In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2478
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D ANIEL R APPE,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 07 CR 530—Blanche M. Manning, Judge.
A RGUED F EBRUARY 25, 2010—D ECIDED JULY 22, 2010
Before C UDAHY, E VANS, and S YKES, Circuit Judges.
S YKES, Circuit Judge. Following a week-long jury trial,
Daniel Rappe was found guilty of four crimes: (1) con-
spiring to commit an offense against the United States
(18 U.S.C. § 371); (2) obstructing justice (18 U.S.C.
§ 1519); (3) destroying property to prevent its seizure
(18 U.S.C. § 2232); and (4) failing to register as a sex
offender (18 U.S.C. § 2250). On appeal Rappe challenges
only his conviction for failing to register as a sex offender
2 No. 09-2478
pursuant to the Sex Offender Registration and Notifica-
tion Act (“SORNA”).
Section 2250(a) covers, among others, any person who
(1) “is required to register under [SORNA],” (2) “travels
in interstate or foreign commerce,” and (3) “knowingly
fails to register or update a registration.” Rappe argued
on appeal that he did not have a “reasonable time” to
register after SORNA became effective against him and
that prosecuting him for failing to do so therefore vio-
lated the Ex Post Facto Clause, as explained in United
States v. Dixon, 551 F.3d 578 (7th Cir. 2008). Following
oral argument, the Supreme Court decided Carr v. United
States, 130 S. Ct. 2229 (2010), a case that was part of the
consolidated appeal we considered in Dixon. While Carr
did not reach Dixon’s Ex Post Facto Clause holding, the
Court addressed a separate question at issue in Dixon:
whether § 2250 applies if the sex offender’s interstate
travel predated SORNA’s enactment. The Court held in
Carr that § 2250 does not apply to sex offenders whose
interstate travel occurred prior to SORNA’s effective
date. Id. at 2235-36.
The Court’s decision in Carr has a direct, dispositive
impact on this appeal. SORNA was made applicable to
Rappe on February 28, 2007, through 28 C.F.R. § 72.3, an
interim regulation issued by the Attorney General.
Rappe’s most recent interstate trip occurred one day
earlier, on February 27. Accordingly, as the government
now concedes, Carr requires us to vacate Rappe’s con-
viction under § 2250 and remand for resentencing.
No. 09-2478 3
I. Background
Daniel Rappe, a former deputy sheriff in DuPage
County, Illinois, was convicted of criminal sexual
assault in 1986 and aggravated criminal sexual abuse
in 1990. He was released from custody in May 1992. In
1996 Illinois’ sex-offender registration law went into
effect. This law required anyone convicted of a sex offense
during the preceding ten years to register with local
law enforcement and re-register each year thereafter
through the end of the ten-year period. A subsequent
amendment to the law provided that anyone who failed
to comply with the registration requirements would be
required to register annually for another ten years.
Rappe first registered in October 1997, but he neglected
to renew his registration in 1998. At this point he
became a “non-compliant” sex offender, and a warrant
was issued for his arrest. Rappe was arrested in Feb-
ruary 1999 and re-registered six months later. On Feb-
ruary 14, 2000, Rappe pleaded guilty to a misdemeanor
charge of attempted unlawful failure to change address
as a sex offender. As a result, Rappe’s mandatory reg-
istration requirement was extended another ten years
until February 14, 2010.
Four days after his guilty plea, Rappe sent a letter to
his local police department informing the authorities
that he was moving to Wisconsin. In fact, Rappe never
moved to Wisconsin; instead, he moved with his girl-
friend and her children to another municipality within
DuPage County. Rappe did not register anywhere be-
tween 2000 and 2007, and evidence introduced at trial
4 No. 09-2478
revealed that he was actively trying to conceal the fact
that he continued to reside in Illinois. In particular,
Rappe obtained a driver’s license and a post-office box
in Indiana by fraudulently claiming to be a resident of
Hammond. Although he never resided in Indiana, the
government introduced evidence that Rappe traveled to
that state in 2001, 2006, and 2007. Significantly, the evi-
dence established that Rappe’s last date of travel to
Indiana was February 27, 2007.
