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Tenth Circuit Holds Sex Offenders Who Leave U.S. Must Still Register

The Tenth Circuit Court of Appeals held on December 23, 2011 that a Utah sex offender must register in his home state even if he intends to permanently leave the U.S. to live in another country. Kevin Daniel Murphy, convicted of aggravated sexual assault and aggravated sexual abuse of a child, absconded from the Bonneville Community Correction Center in Salt Lake City in 2007 before fleeing to California, Mexico and then to Belize.

Murphy moved to Belize under an assumed name because he erroneously thought that Belize’s government would not extradite him. However, he was deported to the United States because he lacked proper immigration papers, and was subsequently prosecuted and convicted in federal court for violating the Sex Offender Registration and Notification Act (SORNA), 48 U.S.C. § 2250. Murphy appealed his conviction and two-year sentence.

The Tenth Circuit found that Murphy’s intention to leave the country did not relieve him of his obligation to register. “For [registration] purposes, a sex offender continues to reside in a state even after a change in residence or employment, both of which trigger reporting obligations, even if the offender eventually leaves the state,” the appellate court wrote. “Therefore, even if an offender abandons his current residence and job with the intention of moving out of the country, he must update his registration to reflect his new status. Although SORNA does not require sex offenders living abroad to continually return to the United States to update their registrations, Murphy violated SORNA by failing to notify Utah of a change of status – specifically, his escape from Bonneville – that occurred while he was still residing in that state.”

Based on the ruling in this case, sex offenders must notify the jurisdiction in which they live and are registered of any change in address or status, which includes permanently moving out of the state or country. According to SORNA, and following the appellate ruling in United States v. Van Buren, 599 F.3d 170 (2d Cir. 2010), cert. denied, a “permanent abandonment of an abode constitutes a change of residence ... Congress’s goal in enacting SORNA was to ensure that sex offenders could not avoid registration requirements by moving out of state ... the record demonstrates Murphy knowingly violated SORNA by failing to update his registration....”

Judge Carlos F. Lucero dissented, saying that “these facts are not in dispute, but their legal implication is....” He noted that after absconding, Murphy was in Utah “mere hours” while leaving the state on a bus, and that the court must first accept an “absurd premise” that a moving bus constitutes a “home or other place where [an] individual habitually lives” in order to invoke penalties under SORNA.

“We should look to the statutory definition of the term and begin with the ordinary meaning ... of the term [‘resides’],” Lucero wrote, citing Hackwell v. United States, 491 F.3d 1229 (10th Cir. 2007). He disagreed that Van Buren applied and concluded by stating, “Our duty as a court is to apply SORNA’s plain language and leave it to Congress to change the statute if it desires to do so.” See: United States v. Murphy, 664 F.3d 798 (10th Cir. 2011).

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Related legal cases

United States v. Murphy

United States v. Van Buren