United States of America v. KT Burgee, also known as Kape Teal Burgee

United States Court of Appeals
For the Eighth Circuit
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No. 19-3034
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
KT Burgee, also known as Kape Teal Burgee
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: October 20, 2020
Filed: February 24, 2021
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Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.
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SMITH, Chief Judge.
KT Burgee pleaded guilty to sexual exploitation of a minor under South Dakota
law. For two years, he regularly registered as a sex offender as required by the federal
Sex Offender Registration and Notification Act (SORNA). Then, he stopped. Burgee
was charged and found guilty of failing to register under SORNA in federal district

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court.1 Burgee’s SORNA obligation arose because he had been convicted of an
offense that involved “conduct that by its nature is a sex offense against a minor.” 34
U.S.C. § 20911(7)(I). On appeal, he urges us to overrule our decision in United States
v. Hill, 820 F.3d 1003 (8th Cir. 2016); reverse the district court for relying on
unreliable evidence; and hold § 20911(7)(I) void for vagueness. We deny each of
these claims for relief and affirm the district court.
I. Background
In June 2014, Burgee pleaded guilty to violating a South Dakota statute titled
“Sexual exploitation of a minor.”2 The factual basis for the plea was this: He “had
contact with a minor,” and “his DNA was found on her neck and . . . in her
underwear.” Mem. in Supp. of Def.’s Mot. to Dismiss Indictment, Ex. C, at 7:5–8,
United States v. Burgee, No. 3:18-cr-30164-RAL-1 (D.S.D. 2019), ECF No. 27-3. At
the plea hearing, Burgee acknowledged that his plea would require him to register as
a sex offender and undergo a psychosexual evaluation.
As required, Burgee registered as a sex offender pursuant to both SORNA and
South Dakota law. But in September 2016, he stopped registering. Two years later,
Burgee was arrested and indicted by a federal grand jury for failing to register under
SORNA, in violation of 18 U.S.C. § 2250(a).
During the federal proceedings, Burgee filed a motion to dismiss the
indictment, arguing three grounds for relief. First, he contended that the district court
1The Honorable Roberto A. Lange, Chief Judge, United States District Court
for the District of South Dakota.
2In relevant part, the statute provides, “A person is guilty of sexual exploitation
of a minor if the person causes or knowingly permits a minor to engage in an activity
or the simulation of an activity that: (1) Is harmful to minors . . . .” S.D. Codified
Laws § 22-22-24.3.
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should apply the categorical approach to determine whether his state-law conviction
qualified as a sex offense under § 20911(7)(I). Second, he averred that even if the
district court could properly apply the alternative circumstance-specific approach, it
should look only to evidence used for the plea hearing. Lastly, he argued
§ 20911(7)(I) should be declared void for vagueness. The district court denied his
motion as to each of these grounds. The case proceeded to a bench trial where Burgee
renewed his motion to dismiss. It was again denied.
During the trial, the district court heard evidence additional to that relied on by
the state court in Burgee’s plea hearing. Specifically, the government submitted video
of the minor victim’s forensic interview, which was recorded three days after Burgee
committed the offending acts.3 In her interview, the 14-year-old girl recounted how
Burgee attended her mother’s party. During the party, she was sleeping in bed with
her little sister. She awakened with Burgee beside her and kissing her face. Burgee
took off her clothes and raped her. She recalled feeling fluid coming out of her vagina
afterwards. The district court also heard evidence from a nurse practitioner who
evaluated the 14-year-old girl twice within two and a half weeks of the underlying
conduct. The nurse practitioner found that the girl’s injuries were consistent with rape
and took swabs to collect DNA foreign to the girl. And the government presented a
forensic scientist who analyzed semen found on the girl’s underwear. It matched
Burgee’s DNA. The district court also admitted Burgee’s state sex-offender
registration materials in which Burgee acknowledged his duty to register under South
Dakota law.
The district court found that Burgee had been convicted of a qualifying
SORNA sex offense—i.e., “an offense against a minor that involves . . . [a]ny conduct
that by its nature is a sex offense against a minor.” 34 U.S.C. § 20911(7)(I). Because
3Burgee waived hearsay and foundation objections to the video interview.
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the qualifying-offense element was the only element of his conviction that Burgee
challenged, the district court found him guilty of failing to register as a sex offender.
II. Discussion
Burgee argues that the district court should be reversed for three reasons. First,
he argues that the district court should have employed the categorical approach, not
the circumstance-specific approach, to determine whether his conviction qualified as
a sex offense under § 20911(7)(I). Next, he contends that, even under the
circumstance-specific approach, the district court should have limited its review to
evidence used at his plea hearing because it was the only reliable evidence. Finally,
Burgee urges us to find § 20911(7)(I) void for vagueness.
