No. 19-3034 ___________________________

United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

KT Burgee, also known as Kape Teal Burgee

lllllllllllllllllllllDefendant - Appellant ____________

Appeal from United States District Court for the District of South Dakota - Pierre ____________

Submitted: October 20, 2020 Filed: February 24, 2021 ____________ Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges. ____________ 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 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

1 The Honorable Roberto A. Lange, Chief Judge, United States District Court for the District of South Dakota. 2 In 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.

-2- 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 inte