In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2411
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
ISAAC V ASQUEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:07-cr-00565-1—Charles R. Norgle, Sr., Judge.
A RGUED JANUARY 13, 2010—D ECIDED JULY 1, 2010
Before B AUER, M ANION and T INDER, Circuit Judges.
B AUER, Circuit Judge. Issac Vasquez appeals his convic-
tion for knowingly failing to register as a sex offender
after traveling in interstate commerce, in violation of
the Sex Offender Registration and Notification Act
(SORNA), 18 U.S.C. § 2250(a). We affirm.
2 No. 09-2411
I. BACKGROUND
In October 1998, Isaac Vasquez pleaded guilty to Preda-
tory Criminal Sexual Assault, Victim Under the Age of 13
in the Circuit Court of Cook County, Illinois and was
sentenced to six years’ imprisonment in the Illinois De-
partment of Corrections (IDOC). This conviction re-
quired him to register as a sex offender under the Illinois
Sex Offender Registration Act.
After initially registering under the Illinois law, he
moved within Chicago but failed to report this change
of address as required under Illinois law. After being
charged, Vasquez pleaded guilty to Failure to Report a
Change of Address and was sentenced to one year of
imprisonment. Thereafter, Vasquez signed a notification
form acknowledging that he had been advised of his
duty to register as a sex offender under the Illinois Sex
Offender Registration Act, that he understood this duty,
and that his failure to register would constitute a
criminal offense under Illinois law.
After being released on parole on March 15, 2005,
Vasquez disappeared from where he was placed by
Illinois authorities and never returned to the parole
office or any other Illinois law enforcement agency as
required by the conditions of his parole. On or about
March 17, 2005, Illinois issued a warrant for his arrest.
On April 11, 2007, Vasquez was present in Illinois. On
July 3, 2007, Vasquez was found in Los Angeles County,
California, where he was taken into custody by the
United States Marshals Service. After his release from
IDOC custody on parole and until the time of his arrest
No. 09-2411 3
in Los Angeles, California on July 3, 2007, Vasquez failed
to register as a sex offender in Illinois, California, or
any other state.
Thereafter, Vasquez was indicted for knowingly failing
to register as a sex offender under SORNA. After the
district court denied Vasquez’s motion to dismiss the
indictment, the case proceeded to a bench trial on stipu-
lated facts. Vasquez stipulated that his prior sex convic-
tion required him to register under SORNA. After
denying Vasquez’s motion for acquittal, the district
court convicted and sentenced him to a prison term of
twenty-seven months, a supervised release term of three
years, and a $100 special assessment. Vasquez timely
appealed.
II. DISCUSSION
Congress enacted SORNA in 2006, which imposes a
registration requirement on sex offenders, 42 U.S.C.
§ 16913, and a criminal penalty for failure to comply
with the registration requirement, 18 U.S.C. § 2250(a). A
“sex offender” is defined as any individual who is con-
victed of a sex offense under either state or federal law.
42 U.S.C. § 16911(1). Pursuant to SORNA, “[a] sex offender
shall register, and keep the registration current, in
each jurisdiction where the offender resides.” 42
U.S.C. § 16913(a). A sex offender must update his registra-
tion within three business days of a “change of name,
residence, employment, or student status.” 42 U.S.C.
§ 16913(c). A sex offender who does not comply with
SORNA’s obligations faces criminal punishment: “Who-
4 No. 09-2411
ever . . . is required to register under the [Act]; who
“travels in interstate or foreign commerce”; and “know-
ingly fails to register or update a registration as
required by the [Act]; shall be fined under this title or
imprisoned not more than 10 years, or both.” 18 U.S.C.
§ 2250(a).
On appeal, Vasquez does not dispute that more than
three days had elapsed from the date he had most
recently changed his address, requiring him to re-register.
Further, Vasquez is not arguing a lack of notice of the
statute; United States v. Dixon made clear that SORNA
does not violate due process of law, even when there is
no personal notice of the enactment or its requirements.
551 F.3d 578, 584 (7th Cir. 2008), rev’d on other grounds
sub nom. Carr v. United States, No. 08-1301, 2010 WL
2160783, at *4 (U.S. June 1, 2010). Finally, Vasquez cannot
contend that he traveled in interstate commerce prior to
SORNA’s effective date. See Carr, 2010 WL 2160783, at *4.
But Vasquez contends that his conviction should be
reversed because the government presented no evidence
that he “knowingly” violated SORNA when he failed to
register. In addition, Vasquez challenges the constitu-
tionality of SORNA and argues that it violates the Com-
merce Clause because it impermissibly regulates purely
local, non-economic activity and because it does not
require any nexus between a defendant’s travel in inter-
state commerce and a defendant’s failure to register.
We review both the denial of a judgment of acquittal
and the constitutional challenges under the Commerce
Clause de novo. United States v. Moss, 513 F.3d 727, 733
(7th Cir. 2008); United States v. Klinzing, 315 F.3d 803, 806
(7th Cir. 2003).
No. 09-2411 5
A. “Knowingly” Failing to Register
Vasquez argues that SORNA requires proof that a
defendant had specific knowledge that he was required
to register under SORNA. Relying upon Flores-Figueroa v.