The police finally caught up with Rappe at his home
on March 16, 2007. He was arrested for failing to register,
and while in the DuPage County Jail, had conversations
with his girlfriend in which he told her to erase the
information on the hard drives of the computers at
their home in case federal law-enforcement agents
arrived with a search warrant. When local police inter-
cepted this information, recorded on the jail’s phone
system, they alerted federal law-enforcement officials,
who then obtained a search warrant for the couple’s
apartment. When a team of federal agents arrived and
searched the apartment on March 19, 2007, the hard
drives had been wiped clean, apparently with the aid of
a computer program designed for this purpose. That
same day—March 19—Rappe renewed his sex-offender
registration in Illinois.
A federal grand jury subsequently returned an indict-
ment against Rappe on the four counts mentioned above,
and a jury later found him guilty on all charges. The court
imposed sentences of 60 months’ imprisonment on the
counts of conspiracy and destruction of property to pre-
vent seizure, and 120 months each on the obstruction-of-
No. 09-2478 5
justice and SORNA counts. The sentences were ordered
to be served concurrently.
II. Discussion
The validity of Rappe’s SORNA conviction is the only
issue in this appeal. The Supreme Court held in Carr that
“[o]nce a person becomes subject to SORNA’s registration
requirements, which can occur only after the statute’s
effective date, that person can be convicted under § 2250
if he thereafter travels and then fails to register.” 130
S. Ct. at 2236. Thus, in order to secure a conviction
under § 2250, the government must establish that the
sex offender engaged in interstate travel at some point
after he became subject to SORNA’s registration require-
ments. The threshold question for us is whether Rappe
traveled in interstate commerce (and subsequently
failed to register) after SORNA become applicable to him.
SORNA was enacted in July 2006 and applied to all
subsequently convicted sex offenders. But what of per-
sons, such as Rappe, who were convicted of sex offenses
prior to July 2006? Congress provided that the Attor-
ney General “shall have the authority to specify the
applicability of the requirements of [SORNA]” to such
individuals. 42 U.S.C. § 16913(d). On February 28, 2007, the
Attorney General issued an interim regulation making
SORNA applicable to persons who were convicted of sex
offenses before the Act was passed. 28 C.F.R. § 72.3; see
Dixon, 551 F.3d at 582, rev’d on other grounds, Carr, 130
S. Ct. 2229. Other circuits have held that persons with
pre-SORNA sex-offense convictions became subject to the
6 No. 09-2478
Act’s registration requirements upon the statute’s enact-
ment in July 2006, and that the Attorney General’s reg-
ulation merely confirmed this understanding. See, e.g.,
United States v. Hinckley, 550 F.3d 926, 929-35 (10th Cir.
2008); United States v. May, 535 F.3d 912, 915-19 (8th Cir.
2008). Our circuit, however, takes the view that persons
with pre-SORNA sex offenses did not become subject to
the statute’s requirements until the Attorney General
issued the interim regulation.1 Dixon, 551 F.3d at 582.
Accordingly, Rappe did not become subject to SORNA’s
registration requirements until February 28, 2007, the
date of the Attorney General’s regulation.
Under Carr the sex offender’s interstate travel must
occur after he became subject to SORNA. 130 S. Ct. at 2236.
Rappe’s last instance of interstate travel occurred on
February 27, 2007, one day before he became subject to
SORNA’s requirements. Accordingly, Carr requires that
we vacate Rappe’s SORNA conviction. Although Rappe’s
sentences are concurrent, we cannot know whether the
judge would have sentenced him differently in the
absence of the SORNA conviction. United States v. Shah,
559 F.3d 643, 644 (7th Cir. 2009). The government agrees
that Rappe is entitled to resentencing.
Rappe’s conviction under § 2250 is V ACATED , and the
case is R EMANDED for resentencing.
1
The Supreme Court acknowledged this circuit split in Carr
but specifically declined to resolve it. 130 S. Ct. at 2234 n.2.
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