SORNA obligates those identified as sex offenders to register and maintain
current information with the appropriate authorities. As relevant here, it defines a sex
offender as a person “convicted of” “a criminal offense that is a specified offense
against a minor.” 34 U.S.C. § 20911(1) & (5)(A)(ii). And a “specified offense against
a minor” includes “an offense against a minor that involves . . . [a]ny conduct that by
its nature is a sex offense against a minor.” Id. § 20911(7)(I). Put simply, a sex
offender under § 20911(7)(I) is a person who was convicted of an offense against a
minor that involved conduct that by its nature is a sex offense against a minor.
A. Circumstance-Specific Approach
When determining whether a defendant’s prior conviction falls within the
ambit of a federal statute, courts apply different approaches depending on the
statutory language.4 This court employs the circumstance-specific approach under
4For example, in Nijhawan v. Holder, the Supreme Court held that a statutory
provision, which read “an offense that . . . involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000,” required the circumstance-specific
approach because “the italicized language” “refers to the particular circumstances in
which an offender committed a (more broadly defined) fraud or deceit crime on a
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§ 20911(7)(I). Under this approach, we examine the specific conduct the defendant
engaged in while committing the underlying crime. Hill, 820 F.3d at 1005. Burgee
urges us to use the categorical approach. Under that approach, courts must determine
if the ordinary case, or generic commission, of the underlying crime falls within the
statute. See Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).
In Hill, we held that § 20911(7)(I) “manifestly invites” application of the
circumstance-specific approach. 820 F.3d at 1005. Here, the district court followed
the circumstance-specific approach to determine that Burgee’s underlying conduct
was “conduct that by its nature is a sex offense against a minor.” 34 U.S.C.
§ 20911(7)(I). But Burgee asks us to overrule Hill and instead apply the categorical
approach. According to Burgee, Hill’s holding is suspect because of the subsequent
Supreme Court decisions in Dimaya and Davis. See Gresham v. Swanson, 866 F.3d
853, 855 (8th Cir. 2017) (explaining that a prior panel decision controls “unless an
intervening Supreme Court decision has superseded it”).
Dimaya and Davis, however, are distinguishable. In Dimaya and Davis, the
Supreme Court interpreted 18 U.S.C. §§ 16(b) and 924(c)(3)(B), respectively. Both
statutes define, in relevant part, “crime of violence” as an “offense that . . . by its
nature, involves a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.” 18 U.S.C. §§ 16(b)
& 924(c)(3)(B). In both cases, the Court applied the categorical approach, relying
heavily on the term offense, which meant “a generic crime,” not “the specific acts in
particular occasion.” 557 U.S. 29, 32 (2009) (alteration in original) (quoting 8 U.S.C.
§ 1101(a)(43)(M)(i)). And, as discussed below, the Supreme Court in United States
v. Davis addressed a statutory provision defining a qualifying offense as one “that is
a felony” and “that by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the
offense” and stated that “the statutory text commands the categorical approach.” 139
S. Ct. 2319, 2324, 2328 (2019) (quoting 18 U.S.C. § 924(c)(3)(B)).
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which an offender engaged on a specific occasion.” Davis, 139 S. Ct. at 2328
(quoting Nijhawan, 557 U.S. at 33–34); see also Dimaya, 138 S. Ct. at 1217
(explaining that the statutory “text creates no draw: Best read, it demands a
categorical approach”). Thus, it was the statutory text in Davis and Dimaya that
required the Court “to look to the elements and the nature of the offense of
conviction, rather than to the particular facts relating to petitioner’s crime.” Davis,
139 S. Ct. at 2328 (quoting Leocal v. Ashcroft, 543 U.S. 1, 7 (2004)); see also
Dimaya, 138 S. Ct. at 1218 (stating that “the absence of terms alluding to a crime’s
circumstances, or its commission, makes a fact-based interpretation an uncomfortable
fit”).
Hill survives the decisions in Davis and Dimaya. Just as Davis’s and Dimaya’s
holdings are based on statutory text, so too is Hill’s holding. The Hill court held that
because § 20911(7)(I) explicitly references the offense conduct, the statutory “text
evidently commands . . . a circumstance-specific approach.” Hill, 820 F.3d at 1006.
Conduct, after all, is “[t]he way a person acts.” Conduct, The American Heritage
Dictionary of the English Language (5th ed. 2011). Thus, Hill explained that
arguments for a categorical approach “simply founder[] on the plain words of the
statute.” Hill, 820 F.3d at 1005. In fact, the Hill court found the text so clear that it
declined to give deference to the Attorney General’s regulation that indicated the
categorical approach should apply to the statute. Id. at 1006. Hill’s precedential value
has not been altered, and it forecloses Burgee’s argument.
B. Reliable Evidence
Burgee also challenges the district court’s reliance on evidence that was not
used during his plea hearing. According to Burgee, district courts employing the
circumstance-specific approach should only consider the “facts the defendant
admitted or was convicted of as shown by the prior judicial record.” Appellant’s Br.
at 15–16. The relevant documents under his approach would be “the statutory
subdivision of conviction, the charging instrument (insofar as it tracks the actual
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conviction, as here), the judgment of conviction, and—most crucial—the plea
colloquy and factual basis.” Appellant’s Reply Br. at 7 n.6.
