Friday, December 19, 2014

1 year = 365 days

We need to update you on some recent decisions published by the Tenth Circuit. Here's one:
United States v. Black (Judge Murphy, with Judges Gorsuch and Sentelle (D.C. Cir.))
The case is one of statutory interpretation. The statute at issue is one provision of the Sex Offender Registration and Notification Act (SORNA): 42 U.S.C. 16911(5)(C). The provision excludes certain sex convictions from registration requirements, namely, those that involve consensual sexual conduct where the victim "was at least 13 years old and the offender was not more than 4 years older than the victim."
Jay Black was 18 when he had consensual sex with a 14 year old. Using simple arithmetic, Black argued that he should not have to register as a sex offender because 18 - 14 = 4, and so he was exactly 4 years older than the victim, and, therefore "not more than 4 years older than the victim."
The government countered with its own arithmetic: a comparison of the two birthdates revealed that Black was actually 55 months older than the victim, and so he was "more than 4 years older."
Unsurprisingly, the Tenth Circuit sided with the government: "not more than 4 years older" means "not more than 1461 days or 48 months older than the victim." In other words, the Tenth Circuit defined "4 years" in terms of days (or months, but days is more precise). There is some sense to this. For instance, when our clients receive a sentence of 4 years' probation, we expect them to serve exactly 1461 days on probation. We do not expect them to serve anywhere from 1461 days to 1826 days on probation.
The Tenth Circuit itself noted a similar problem with the defendant's argument: if accepted, other provisions would make criminal conduct otherwise not criminal. The example: a different provision in SORNA that prohibits sex with anyone between the ages of 12 and 16 when the victim is "at least four years younger than" the defendant. If whole numbers are used, the just-turned 20-year old who has sex with the almost-17-year old has committed a crime, even though, when birth dates are consulted, the two are less than 4 years apart in age.
So, in the end, birthdates matter, and 1 year = 365 days (and so on).
Lesson learned.

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