United States v. Lyte

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. SHAWN CHRISTOPHER LYTE, Defendant-Appellant.

No. 21-10316

United States Court of Appeals, Ninth Circuit

May 16, 2023

NOT FOR PUBLICATION

Argued and Submitted April 18, 2023 Phoenix, Arizona

Appeal from the United States District Court for the District of Arizona D.C. No. 4:20-cr-01859-JGZ-JR-1 Jennifer G. Zipps District Judge, Presiding

Before: OWENS and BADE, Circuit Judges, and BAKER, ^[**] International Trade Judge.

MEMORANDUM ^[*]

Shawn Christopher Lyte ("Lyte") appeals his conviction for failing to keep his registration current as required by the Sex Offender Registration and Notification Act ("SORNA"), in violation of 18 U.S.C. § 2250(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review evidence supporting a conviction "in the light most favorable to the prosecution" and will sustain the verdict if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Tuan Ngoc Luong, 965 F.3d 973, 980-81 (9th Cir. 2020) (citations omitted). The district court's findings on SORNA's constitutionality are reviewed de novo. See United States v. Bynum, 327 F.3d 986, 990 (9th Cir. 2003). 1. Given our considerable deference to the verdict, we conclude there is sufficient evidence to support Lyte's conviction. As the parties acknowledge, Lyte stipulated to the first two elements of his SORNA conviction. Lyte's conviction thus turns on whether he "knowingly fail[ed] to register or update a registration as required by" SORNA. 18 U.S.C. § 2250(a)(3). The evidence is undisputed that Lyte was homeless when he resided in Michigan-a fact Lyte concedes before us-and therefore under SORNA's governing regulations he was required to register in every place where he "habitually live[d]," which is any jurisdiction in which he "actually" lived "with some regularity." The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38030, 38061-62 (July 2, 2008). And there is sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Lyte habitually lived in the states where he was sent to work: he very rarely returned to his listed residence, he lived and worked in the various job sites for up to months at a time, and Lyte conceded he essentially lived on the road.

2. Lyte's remaining challenges are without merit. First, he challenges SORNA's constitutionality under the Tenth Amendment, contending that SORNA is an attempt by the federal government to improperly commandeer state resources into implementing a federal enforcement scheme. But the Ninth Circuit has already "join[ed] every other court of appeals that has considered the question" and concluded "that SORNA does not violate the Tenth Amendment's anticommandeering principle" because it "does not compel states or state officials to comply with its requirements," instead relying on Congress's spending power. United States v. Richardson, 754 F.3d 1143, 1146 (9th Cir. 2014) (per curiam).

3. Next, Lyte contends his conviction is void for vagueness under the Fifth Amendment. Lyte raises two arguments in support of this contention.

First, Lyte contends that he believed he was habitually living in Michigan because that is where he "had the most contacts and returned to between jobs." But under SORNA, a sex offender habitually lives anywhere he "lives with some regularity," 73 Fed.Reg. at 38062. Therefore, whether Lyte "had the most contacts" or "returned to" Michigan between jobs is irrelevant to whether Lyte was required to update his registration information under SORNA.

Second, Lyte apparently contends that because federal requirements under SORNA are more rigorous than state law analogues, Lyte could not have been on notice that his conduct was prohibited by SORNA. But Lyte does not explain why more permissive state law regimes impacted his ability to read SORNA's plain text, which requires sex offenders to update their residency information within three business days of a change of that residence. 34 U.S.C. § 20913(c). And to the extent Lyte argues that the application of SORNA to his circumstances is unconstitutionally vague because he relied on guidance he received from state officials, that argument fails because by the time Lyte had received that guidance he was already in violation of SORNA.

AFFIRMED.

BAKER Judge, concurring:

Shawn Lyte, a convicted sex offender as defined in SORNA, is a homeless man who worked for a Michigan employer installing shelving in locations across the United States. As the majority notes, he lived on the road except between jobs when he was called back to Michigan, where he registered as a sex offender. After he traveled to Arizona for work, the federal government charged him under 18 U.S.C. § 2250(a)^[1] with "knowingly fail[ing] to register and update a registration as required by [SORNA] after relocating and traveling in interstate commerce from Michigan to Arizona."

