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United States v. Walker

United States Court of Appeals, Seventh Circuit

July 23, 2019

United States of America, Plaintiff-Appellee,
v.
Richard Walker, Defendant-Appellant.

          Argued May 29, 2019

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:17-cr-184 - Pamela Pepper, Judge.

          Before Ripple, Rovner, and Barrett, Circuit Judges.

          Barrett, Circuit Judge.

         Richard Walker was convicted for failing to register as a sex offender between 2016 and 2017, as required by the Sex Offender Registration and Notification Act. He argues that his conviction must be vacated because he did not have to register at that time. We agree. Because his obligation to register-triggered by a 1998 Colorado conviction-expired after fifteen years, we reverse the district court and vacate Walker's conviction and sentence.

         I.

         In 1997, Richard Walker sexually assaulted his four- and six-year-old nephews. In 1998, he pleaded guilty to violating a Colorado law that prohibits sexual contact with a child under fifteen by anyone who is a least four years older than the child. Colo. Rev. Stat. § 18-3-405(1). Walker was sentenced to four years' probation, but probation was later revoked, and he served a term in prison. After his release, Walker had to register as a sex offender under the Sex Offender Registration and Notification Act (SORNA). SORNA imposes a three-tier progressive registration scheme that tracks the severity of the original offense. Tier I offenders must register for 15 years, Tier II offenders for 25 years, and Tier III offenders for life. See 34 U.S.C. § 20915(a).

         In 2017, Walker was indicted for failing to register as a sex offender from June 2016 to July 2017. See 18 U.S.C. § 2250(a). To prove "failure to register," the government must, among other things, prove that the defendant was in fact required to register. Id. § 2250(a)(1). Walker moved to dismiss the indictment, arguing that his 1998 conviction was only a Tier I offense, which would mean that his obligation to register as a sex offender ended 15 years after his conviction and sentence. Because he had no obligation to register between June 2016 and July 2017, he contended, he could not be convicted for failing to do so.

         The district court disagreed. It determined that Walker was at least a Tier II offender and denied his motion to dismiss. Walker later entered a conditional guilty plea, preserving his right to appeal the district court's decision about whether the law required him to register as a sex offender.

         At sentencing, the district court had to determine more precisely whether Walker was a Tier II or Tier III offender in order to calculate his guidelines range. The relevant difference between Tiers II and III for purposes of the district court's analysis is the age of the victim: if the defendant's victim was under 13, then he is a Tier III offender; if the victim was a minor age 13 or older, then he is a Tier II offender. See 34 U.S.C. § 20911(4)(A)(ii) & (3)(A). Though Walker's conviction under the Colorado statute communicated only that his victim was under 15, the district court looked past the conviction to find that his victims were actually ages four and six. The court thus held that Walker was a Tier III offender and sentenced him to a below-guidelines 26-month term of imprisonment.

         Walker appeals, arguing that his conviction must be vacated because he is a Tier I offender and was therefore not required to register during the relevant time.

         II.

         Walker's conviction and sentence both turn on his tier classification. If he is a Tier I offender, we must reverse the denial of his motion to dismiss and vacate his conviction. If he is a Tier II offender, his conviction stands, but he must be ...


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