Again, Hill resolves Burgee’s issue. In Hill we explicitly declined to limit
district courts’ review under § 20911(7)(I) to specific documents, like those the
Supreme Court had laid out in Shepard v. United States, 544 U.S. 13 (2005). 820 F.3d
at 1005. In Shepard, the Supreme Court held that when sentencing courts apply the
categorical approach, they are “generally limited to examining the statutory
definition, charging document, written plea agreement, transcript of plea colloquy,
and any explicit factual finding by the trial judge to which the defendant assented.”
544 U.S. at 16. The Shepard Court explained that a sentencing court could not delve
beyond the facts the defendant was convicted of to “make a disputed finding of fact”
because the Constitution “guarantee[s] a jury’s finding of any disputed fact essential
to increase the ceiling of a potential sentence.” Id. at 25.
In Hill, because we did not apply the categorical approach, our course tacked
differently. Instead of limiting district courts to specific documents, we held that they
may “consider any reliable evidence.” 820 F.3d at 1005. This does not run afoul of
Shepard because the constitutional evidentiary concerns that arise during factfinding
at sentencing are not present at the guilt phase of a trial. Under Shepard, a sentencing
court cannot engage in factfinding because there is no jury present to determine the
facts. Shepard, 544 U.S. at 25 (stating that “the Sixth and Fourteenth Amendments
. . . guarantee a jury’s finding of any disputed fact essential to increase the ceiling of
a potential sentence”). Under Hill, defendants get a trial and thus have the right to a
jury. This is just what the Sixth Amendment contemplates: “[A] jury—not a
sentencing court—will find such facts, unanimously and beyond a reasonable doubt.”
Descamps v. United States, 570 U.S. 254, 269 (2013). Burgee got just such a trial.
The court conducted a trial to determine the facts of Burgee’s offense conduct. The
government had to prove the facts beyond a reasonable doubt, and Burgee had the
option to exercise his right to a jury trial. He chose not to.
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When determining whether a defendant’s prior offense involves “conduct that
by its nature is a sex offense against a minor,” a district court may admit any reliable
evidence. Hill, 820 F.3d at 1005. Reliable evidence is simply evidence that is
trustworthy enough to be admissible under the rules of evidence. Cf. Kuhn v. Wyeth,
Inc., 686 F.3d 618, 625 (8th Cir. 2012) (“The Supreme Court explained that
evidentiary reliability means trustworthiness.”); see also United States v. Sutton, 916
F.3d 1134, 1140 (8th Cir. 2019) (holding that the challenged hearsay was “not
reliable” because the “witnesses were at times admittedly untruthful, had accounts
that were internally inconsistent and inconsistent with one another, and demonstrated
motives to minimize their own involvement in the assault”). District courts regularly
perform factfinding and are well equipped to assess evidence admissibility. The
district court did so here. Burgee does not challenge the district court’s inclusion of
any specific piece of evidence, so our inquiry is at an end.
C. Vagueness
Finally, Burgee challenges § 20911(7)(I) as void for vagueness. We review
void-for-vagueness challenges de novo. United States v. Buie, 946 F.3d 443, 445 (8th
Cir. 2019).
When reviewing for vagueness, we first determine if a statute is vague as
applied to the defendant’s conduct, and only if it is will we consider whether a statute
is facially unconstitutional. United States v. Bramer, 832 F.3d 908, 909–10 (8th Cir.
2016). This is because “a ‘plaintiff who engages in some conduct that is clearly
proscribed cannot complain of the vagueness of the law as applied to the conduct of
others.’” Adam & Eve Jonesboro, LLC v. Perrin, 933 F.3d 951, 958 (8th Cir. 2019)
(quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 20 (2010)). Thus, if “the
statute gave adequate warning, under [the defendant’s] specific set of facts, that the
defendant’s behavior was a criminal offense,” then the statute is not vague. United
States v. Palmer, 917 F.3d 1035, 1038–39 (8th Cir. 2019) (quoting United States v.
Washam, 312 F.3d 926, 931 (8th Cir. 2002)).
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As we have explained, the district court’s factual findings were proper.
Burgee’s actions with the 14-year-old victim of his offense constituted “conduct that
by its nature is a sex offense against a minor” under § 20911(7)(I). Burgee failed to
register as a sex offender under SORNA and South Dakota law for two years. His
conduct was clearly proscribed. Section 20911(7)(I) is thus not void for vagueness
as applied to Burgee.
III. Conclusion
We follow the precedent established in Hill and employ the circumstance-
specific approach to the application of § 20911(7)(I). The district court used reliable
evidence in finding the requisite facts by putting the government’s proof through the
rigors of the admissibility standards of the rules of evidence in a contested hearing.
We also conclude that § 20911(7)(I) is not void for vagueness as applied to Burgee.
Accordingly, we affirm.
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