Carr v. United States

Decision Date01 June 2010
Docket NumberNo. 08–1301.,08–1301.
Citation130 S.Ct. 2229,560 U.S. 438,176 L.Ed.2d 1152
PartiesThomas CARR, Petitioner, v. UNITED STATES.
CourtU.S. Supreme Court

Charles A. Rothfeld

, Washington, DC, for petitioner.

Curtis E. Gannon

, Washington, DC, for respondent.

Dan M. Kahan

, Thomas W. Merrill, Scott L. Shuchart, New Haven, CT, Stanley L. Campbell, Swanson & Campbell, Fort Wayne, IN, Charles A. Rothfeld, Counsel of Record, Andrew J. Pincus, Mayer Brown LLP, Washington, DC, for petitioner.

Elena Kagan, Solicitor General, Counsel of Record, Lanny A. Breuer

, Asst. Atty. Gen., Michael R. Dreeben, Deputy Solicitor Gen., Curtis E. Gannon, Asst. to the Solicitor Gen., Richard A. Friedman, Dept. of Justice, Washington, D.C., for U.S.Opinion


delivered the opinion of the Court.

Since 1994, federal law has required States, as a condition for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification. In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 2006 enacted the Sex Offender Registration and Notification Act (SORNA or Act) as part of the Adam Walsh Child Protection and Safety Act, Pub.L. 109–248

, Tit. I, 120 Stat. 590. Among its provisions, the Act established a federal criminal offense covering, inter alia, 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.” 18 U.S.C. § 2250(a)

. At issue in this case is whether § 2250

applies to sex offenders whose interstate travel occurred prior to SORNA's effective date and, if so, whether the statute runs afoul of the Constitution's prohibition on ex post facto laws. See Art. I, § 9, cl. 3. Liability under § 2250, we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question.


In May 2004, petitioner Thomas Carr pleaded guilty in Alabama state court to first-degree sexual abuse. He was sentenced to 15 years' imprisonment, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation on July 3, 2004, and he registered as a sex offender as required by Alabama law.

In late 2004 or early 2005, prior to SORNA's enactment, Carr relocated from Alabama to Indiana. He did not comply with Indiana's sex-offender registration requirements. In July 2007, Carr came to the attention of law enforcement in Fort Wayne, Indiana, following his involvement in a fight.

On August 22, 2007, federal prosecutors filed an indictment in the United States District Court for the Northern District of Indiana charging Carr with failing to register in violation of § 2250

. Carr moved to dismiss the indictment, asserting that because he traveled to Indiana prior to SORNA's effective date, it would violate the Ex Post Facto Clause to prosecute him under § 2250. The District Court denied Carr's motion, and Carr entered a conditional guilty plea, preserving his right to appeal. He received a 30–month prison sentence.

The United States Court of Appeals for the Seventh Circuit consolidated Carr's appeal with that of a similarly situated defendant, who, in addition to raising an ex post facto claim, asserted that § 2250

, by its terms, does not apply to persons whose interstate travel preceded SORNA's enactment. Beginning with the statutory argument, the Court of Appeals held that § 2250 “does not require that the defendant's travel postdate the Act.” United States v. Dixon, 551 F.3d 578, 582 (2008). The court relied principally on its understanding of SORNA's underlying purpose:

“The evil at which [the Act] 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. The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved afterward.” Ibid. (citation omitted).

The court drew an analogy to 18 U.S.C. § 922(g)

, which prohibits convicted felons from “possess[ing] in or affecting commerc[e] any firearm or ammunition.” “The danger posed by such a felon is unaffected by when the gun crossed state lines ..., and so it need not have crossed after the statute was passed.” 551 F.3d, at 582 (citing Scarborough v. United States, 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977)). According to the court, § 2250(a), like § 922(g), uses movement in interstate commerce as a jurisdictional element “to establish a constitutional predicate for the statute ... rather than to create a temporal requirement.” 551 F.3d, at 583.