United States, 129 S. Ct. 1886, 1890 (2009), Vasquez main-
tains that as a matter of ordinary English grammar, the
word “knowingly” in a statute applies to every subse-
quently listed element of the crime. In Flores-Figueroa,
the Supreme Court held that, in order to convict a de-
fendant of aggravated identity theft for “knowingly
transfer[ring], possess[ing], or us[ing], without lawful
authority, a means of identification of another person,”
the government must prove that defendant knew that
the “means of identification” he or she unlawfully trans-
ferred, possessed, or used did, in fact, belong to another
person. 129 S. Ct. at 1893 (emphasis added). Accordingly,
Vasquez asserts that the government cannot convict
him, absent proof that he knew that SORNA required
him to register. And Vasquez maintains that the
stipulated facts contain no such proof.
This court has not previously addressed whether
SORNA requires a defendant to have specific knowledge
of his federal obligation to register. However, at least
four of our sister circuits have faced this issue, and all
have held that knowledge of the federal obligation
under SORNA is not required. See United States v. Gould,
568 F.3d 459, 468 (4th Cir. 2009); United States v. Whaley,
577 F.3d 254, 262 (5th Cir. 2009); United States v. Baccam,
562 F.3d 1197, 1199-1200 (8th Cir. 2009); United States v.
Griffey, 589 F.3d 1363, 1367 (11th Cir. 2009). Specifically, the
6 No. 09-2411
Eighth Circuit rejected the defendant’s argument that
he could not knowingly violate SORNA because he
was not told of his specific registration obligations
under the law. Baccam, 562 F.3d at 1199-1200. And the
Eleventh Circuit affirmed a defendant’s conviction,
holding that SORNA did not require that a defendant
specifically know that he was violating the statute, only
that he “knowingly” violated a legal registration require-
ment upon relocating. Griffey, 589 F.3d at 1367.
We recently declined to extend the knowledge require-
ment to the age element in 18 U.S.C. § 2423(a), which
prohibits “knowingly transport[ing] an individual who
has not attained the age of 18 years in interstate or
foreign commerce, . . . with intent that the individual
engage in prostitution” United States v. Cox, 577 F.3d
833, 836 (7th Cir. 2009). Cox held that despite the gram-
matical arguments, the most natural reading of § 2423(a)
is that the adverb “knowingly” modifies only the verb
“transports” and does not extend to the victim’s minor
status. Id. Accordingly, while the victim’s age is an
element of the offense (i.e., the government must prove
the victim is under eighteen), the defendant need not
have knowledge of the victim’s age. Cox noted a
departure from Flores-Figueroa is appropriate in inter-
preting § 2423(a) to not require knowledge of the victim’s
age. Cox, 577 F.3d at 838 (citing Flores-Figueroa, 129 S. Ct.
at 1895-96 (Alito, J., concurring)).
Today we join the Fourth, Fifth, Eighth, and Eleventh
Circuits, (and echo our reasoning in Cox), and hold that
SORNA merely requires that a defendant have knowl-
No. 09-2411 7
edge that he was required by law to register as a sex
offender. The government need not prove that, in addi-
tion to being required to register under state law, a defen-
dant must also know that registration is mandated by a
federal statute. In this Court’s view, Flores-Figueroa
did not overrule the long line of cases that have defined
the term “knowingly,” when used in a criminal statute,
to mean “that the defendant realized what he/she was
doing and was aware of the nature of his conduct, and
did not act through ignorance, mistake or accident.” See
Fed. Crim. Jury Inst. of the Seventh Circuit 4.06 (1999).
See also Cox, 577 F.3d at 838. To that end, a defendant
can be convicted under SORNA if the government can
prove that he knew he was required to register as a
sex offender. To the extent that SORNA’s registration
requirements differ from state law requirements, we
need not decide today whether a defendant would be
in violation of SORNA if he complied with his state
law registration obligations but not his federal registra-
tion obligations, when he had not been made aware of
additional obligations under the federal statute.
Here, Vasquez stipulated that he was required to
register as a sex offender, had previously faced jail time
for failing to register, and had even signed a notification
form acknowledging that he was required to register
under state law. Vasquez would have known that his
failure to register as a sex offender was in violation of
state law. In short, we find beyond a reasonable doubt
that Vasquez knowingly failed to register or update a
registration, in violation of 18 U.S.C. § 2250(a).
8 No. 09-2411
B. Commerce Clause
Alternatively, Vasquez argues that Congress exceeded
its authority under the Commerce Clause in enacting
SORNA. First, he contends that 42 U.S.C. § 16913,
SORNA’s registration provision which requires every
sex offender to register regardless of whether the
offender traveled across state lines, is unconstitutional
because Congress does not have the power to impose
registration requirements on individual citizens con-
victed of purely intrastate offenses. Second, Vasquez
contends that 18 U.S.C. § 2250(a), SORNA’s criminal
penalty for failing to register, is unconstitutional
because the statute makes it a federal offense for an
individual sex offender who travels in interstate com-
merce to knowingly fail to register, even when the inter-
state travel has no connection to the failure to register.
