Sex Offender Goes South, As Does His Defense

United States v. Van Buren, No. 08-6262-cr (2d Cir. March 17, 2010) (Walker, Straub, Livingston, CJJ)

A jury convicted Van Buren of failing to comply with the registration requirements of SORNA after he moved from his hotel in Binghamton, New York, to his mother’s house in North Carolina without updating his New York registration or registering in North Carolina.

On appeal, he first raised a host of constitutional challenges, all of which were foreclosed by United States v. Guzman, an intervening decision. See Moving Violations, posted January 7, 2010.

He also claimed that the district court erred in its jury instructions about the scope of SORNA's registration requirements. The statutory scheme requires a convicted sex offender to register, and keep the registration current - including providing the address of his residence - in each jurisdiction where he resides, is employed or is a student. In addition, within three business days after each “change” of residence, the offender must appear in person at an “appropriate office” and inform it of all changes in his information.

In the district court, Van Buren claimed that his termination of his hotel residence in New York was not a “change” in residence because he did not establish a new residence elsewhere. The government countered that leaving the hotel was by itself a sufficient “change” to trigger SORNA. The district court agreed that terminating a residence with no intention of returning requires a sex offender to update his information, and instructed the jury accordingly.

Van Buren pursued this claim on appeal, without success. The circuit held that Van Buren’s terminating his residence in New York to travel to North Carolina with no intention of returning qualified as a “change” in residence under any definition of the word “change.” It was a “change” in the sense of going from “something to nothing” and it was also a change in the sense of “going from something to something else.”

Moreover, regardless of the semantics, the circuit held that it was clear that SORNA covered Van Buren’s conduct. Indeed, its legislative history specifically notes that sex offenders’ moving from one state to another presents the “most significant enforcement issue in the sex offender program.” The statute is therefore not ambiguous such that the rule of lenity would apply.