Reading § 2250

to encompass pre-SORNA travel, the Seventh Circuit recognized, created a conflict with the Tenth Circuit's decision in United States v. Husted, 545 F.3d 1240 (2008). In holding that § 2250's coverage “is limited to those individuals who travel in interstate commerce after the Act's effective date,” the Tenth Circuit emphasized Congress's use of the present tense form of the verb ‘to travel’ ..., which according to ordinary English grammar, does not refer to travel that has already occurred.” Id., at 1243–1244.

Rejecting this analysis, the Seventh Circuit characterized Congress' choice of tenses as ‘not very revealing.’ 551 F.3d, at 583

(quoting Scarborough, 431 U.S., at 571, 97 S.Ct. 1963).

Having dispensed with the statutory question, the Seventh Circuit considered the claim of Carr and his co-appellant that predicating a § 2250

prosecution on pre-SORNA travel violates the Ex Post Facto Clause. Reliance on a defendant's pre-SORNA travel, the court concluded, poses no ex post facto problem so long as the defendant had “reasonable time” to register after SORNA took effect but failed to do so. 551 F.3d, at 585. Noting that Carr remained unregistered five months after SORNA became applicable to him, the Seventh Circuit affirmed his conviction. Id., at 586–587. The court reversed the conviction of Carr's co-appellant, finding that he had not been given a sufficient grace period to register.

In view of the division among the Circuits as to the meaning of § 2250

's “travel” requirement,1 we granted certiorari, 557 U.S. ––––, 130 S.Ct. 47, 174 L.Ed.2d 631 (2009), to decide the statute's applicability to pre-SORNA travel and, if necessary, to consider the statute's compliance with the Ex Post Facto Clause.2


As relevant here, § 2250


(a) In General.—Whoever—
(1) is required to register under the Sex Offender Registration and Notification Act;(2)(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or
(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and
(3) knowingly fails to register or update a registration as required by the Sex Offender Registration and Notification Act;
“shall be fined under this title or imprisoned not more than 10 years, or both.”

For a defendant to violate this provision, Carr and the Government agree, the statute's three elements must “be satisfied in sequence, culminating in a post-SORNA failure to register.” Brief for United States 13; see also Reply Brief for Petitioner 4, 7, n. 6. A sequential reading, the parties recognize, helps to ensure a nexus between a defendant's interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under § 2250

even if they had not left the State after being convicted—an illogical result given the absence of any obvious federal interest in punishing such state offenders.3

While both parties accept that the elements of § 2250

should be read sequentially, they disagree on the event that sets the sequence in motion. In the Government's view, the statute is triggered by a sex-offense conviction, which must be followed by interstate travel, and then a failure to register under SORNA. Only the last of these events, the Government maintains, must occur after SORNA took effect; the predicate conviction and the travel may both have predated the statute's enactment. Carr, in contrast, asserts that the statutory sequence begins when a person becomes subject to SORNA's registration requirements. The person must then travel in interstate commerce and thereafter fail to register. All of these events, Carr avers, necessarily postdate SORNA's enactment because a sex offender could not have been required to register under SORNA until SORNA became the law.

Carr's interpretation better accords with the statutory text. By its terms, the first element of § 2250(a)

can only be satisfied when a person “is required to register under the Sex Offender Registration and Notification Act.”

§ 2250(a)(1)

(emphasis added). In an attempt to reconcile its preferred construction with the words of the statute, the Government insists that this language is merely “a shorthand way of identifying those persons who have a [sex-offense] conviction in the classes identified by SORNA.” Brief for United States 19–20. To reach this conclusion, the Government observes that another provision of SORNA, 42 U.S.C. § 16913(a), states that the Act's registration requirements apply to “sex offender[s].” A “sex offender” is elsewhere defined as “an individual who was convicted of a sex offense.” § 16911(1). Thus, as the Government would have it, Congress used 12 words and two implied cross-references to establish that the first element of § 2250(a) is that a person has been convicted of a sex offense. Such contortions can scarcely be called “shorthand.” It is far more sensible to conclude that Congress meant the...

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