Congress’ Commerce Clause power is derived from
Article I, § 8 of the United States Constitution, which
provides that Congress has the power “[t]o regulate
Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” U.S. Const. art. I, § 8,
cl. 3. Congressional power under the Commerce Clause
“is complete in itself, may be exercised to its utmost
extent, and acknowledges no limitations, other than are
prescribed in the constitution.” United States v. Schaffner,
258 F.3d 675, 678 (7th Cir. 2001) (citing Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 196 (1824)). We need only ask
whether Congress could have had a rational basis to
support the exercise of its commerce power and whether
the regulatory means chosen were reasonably adapted
No. 09-2411 9
to the end permitted by the Constitution. Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 258 (1964).
Nevertheless, a court will not inevitably rubber stamp
all congressional statutes as it is still the province of the
courts to determine whether Congress has exceeded
its enumerated powers. United States v. Black, 125 F.3d
454, 459 (7th Cir. 1997) (internal citations omitted).
There are three broad areas of activity that Congress
may regulate under its commerce power: (1) “the use of
the channels of interstate commerce”; (2) “the instrumen-
talities of interstate commerce, or persons or things in
interstate commerce, even though the threat may come
only from intrastate activities”; and (3) “those activities
having a substantial relation to interstate commerce.” See
United States v. Lopez, 514 U.S. 549, 558-59 (1995) (internal
citations omitted). In addition, Congress also has the
ability “[t]o make all Laws which shall be necessary and
proper” for the accomplishment of its Commerce Clause
power. U.S. Const. art. I, § 8, cl. 18.
While this Court has not previously addressed
Vasquez’s arguments, our sister circuits have held the
registration provisions and the penalty for failure to
register do not exceed Congress’ power under the Com-
merce Clause. United States v. Guzman, 591 F.3d 83, 90
(2d Cir. 2010); Whaley, 577 F.3d at 261; United States v.
Howell, 552 F.3d 709, 717 (8th Cir. 2009); United States v.
Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009). Specifically,
Ambert concluded that because § 2250 makes it a federal
crime to fail to register as required under § 16913, only
where the offender “travels in interstate or foreign com-
10 No. 09-2411
merce,” or was convicted of a federal sex offense, the
use of the channels and instrumentalities of interstate
commerce is necessarily part of the commission of the
targeted offense. 561 F.3d at 1211. Ambert reasoned that
“channels” are the interstate transportation routes
through which persons and goods move and that “instru-
mentalities” are the people and things themselves
moving in commerce. 561 F.3d at 1210-11. Further, in
concluding that § 16913 is an appropriate aid to the
accomplishment of tracking the interstate movement,
Howell stated:
A narrow discussion which only analyzes § 16913
under the three categories of Lopez casts doubt on the
constitutionality of § 16913 . . . because [o]n its face,
§ 16913 does not have a jurisdictional “hook” to fit
under the first two prongs of Lopez, and there is
little evidence in this record to show intrastate sex
offender registration substantially affects interstate
commerce. . . . However, an analysis of § 16913 under
the broad authority granted to Congress through
both the commerce clause and the enabling neces-
sary and proper clause reveals the statute is constitu-
tionality authorized.
552 F.3d at 715.
We find no reason to disagree with our sister circuits.
Here, the statutory aim of SORNA is to prevent a con-
victed sex offender from circumventing registration by
leaving the state in which he is registered. Section 2250
only criminalizes a knowing failure to register when the
sex offender is either required to register under federal
No. 09-2411 11
law or “travels in interstate or foreign commerce.” Thus,
a sequential reading of the statute “helps to assure a
nexus between a defendant’s interstate travel and his
failure to register as a sex offender.” Carr, 2010 WL
2160783, at *5.
Interstate travel inherently involves use of channels
of interstate commerce and is properly subject to congres-
sional regulation under the Commerce Clause. More-
over, Lopez explicitly acknowledges Congress’ power
to regulate persons traveling in interstate commerce.
514 U.S. at 558. Accordingly, section 2250 is a permissible
exercise of congressional power under the Commerce
Clause because the use of the channels and instrumen-
talities of interstate commerce is necessarily a part of the
commission of the targeted offense. Vasquez, who
had failed to register as a sex offender in Illinois, was
undeniably a “person . . . in interstate commerce” when
he moved from Illinois to California, and traveled to
California via the “channels of interstate commerce.”
Section 2250(a)’s failure to require a connection be-
tween the jurisdictional element of travel and the
criminal act of failing to register is not fatal, as the
Supreme Court determined the jurisdictional element of
“in or affecting commerce” was satisfied by proof that a
possessed firearm previously traveled at some time in
interstate commerce. Scarborough v. United States, 431
U.S. 563, 577 (1977). In so doing, the Court rejected the
defendant’s assertion that the interstate travel of the
firearm must be contemporaneous with the defendant’s
possession of it. Id. at 568-69. Similar to Scarborough,
12 No. 09-2411
“[t]he act of travel” is sufficient to bring a defendant’s
subsequent failure to register within Congress’ power to
regulate. Carr, 2010 WL 2160783, at *9.
We conclude a rational basis existed under the Com-
merce Clause for Congress to enact § 2250.
