri River to [3] The Government resists this straightfonvard reading a state of homelessness when he locks the door behind him; of the statutory text, arguing instead that once an offender then to the RV when he climbs into the vehicle; then back to registers in a jurisdiction, "that jurisdiction necessarily homelessness when he alights in the new house's driveway; remains 'involved pursuant to subsection (a),' because the and then, finally, to the new house in Missouri). And what if offender continues to appear on its registry as a current he were to move from Kansas to California and spend several resident." Brief for United States 24. But § 16913(a) lists nights in hotels along the way? Such ponderings cannot be only three possibilities for an "involved" jurisdiction: "where the basis for imposing criminal punishment. "We interpret the offender resides, where the offender is an employee, criminal statutes, like other statutes, in a manner consistent and where the offender is a student." Notably absent is with ordinary English usage." Abramski v. United States, "where the offender appears on a registry." We decline the 573 U.S. —, 134 S.Ct. 2259, 2277, 189 L.Ed.2d Government's invitation to add an extra clause to the text of 262 (2014) (Scalia, J., dissenting); Flores-Figueroa v. United § 16913(a). As we long ago remarked in another context, States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 "[w]hat the government asks is not a construction of a statute, (2009). In ordinary English, Nichols changed his residence but, in effect, an enlargement of it by the court, so that what just once: from Kansas to the Philippines. was omitted, presumably by inadvertence, may be included within its scope. To supply omissions transcends the judicial [5] We are mindful that SORNA's purpose was to "make function." Iselin v. United States, 270 U.S. 245, 251,46 S.Ct. more uniform what had remained 'a patchwork of federal 248, 70 L.Ed. 566 (1926). Just so here. and 50 individual state registration systems,' with 'loopholes and deficiencies' that had resulted in an estimated 100,000 sex offenders becoming 'missing' or 'lost.' " United States WESTLAW © 2016 Thomson Reuters. No claim to original U.S. Government Works. 5 EFTA01113475 Nichols y. U.S-laSg&Leigefics0654-PJH Document 37-1 Filed 04/06/16 Page 6 of 6 2016 WL 1278473 information therein," et cetera. § 6(aXI)(B), 130 Stat. 22, to v. Kebodeaut 570 U.S. —, — —, 133 S.Ct. 2496, 2505, 186 L.Ed.2d 540 (2013) (citation omitted). Yet be codified at 42 U.S.C. § 169 I4(a)(7). Both parties agree that the new law captures Nichols's conduct. Supp. Brief for "even the most formidable argument concerning the statute's United States 3; Reply Brief 10; Tr. of Oral Arg. 18, 35. purposes could not overcome the clarity we find in the statute's text." Kloeckner v. Solis, 568 U.S. —, n. 4, And, of course, Nichols's failure to update his registration in Kansas violated state law. Kan. Stat. Ann. § 22-4905(g). 133 S.Ct. 596, 607, n. 4, 184 L.Ed.2d 433 (2012). We are thus reassured that our holding today is not likely to [6] [7] [8] Our interpretation of the SORNA provisions create "loopholes and deficiencies" in SORNA's nationwide sex-offender registration scheme. at issue in this case in no way means that sex offenders will be able to escape punishment for leaving the United States without notifying the jurisdictions in which they lived 3 while in this country. Congress has recently criminalized *6 The judgment of the Court of Appeals for the Tenth the "knowinigl failure] to provide information required by [SORNA] relating to intended travel in foreign commerce." Circuit is reversed. International Megan's Law to Prevent Child Exploitation It is so ordered. and Other Sexual Crimes Through Advanced Notification of Traveling Sex Offenders, Pub. L. 114-119, § 6(bX2), 130 Stat. 23, to be codified at 18 U.S.C. § 2250(b). All Citations Such information includes "anticipated dates and places of departure, arrival, or return[;] carrier and flight numbers for S.Ct. ---, 2016 WL 1278473 air travel [11 destination country and address or other contact Footnotes * The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. End of Document O2016 Thomson Reuters. 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