SORNA requires that "[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student." 34 U.S.C. § 20913(a) (emphasis added). To "keep the registration current" means that "[a] sex offender shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) and inform that jurisdiction of all changes in the information required for that offender in the sex offender registry." Id. § 20913(c) (emphasis added). The term "resides" (and, by derivation, "residence") "means, with respect to an individual, the location of the individual's home or other place where the individual habitually lives." Id. § 20911(13).

Here, the district court found that Lyte changed his residence to Arizona and failed to register there within three days as SORNA requires. Thus, I turn to an examination of what it means to change one's residence under SORNA.

The majority correctly notes that "under SORNA's governing regulations [Lyte] was required to register in every place where he 'habitually live[d]." Disposition at 2 (brackets in original) (quoting Office of the Attorney General; The National Guidelines for Sex Offender Registration and Notification, 73 Fed.Reg. 38,030, 38,055, 38,062 (Dep't Justice July 2, 2008) (Guidelines)).

The difficulty lies in the statutory phrase "habitually lives," as the Guidelines admit that it "is not self-explanatory and requires further definition." Id. at 38,061 (emphasis added). To that end, the regulation states that "habitually lived" should "include places in which the sex offender lives with some regularity, and with reference to where the sex offender actually lives, not just in terms of what he would choose to characterize as his home address or place of residence for self-interested reasons." Id. at 38,062.

The majority and the district court end the analysis with the phrase "lives with some regularity," Disposition at 2, but they do not explain what standard they apply to determine what that phrase-which, in my view, is just as vague as "habitually lives"-means in practice. The Guidelines, however, give courts, prosecutors, and convicted sex offenders like Lyte precise direction:

The specific interpretation of this element of "residence" these Guidelines adopt is that a sex offender habitually lives in the relevant sense in any place in which the sex offender lives for at least 30 days. Hence, a sex offender resides in a jurisdiction for purposes of SORNA if the sex offender has a home in the jurisdiction, or if the sex offender lives in the jurisdiction for at least 30 days.

73 Fed.Reg. at 38,062 (emphasis added).^[2]

Lyte did not argue below that the Guidelines' 30-day standard governs the meaning of "residence" for SORNA purposes. On appeal, he cites that standard, but at best argues for its application only by implication-he inexplicably failed to connect the dots. I therefore assume that his presentation of the applicable 30-day standard is inadequate under our normal standards.

Nevertheless, in criminal cases we may notice plain error not properly presented either below or on appeal. See Fed. R. Crim. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.") (emphasis added). Rule 52(b) by its terms is thus an exception to the party-presentation rule. See 3B Wright & Miller, Federal Practice & Procedure-Criminal § 856 (4th ed. Apr. 2023 update) (under Rule 52(b), the "appellate court may take notice of an error on its own motion though it is never put forward by counsel"); see also United States v. Nitzkin, 37 F.4th 1290, 1293 (7th Cir. 2022) (Easterbrook, J.) ("A court of appeals may notice plain error "). Lyte's failure to properly present the Guidelines' 30-day standard therefore does not prevent us from applying plain error review.

There are three threshold requirements for such review: (1) an error must exist (2) that is clear or obvious and (3) that affects "substantial rights." Greer v. United States, 141 S.Ct. 2090, 2096 (2021). This "generally means that there must be 'a reasonable probability that, but for the error, the outcome of the proceeding would have been different.'" Id. (quoting Rosales-Mireles v. United States, 138 S.Ct. 1897, 1904-05 (2018)). "If those three requirements are met, an appellate court may grant relief if it concludes that the error had a serious effect on 'the fairness, integrity or public reputation of judicial proceedings.'" Id. at 2096-97 (quoting Rosales-Mireles, 138 S.Ct. at 1905).

The...