And § 16913 is a logical way to help ensure that the
government will more effectively be able to track sex
offenders when they do cross state lines. To the extent
that § 16913 regulates solely intrastate activity, the reg-
ulatory means chosen are “reasonably adapted” to
the attainment of a legitimate end under the commerce
power.
III. CONCLUSION
For the reasons stated above, we A FFIRM the ruling of
the district court.
M ANION, Circuit Judge, dissenting. In reading the court’s
opinion and the recent Supreme Court case Carr v. United
States, this fact cannot be lost: there are seemingly
two statutes at issue here. There is § 2250 as we inter-
preted it in United States v. Dixon, and as the court contin-
ues to interpret it, and then there is § 2250 as the Supreme
No. 09-2411 13
Court interpreted it in Carr. That being said, I have
two principal disagreements with the court’s opinion. The
first is that it gives Carr too limited a reading; the second
is that its interpretation of § 2250 renders the statute
constitutionally defective.
I.
After this case was argued, the Supreme Court handed
down Carr v. United States, ___ S.Ct. ___, 2010 WL 2160783
(June 1, 2010)). In it, the Court overturned our previous
interpretation of § 2250 in United States v. Dixon, 551 F.3d
578, 581 (7th Cir. 2008), rev. sub nom. Carr v. United States,
___ S.Ct. ___, 2010 WL 2160783 (June 1, 2010)). In that
case, the defendant was convicted in Alabama of rape.
In 2005, he moved to Indiana but didn’t register as a sex
offender, and he stayed under the radar until 2008,
when he was arrested in a bar fight. After his arrest, the
authorities learned he was a sex offender and wasn’t
registered in Indiana as required under SORNA, which
was enacted in 2006.
He was charged with and convicted of violating § 2250.
On appeal he challenged his conviction on various
grounds, including the fact that using his pre-SORNA
travel to convict him violated the ex post facto clause.
Looking to the statute’s text, we rejected his argument
and read § 2250 to apply to a defendant’s travel re-
gardless of when it took place: “the statute does not
require that the defendant’s travel postdate the Act, any
more than it requires that the conviction of the sex offense
14 No. 09-2411
that triggers the registration requirement postdate it.”
Id. at 582.
The Supreme Court disagreed. It noted that § 2250 has
to be read sequentially, meaning the defendant has to
have a duty to register under SORNA; he then has to
travel; and his violation has to “culminat[e] in a post-
SORNA failure to register.” Carr, supra at *5. Ultimately, it
avoided the ex post facto argument and held that § 2250
doesn’t apply to pre-enactment travel. Id. at 11. But it
didn’t stop there. The Court also gave some additional
commentary on § 2250 in the form of “considered dicta.”
United States v. Bloom, 149 F.3d 649, 653 (7th Cir. 1998).
In Dixon we noted that “[t]he evil at which [§ 2250] is
aimed is that convicted sex offenders registered in one
state might move to another state, fail to register there, and
thus leave the public unprotected.” Dixon, 551 F.3d at 582.
We also analogized § 2250 to the felon-in-possession
statute, noting it doesn’t matter when the firearm
passed state lines, the firearm’s travel is not part of the
harm; it is simply a jurisdictional hook. Id.
Again, the Supreme Court viewed § 2250 differently:
“the proper analogy is not, as the Seventh Circuit sug-
gested, between the travel of a sex offender and the
movement of a firearm; it is between the sex offender
who ‘travels’ and the convicted felon who ‘possesses.’ ”
Carr, supra at *9. It also disagreed with our position
about the defendant’s travel: the travel is not just “a
jurisdictional predicate for § 2250, but it is also, like the
act of possession, the very conduct at which Congress
took aim.” Id. In that way, it is not enough that a defendant
No. 09-2411 15
has traveled; he has to travel with a specific purpose
because Congress has “subjected such offenders to federal
criminal liability only when, after SORNA’s enactment,
they use the channels of interstate commerce in evading
a State’s reach.” Id. at *8. Of course, if criminal liability
only attaches when the travel is for such a purpose, then
the showing of purpose and intent that the government
must make is pivotal to the prosecution. The Supreme
Court rested this reading of § 2250 on both SORNA’s
purpose and its structure: “Taking account of SORNA’s
overall structure, we have little reason to doubt that
Congress intended §2250 to do exactly what it says: to
subject to federal prosecution sex offenders who elude
SORNA’s registration requirements by traveling in inter-
state commerce.” Id. at *10.
To be clear, no circuit court applying § 2250 has
required the prosecution to prove the purpose of the
defendant’s interstate travel. This is probably because
as it is written, the statute does not have any language
to that effect. But the Supreme Court and the dissent saw
eye-to-eye on this point: “I agree with the Court that
there is a good argument that § 2250(a) should not be
read to apply to such a case, where there is little if any
connection between the offender’s prior interstate move-
ment and his subsequent failure to register.” Id. at *16
(Alito, J., dissenting). It is clear that as far as the Supreme
Court is concerned, under § 2250 the defendant’s travel
is not just a jurisdictional hook but part of the behavior
Congress is regulating. And as an inferior court, we
have to abide by it.
