UNITED STATES OF AMERICA, Appellant.
BLAKE BROWN, JR., Appellant
Submitted Under Third Circuit LAR 34.1(a) December 19, 2013
On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 11-cr-00174-001) District Judges: Hon. Joy Flowers Conti
Donovan J. Cocas, Esq. Office of United States Attorney Counsel for the United States of America
Lisa B. Freeland, Esq. Kimberly R. Brunson, Esq. Office of Federal Public Defender Counsel for Blake Brown, Jr.
Before: JORDAN, VANASKIE and GREENBERG, Circuit Judges.
JORDAN, Circuit Judge.
Both the government and the defendant, Blake Brown, Jr., appeal an order of the United States District Court for the Western District of Pennsylvania dismissing the indictment of Brown for failing to register as a sex offender. For the reasons that follow, we will vacate the order and direct that the indictment be reinstated.
The Sex Offender Registration and Notification Act ("SORNA"), 42 U.S.C. § 16901 et seq., requires individuals convicted of certain sex crimes to submit identifying information to state and federal sex offender registries. §§ 16912(a), 16913–16914, 16919(a). It is a violation of SORNA for such individuals to travel in "interstate or foreign commerce" and "knowingly fail to register or update a registration." 18 U.S.C. § 2250(a). While the term "sex offender" is tautologically defined as someone who has been convicted of a "sex offense, " 42 U.S.C. § 16911(1), Congress was careful to delineate specific circumstances in which a conviction involving sex will not lead to classification as an offender under SORNA. Among other things, 
[a]n offense involving consensual sexual conduct is not a sex offense for the purposes of [SORNA] ... if the victim was at least 13 years old and the offender was not more than 4 years older than the victim.
42 U.S.C. § 16911(5)(C) (emphasis added). That exception is the pivot on which this case turns.
In August 2011, Brown was charged with failing to register under SORNA based on his 2003 conviction for third degree lewd molestation in violation of Florida Statute § 800.04(5). Although he had previously registered when he moved from Florida to New York, he failed to register after he later moved to Pennsylvania in October 2010. At the time of his arrest, he was staying with his father in McKeesport, Pennsylvania, and admitted knowing that he needed to register, though he claimed he "did not have the time" to do so. (PSR ¶ 43.)
Brown pled guilty as charged, but, when it came time for sentencing, the District Court sua sponte raised various concerns regarding SORNA's applicability. In particular, the Court expressed doubt that Brown was indeed a "sex offender, " given that - according to the U.S. Probation Office's Presentence Investigation Report - he was 17 years old and his victim was 13 years old at the time they engaged in the consensual sexual contact that was the basis of Brown's 2003 conviction.As the Court saw it, giving Brown the benefit of SORNA's "not more than 4 years older" exception was "a question of ... the interests of justice." (App. at 203.) The Court therefore decided to withdraw its previous approval of Brown's guilty plea.
Although the government and Brown eventually stipulated that Brown's "date of birth was exactly four years and four months (52 months) prior to the date of birth of the victim in the offense of Lewd Molestation" (Supp. App. at 50-51), the District Court, in an order dismissing the indictment,  held that the exception in 42 U.S.C. § 16911(5)(C) is "grievous[ly]" ambiguous as applied to Brown (App. at 149). According to the Court, a "colloquial" reading would render Brown eligible for the exception in the statute since, "[t]he common question,
'how old are you?' is colloquially interpreted to mean, 'how many complete years have transpired since the date of your birth?'" (Id. at 147 & n.2.) Because Brown was 17 years old and the victim was 13 years old at the time ...