16 No. 09-2411
With that in mind, I have two points of disagreement
with the court’s application of Carr. First, even if Carr is
limited to its basic holding, the facts we have here do not
satisfy the statute. Second, if we give due deference to
Carr’s “considered dicta,” the facts we have here do not
satisfy the statute because there is nothing in the record
about why he traveled.
A.
The court and I agree that under Carr § 2250 has to be
read sequentially. We just disagree on what that means.
I think Carr’s sequential requirement means that the
defendant has to have a duty to register under
SORNA; he then has to travel; and his violation has to
“culminat[e] in a post-SORNA failure to register.” Carr,
supra at *5. Carr’s sequential reading is not just a
checklist for courts. It has a purpose: it assures that
there is “a nexus between a defendant’s interstate
travel and his failure to register as a sex offender.” Id. at *6.
Thus, “[o]nce a person becomes subject to SORNA’s
registration requirements, . . . that person can be con-
victed under §2250 if he thereafter travels and then fails to
register.” Id. at 5 (emphasis added).
That is not what happened here. From the stipulated
record, Vasquez’s only duty to register as a sex offender
arose in Illinois, which he failed to do. He didn’t
have a duty to register in California—under the sparse
stipulated facts, we don’t know how long he was there
or that he had changed his residence or any status that
No. 09-2411 17
would compel him to register in California. 42 U.S.C.
§ 16913(c). So, his interstate travel did not culminate in
his failure to register, nor was it in any way connected
to his failure to register. Thus, it was not part of the
harm that Congress was addressing, but a mere juris-
dictional hook for making this a federal crime.
B.
I also disagree with the court’s treatment of Carr. From
the discussion above, it should be clear that the
Supreme Court views § 2250 as requiring that some
purpose to avoid, evade or elude registering attach to
the defendant’s travel; it is not enough that the
defendant travels across state lines to run an errand or
visit a friend. Here there is nothing in the record about
why Vasquez traveled; all we know is that he did. Thus,
without any proof concerning why Vasquez traveled
to California, his conviction should be overturned.
II
This leads to my second principal disagreement with
the court: interpreting the statute the way we did in
Dixon and the way the court does here, without § 2250
regulating the defendant’s travel, it is unconstitutional.
Granted, that is a significant statement, in light of the
fact that our sister circuits have applied the same
analysis as the court and found that § 2250 is a legit-
imate exercise of the Commerce Clause. But against the
backdrop of the traditional boundaries that have marked
18 No. 09-2411
Congress’s power under the Commerce Clause and our
interpretation of Lopez, it is clear that § 2250 is not a
legitimate exercise of congressional power. And in an
effort to uphold it, the court endorses a significant ex-
pansion of congressional power.
The plain language of § 2250, without applying Carr’s
considered dicta, establishes that the statute only
requires that a defendant have traveled interstate at
some time. And limiting Carr only to its narrow
holding, the time for the travel merely has to be after
the statute was enacted. Under either application, the
defendant’s travel is not connected to him evading his
duty to register under SORNA, and it is not what
Congress is regulating.
While the distinction between a person who travels to
evade registering and a person who travels and fails to
register is semantically slight, it is constitutionally sig-
nificant. To appreciate the significance of this distinction
and understand the error in the court’s Commerce
Clause analysis, it is necessary to sketch the traditional
limits of Congress’s commerce power. For the past
fifteen years, courts have based much of their under-
standing of the commerce power on the three categories
articulated in United States v. Lopez, 514 U.S. 549, 558-59
(1995):
First, Congress may regulate the use of the channels
of interstate commerce. See, e.g., Darby, 312 U.S. at 114;
Heart of Atlanta Motel, supra, at 256 (“ ‘[T]he authority
of Congress to keep the channels of interstate com-
merce free from immoral and injurious uses has
No. 09-2411 19
been frequently sustained, and is no longer open to
question.’ ” (quoting Caminetti v. United States, 242
U.S. 470, 491 (1917))). Second, Congress is empowered
to regulate and protect the instrumentalities of inter-
state commerce, or persons or things in interstate
commerce, even though the threat may come only
from intrastate activities. See, e.g., Shreveport Rate Cases,
234 U.S. 342 (1914); Southern R. Co. v. United States,
222 U.S. 20 (1911) (upholding amendments to Safety
Appliance Act as applied to vehicles used in intra-
state commerce); Perez, supra, at 150 (“[F]or example,
the destruction of an aircraft (18 U.S.C. § 32), or . . .
thefts from interstate shipments (18 U.S.C. § 659)”).
We have interpreted each category with reference to the
citations used. United States v. Wilson, 73 F.3d 675, 686-87
(7th Cir. 1995).
A.
In support of the first Lopez category that “Congress
may regulate the use of the channels of interstate com-
merce,” Lopez cites three cases: United States v. Darby, 312
U.S. 100, 113-15 (1941); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241, 256 (1964); United States v. Caminetti,
242 U.S. 470, 491 (1917). The pertinent discussion in
each case cited focuses on Congress’s ability to regulate
the misuse of the channels of interstate commerce. In
Darby, it was the power to ban goods produced without
minimum labor standards from traveling on the channels
of interstate commerce. 312 U.S. at 113-15. In Heart of
20 No. 09-2411
Atlanta, the cited portion concerned Congress’s power
to keep the channels of interstate commerce “free from
immoral or injurious uses.” 379 U.S. at 256 (quoting
Caminetti, 242 U.S. at 491). And in Caminetti, the Court
upheld the Mann Act, which “seeks to reach and punish
the movement in interstate commerce of women and girls
with a view to the accomplishment of the unlawful purposes
prohibited.” 242 U.S. at 491 (emphasis added). These
cites illustrate Congress’s traditional power to keep the
channels of interstate commerce free from misuse. In
effect, when Congress does this, it is “exclud[ing] from
commerce articles whose use in the states for which
they are destined it may conceive to be injurious to the
public health, morals or welfare.” Darby, 312 U.S. at 114.
Consistent with this understanding of Congress’s
power, we have noted that under the first Lopez category,
it can proscribe shipments of stolen goods, kidnaped
persons, and prostitutes from traveling on the channels.
Wilson, 73 F.3d at 680 n.5. And we have upheld a child
pornography statute because “Congress ha[d] set out
to prohibit the interstate movement of a commodity
through the channels of interstate commerce.” United
States v. Schaffner, 258 F.3d 675, 680-81 (7th Cir. 2001)
(citing Lopez, 514 U.S. at 559); see also United States v.
Kenney, 91 F.3d 884, 889 (7th Cir. 1996). These regula-
tions focus on the movement across state lines with an
illicit purpose. United States v. Hoke, 227 U.S. 308, 322
(1913). That is, the crime is complete once the
offending person or good has moved interstate.
Caminetti, 242 U.S. at 491.
No. 09-2411 21
It is not, as the court interprets Lopez, a matter of the
defendant having traveled for some innocent purpose
and then later committing the crime. See United States v.
Mortensen, 322 U.S. 369, 374 (1944) (“To constitute a
violation of the Act, it is essential that the interstate
transportation have for its object or be the means of
effecting or facilitating the proscribed activities.”). A
person’s mere travel across state lines does not give
Congress authority to later regulate all of his future
conduct—or in this case, make his previous failure to
register in Illinois a federal crime. The Tenth Circuit
made this same point in United States v. Patton, where it
observed that the first Lopez “category is confined to
statutes that regulate interstate transportation itself,
not manufacture before shipment or use after ship-
ment.” 451 F.3d 615, 621 (10th Cir. 2006) (McConnell, J.).
In contrast to the statutes that properly regulate a per-
son’s travel across the channels of interstate com-
merce, under § 2250 the court separates the defendant’s
travel from the crime of failing to register. And that
renders it constitutionally problematic. The Supreme
Court may have tacitly recognized this in Carr when
it noted that under § 2250 Congress “subjected such
offenders to federal criminal liability only when, after
SORNA’s enactment, they use the channels of interstate
commerce in evading a State’s reach.” Carr, supra at *8. Under
Carr the focus is, as it should be, on the sex offender’s
misuse of the channels of interstate commerce: using
them to evade registration. And unless we interpret the
statute as Carr did, § 2250 is not a permissible use of
22 No. 09-2411
congressional power over the channels of interstate
commerce.1
B.
The opinion goes beyond the first Lopez category and
also upholds § 2250 under the second category, noting
that Vasquez “was undeniably ‘a person . . . in
interstate commerce’ when he moved from Illinois to
California, and traveled to California via the ‘channels of
interstate commerce.’ ” Op. at 11. Under that category,
“Congress is empowered to regulate and protect the
instrumentalities of interstate commerce, or persons or
things in interstate commerce, even though the threat
may come only from intrastate activities.” Lopez, 514 U.S.
at 558. The court interprets this category to mean
that because a person travels across state lines, he is “a
person in interstate commerce” and Congress can
regulate him thereafter.
But that literal and expansive interpretation of the
second Lopez category is contrary to our circuit’s prece-
dent. There are two parts to that category: “instrumentali-
ties of interstate commerce” and “persons or things in
interstate commerce, even though the threat may come
1
In effect, the Supreme Court’s opinion in Carr verifies the
defect I’ve identified in § 2250 by incorporating this additional
requirement into the statute and placing the statute’s focus
beyond its text and onto the defendant’s travel on the
channels of interstate commerce.
No. 09-2411 23
only from intrastate activities.” The first part is self-
explanatory.2 It is the second part concerning “persons or
things” that is problematic for courts.
In the midst of this rather arcane area of the law, it is
important to remember that Lopez doesn’t stand for a
radical enlargement of Congress’s power under the
first two categories, but rather an enforcement of limits
under the third—the activities that substantially affect
interstate commerce. And its three categories should be
interpreted as a convenient rhetorical formulation for
summarizing Congress’s traditional power over com-
merce. See United States v. Rybar, 103 F.3d 273, 286-89
(3d Cir. 1996) (Alito, J., dissenting).
In defining that clause previously, we noted that the
“inclusion of the language ‘persons and things’ was
likely based on precedent—not happenstance.” Wilson, 73
F.3d at 687. And the key to understanding that language
is the Supreme Court’s citation to Perez v. United States;
the pertinent language in Perez is where the Court
notes: “The commerce clause reaches . . . . protection of the
2
In support of the second category, Lopez cited three cases,
one of which, Perez, cited two statutes. The first two cases
concerned railroads, which are actual instrumentalities of
interstate commerce. Houston, E. & W. Tex. Ry. v. United
States (Shreveport Rate Cases), 234 U.S. 342 (1914); Southern Ry.
Co. v. United States, 222 U.S. 20, 32 (1911). Specifically, they
concerned Congress’s ability to set rates and standards for
railroads. Shreveport Rate Cases, 234 U.S. at 351-53; see also
Southern Ry. Co., 222 U.S. at 26.
24 No. 09-2411
instrumentalities of interstate commerce, as for example,
the destruction of an aircraft (18 U.S.C. § 32), or persons
or things in commerce, as, for example, thefts from inter-
state shipments (18 U.S.C. § 659).” 402 U.S. 146, 150
(1971). Lopez cites to these same statutes. 514 U.S. at 558
(citing Perez, 402 U.S. at 150 (citing 18 U.S.C. §§ 32, 659)).
Essentially, what Lopez did was define this power by
looking to the explication given in Perez. Understood in
this way, the phrase “persons or things in interstate
commerce” clearly refers to and must be defined by the
laws that Congress can pass to protect the persons or
things that the instrumentalities are moving. Wilson, 73
F.3d at 687.
With that understanding, we have expressed reserva-
tion that videotape cassettes that have moved across
state lines are “things in interstate commerce.” United
States v. Angle, 234 F.3d 326, 337 n.12 (7th Cir. 2000).
We have also avoided using the second category to
uphold legislation that criminalized interfering with an
abortion facility simply because the pregnant women
have traveled there. In doing so, we noted that “[h]olding
that the Access Act qualifies as a regulation of an instru-
mentality of interstate commerce based on a literal
reading of one sentence in Lopez . . . is unnecessary
without further guidance from the Supreme Court.”
Wilson, 73 F.3d at 687 n.12. This makes sense because the
second Lopez category involves “things actually being
moved in interstate commerce, not all people and things
that have ever moved across state lines.” Patton, 451
F.3d at 622. Thus, it is wholly inconsistent with our prece-
dent to uphold the constitutionality of § 2250 as
No. 09-2411 25
regulating sex-offenders as a “person . . . in interstate
commerce.”
C.
Unlike the other circuits to address this question, the
court also cites Scarborough v. United States, 431 U.S. 563,
577 (1977) and the “minimal nexus” reasoning as a
basis to uphold § 2250 under the Commerce Clause.3
Notably, none of the other circuits has directly relied on
Scarborough and its minimal nexus test to uphold § 2250
as it applies to persons who have traveled interstate. In
doing so, the court is recognizing a power Congress
never had, and doing so without giving deference to
the reasoning in Carr.
Scarborough created the legal fiction that once a gun
has crossed state lines it is forever “in or affecting” com-
merce and Congress can prohibit felons from possessing
them—this is described as “a minimal nexus.” 431 U.S.
at 575. We have also used the logic of a “minimal nexus”
or “limited nexus” to uphold the constitutionality of the
car-jacking statute. United States v. Taylor, 226 F.3d 593, 600
(7th Cir. 2000). Although this test seems to work when
applied to things, such as guns and cars, there are four
problems with extending the minimal or limited nexus
rationale to persons.
3
The opinion does not suggest that § 2250 can be upheld under
the third Lopez category, which only comes into play with
economic activity that substantially affects interstate com-
merce. That is not at issue here.
26 No. 09-2411
First, while Scarborough is still good law as far as its
reasoning goes in felon-in-possession cases, it has been
implicitly criticized by the Supreme Court in the com-
mercial arson context in Jones v. United States, 529 U.S. 848,
857 (2000). We have recognized that criticism and
refused to extend the minimal nexus test to materials.
United States v. Craft, 484 F.3d 922, 927 (7th Cir. 2007). And
other courts and scholars have noted the problems
inherent in Scarborough’s reasoning and extending it to
other circumstances. United States v. Bishop, 66 F.3d
569, 593-600 & n.13 (3d Cir. 1995) (Becker, J., con-
curring in part and dissenting in part); see also Dean A.
Strang, Felons, Guns, and the Limits of Federal Power, 39 J.
Marshall L. Rev. 385 (2006); United States v. Chesney, 86
F.3d 564, 577-82 (6th Cir. 1996) (Batchelder, J., concurring).
Second, there is a logical distinction between guns and
persons that can’t be lost in applying Scarborough here. The
cases endorsing the “minimal nexus” test concerned
things—commodities that were included in the actual
makeup of commerce. But persons are different: we
are not inherently commercial; we cannot be bought or
sold; and our participation in commerce is limited to
our decision to engage in it. Consistent with this distinc-
tion, in the felon-in-possession context it is the gun that
has crossed state lines; it is not enough that the felon
has crossed state lines and subsequently possesses a
gun that has remained intrastate. See United States v.
Travisano, 724 F.2d 341, 347-48 (2d Cir. 1983).
Third, the Supreme Court in Carr looked at Scarborough
and the minimal nexus rubric and noted that § 2250 is
No. 09-2411 27
distinguishable: “Understanding the act of travel as an
aspect of the harm Congress sought to punish serves to
distinguish §2250 from the felon-in-possession statute to
which the Seventh Circuit analogized.” Carr, supra at *9.
Indeed, the Court went on to note that analogizing this to
Scarborough is inappropriate: “In this case, the proper
analogy is not, as the Seventh Circuit suggested, between
the travel of a sex offender and the movement of a
firearm; it is between the sex offender who ‘travels’ and
the convicted felon who ‘possesses.’ ” Id.
Fourth, expanding Scarborough will obliterate the limits
between what is local and what is national. In striking
down the Violence Against Women Act in United States
v. Morrison, the Supreme Court observed that if the
“aggregated impact” rationale under the third Lopez
category were adopted, it would allow Congress to
“regulate murder or any other type of violence” and even
reach issues including “family law and other areas of
traditional state regulation.” 529 U.S. 598, 616 (2000). While
Congress could not regulate those areas under its
broadest power in Morrison, it could under the court’s
rationale here. By applying the minimal nexus to a
person’s travel, Congress could take over the states’
ability to punish domestic crimes.
For instance, under 18 U.S.C. § 2262 (interstate viola-
tion of a protective order), the government would no
longer have to prove the defendant traveled in interstate
commerce with the intent to violate a protective order. It
would only have to show that the defendant had at some
time traveled across state lines, regardless of his purpose,
and that at some time later he violated a protective
28 No. 09-2411
order. If this were true, Congress could effectively take
over the monitoring and control of local, domestic crime,
by making an element of the crime that the person has
traveled interstate at some time. That, however, stands in
complete contradiction to Morrsion. As the Supreme
Court aptly noted: “The regulation and punishment
of intrastate violence that is not directed at the instrumen-
talities, channels, or goods involved in interstate com-
merce has always been the province of the States.” 529
U.S. at 618-19 (citation omitted).
Thus, I believe that consistent with a government of
limited powers and in light of the Supreme Court’s prece-
dent in this area, we should not extend Scarborough’s
“minimal nexus” beyond firearms to reach persons in
an effort to find that this statute comes under the Com-
merce Clause.
D.
When § 2250 is applied in the way it was in Dixon and by
the court here, it emphasizes the need to apply Carr’s
considered dicta to the statute and require a showing
that the defendant’s travel was with an illicit intent to
evade, elude, or avoid registering. The alternative is
an unconstitutional statute.
III.
This leads to my final point of disagreement: this is a
specific-intent crime. That is true applying the statute
either as we did in Dixon or as the Supreme Court did in
No. 09-2411 29
Carr. If we follow Carr’s reasoning and the purpose of the
travel is vital to the statute that naturally forces the gov-
ernment to prove that the defendant had an elevated
intent. It is not enough to travel and negligently or
through ignorance fail to register.
To address the court’s position on this point, inter-
preting the statute apart from Carr this is a specific-intent
crime. The court looks to United States v. Cox, 577 F.3d
833, 836 (7th Cir. 2009), and its reasoning in support of
interpreting § 2250 as a general-intent crime. In Cox the
statute at issue proscribed conduct that was already
unlawful: transporting someone across state lines to
become a prostitute. But it added the element that the
person be under 18. We held that under the statute
the government doesn’t have to prove that the defendant
knew he was transporting a minor, which makes sense,
given the strict liability that normally attaches to
sexual acts with minors.
But the statute at issue here does not proscribe
inherently unlawful conduct; rather, it requires that the
defendant must register. He has an affirmative, admin-
istrative duty—one that he must perform or be impris-
oned. Thus, it is reasonable that he would have to know
about the duty before he is held accountable. Nothing
suggests that Congress intended to hold someone re-
sponsible for knowingly failing to do something without
any evidence that he knew what he was supposed to do.
Moreover, the court’s position that we can transfer
knowledge between a state-imposed duty and a federal
duty is difficult to reconcile with the basic concepts of
justice and our precedent. See United States v. Pulungan,
30 No. 09-2411
569 F.3d 326, 331 (7th Cir. 2009). Nothing in the statute
defines the § 2250 obligation with reference to the Illinois
obligation. They are distinct. And there is no reason to
think that Vasquez’s known legal duty under Illinois law
should transfer to his federal obligation. In short, just
because Vasquez knew about his state duty to register
we cannot uphold his conviction because we assume
he was aware of his federal duty to register.
IV.
In sum, there are two statutes here: § 2250 as it is
written and as we have interpreted it pre-Carr, and as
the Supreme Court has interpreted it in Carr. Taking
§ 2250 as it is written, the statute is unconstitutional
because it does not require interstate travel with the
intent to avoid or evade registration under SORNA. Under
the Supreme Court’s reasoning in Carr, however, the
statute passes muster constitutionally because it reg-
ulates the defendant’s travel, by attaching criminal lia-
bility to sex offenders who travel interstate to evade
registration. And applying the reasoning in Carr, we
would have to overturn Vasquez’s conviction because
there is no proof of why he traveled. I also believe that
both the grammatical structure of § 2250 and its context
counsel reading this as a specific-intent crime. For these
reasons, I must respectfully dissent.
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