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Westlaw. 
42 U.S.C.A. § 16911 
Page I 
1> 
Effective: July 27, 2006 
United States Code Annotated Currentness 
Title 42. The Public Health and Welfare 
Chapter 151. Child Protection and Safety 
Subchapter I. Sex Offender Registration and Notification 
re Part A. Sex Offender Registration and Notification 
. § 16911. Relevant definitions, including Arnie Zyla expansion of sex offender definition and 
expanded inclusion of child predators 
In this subchapter the following definitions apply: 
(I) Sex offender 
The term "sex offender" means an individual who was convicted of a sex offense. 
(2) Tier I sex offender 
The term "tier I sex offender" means a sex offender other than a tier II or tier III sex offender. 
(3) Tier II sex offender 
The term "tier II sex offender" means a sex offender other than a tier III sex offender whose offense is 
punishable by imprisonment for more than I year and--
(A) is comparable to or more severe than the following offenses, when committed against a minor, or an 
attempt or conspiracy to commit such an offense against a minor: 
(i) sex trafficking (as described in section 1591 of Title 18); 
(ii) coercion and enticement (as described in section 2422(b) of Title 18); 
(iii) transportation with intent to engage in criminal sexual activity (as described in section 2423(a)) 
of Title IS; 
(iv) abusive sexual contact (as described in section 2244 of Title 18); 
(B) involves--
(i) use of a minor in a sexual performance; 
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42 U.S.C.A. § 16911 
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(ii) solicitation of a minor to practice prostitution; or 
(iii) production or distribution of child pornography; or 
(C) occurs after the offender becomes a tier I sex offender. 
(4) Tier Ill sex offender 
The term "tier Ill sex offender" means a sex offender whose offense is punishable by imprisonment for more 
than I year and--
(A) is comparable to or more severe than the following offenses, or an attempt or conspiracy to commit 
such an offense: 
(i) aggravated sexual abuse or sexual abuse (as described in sections 2241 and 2242 of Title 18); or 
(ii) abusive sexual contact (as described in section 2244 of Title 18) against a minor who has not 
attained the age of 13 years; 
(B) involves kidnapping of a minor (unless committed by a parent or guardian); or 
(C) occurs after the offender becomes a tier II sex offender. 
(5) Arnie Zyla expansion of sex offense definition 
(A) Generally 
(A) Generally 
Except as limited by subparagraph (B) or (C), the term " sex offense" means--
(i) a criminal offense that has an element involving a sexual act or sexual contact with another; 
(ii) a criminal offense that is a specified offense against a minor; 
(iii) a Federal offense (including an offense prosecuted under section 1152 or 1153 of Title 18) under 
section 1591, or chapter 109A, 110 (other than section 2257, 2257A, or 2258), or 117, of Title 18; 
(iv) a military offense specified by the Secretary of Defense under section 15(aX8XC)(i) of Public Law 
105-119 (10 U.S.C. 951 note); or 
(I) an attempt or conspiracy to commit an offense described in clauses (i) through (iv). 
(B) Foreign convictions 
(B) Foreign convictions 
A foreign conviction is not a sex offense for the purposes of this subchapter if it was not obtained with 
sufficient safeguards for fundamental fairness and due process for the accused under guidelines or regulations 
established under section 16912 of this title. 
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42 U.S.C.A. § 16911 
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(C) Offenses involving consensual sexual conduct 
(C) Offenses involving consensual sexual conduct 
An offense involving consensual sexual conduct is not a sex offense for the purposes of this subchapter if the 
victim was an adult, unless the adult was under the custodial authority of the offender at the time of the 
offense, or if the victim was at least 13 years old and the offender was not more than 4 years older than the 
victim. 
(6) Criminal offense 
The term "criminal offense" means a State, local, tribal, foreign, or military offense (to the extent specified by 
the Secretary of Defense under section I15(a)(8XC)(i) of Public Law 105-119 (10 U.S.C. 951 note)) or other 
criminal offense. 
(7) Expansion of definition of "specified offense against a minor" to include all offenses by child predators 
The term " specified offense against a minor" means an offense against a minor that involves any of the 
following: 
(A) An offense (unless commined by a parent or guardian) involving kidnapping. 
(B) An offense (unless committed by a parent or guardian) involving false imprisonment. 
(C) Solicitation to engage in sexual conduct. 
(D) Use in a sexual performance. 
(E) Solicitation to practice prostitution. 
•
 
(F) Video voyeurism as described in section 1801 of Title IS. 
(C) Possession, production, or distribution of child pornography. 
(H) Criminal sexual conduct involving a minor, or the use of the Internet to facilitate or attempt such 
conduct. 
(I) Any conduct that by its nature is a sex offense against a minor. 
(8) Convicted as including certain juvenile adjudications 
The term "convicted" or a variant thereof, used with respect to a sex offense, includes adjudicated delinquent 
as a juvenile for that offense, but only if the offender is 14 years of age or older at the time of the offense and 
the offense adjudicated was comparable to or more severe than aggravated sexual abuse (as described in 
section 2241 of Title 18), or was an attempt or conspiracy to commit such an offense. 
(9) Sex offender registry 
The term "sex offender registry" means a registry of sex offenders, and a notification program, maintained by 
a jurisdiction. 
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42 U.S.C.A. § 16911 
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(10) Jurisdiction 
The term "jurisdiction" means any of the following: 
(A) A State. 
(B) The District of Columbia. 
(C) The Commonwealth of Puerto Rico. 
(U) Guam. 
(E) American Samoa. 
(F) The Northern Mariana Islands. 
(G) The United States Virgin Islands. 
(H) To the extent provided and subject to the requirements of section 16927 of this title, a federally 
recognized Indian tribe. 
(II) Student 
The term "student" means an individual who enrolls in or attends an educational institution, including 
(whether public or private) a secondary school, trade or professional school, and institution of higher 
education. 
(12) Employee 
The term "employee" includes an individual who is self-employed or works for any other entity, whether 
compensated or not. 
(13) Resides 
The term "resides" means, with respect to an individual, the location of the individual's home or other place 
where the individual habitually lives. 
(14) Minor 
The term "minor" means an individual who has not attained the age of 18 years. 
CREDIT(S) 
(Pub.L. 109-248, Title I, § 11 1, July 27, 2006, 120 Stat. 591.) 
HISTORICAL AND STATUTORY NOTES 
Revision Notes and Legislative Reports 
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42 U.S.C.A. § 169 I 1 
Page 5 
2006 Acts. Statement by President, see 2006 U.S. Code Cong. and Adm. News, p. S35. 
References in Text 
This subchapter, referred to in text, originally read "this title", meaning Title I (§ 101 et seq.] of Pub.L. 109-248, 
July 27, 2006, 120 Stat. 590, known as the Sex Offender Registration and Notification Act, which enacted this 
subchapter; for complete classification, see Short Title note set out under 42 U.S.C.A. § 16901 and Tables. 
Chapter 109A of Title IS, referred to in par. (5XA)(iii), is Sexual Abuse, 18 
§ 2241 et seq. 
Chapter 110 of Title 18, referred to in par. (5XA)(iii), is Sexual Exploitation and Other Abuse of Children, 18 
U.S.C.A. § 2251 et seq. 
Chapter 117 of Title IS, referred to in par. (5XA)(iii), is Transportation for Illegal Sexual Activity and Related 
Crimes, 18 U.S.C.A. § 2421 et seq. 
Section 115 of Public Law 105-119, referred to in par. (5)(AXiv), (6), is cl. (i) of Pub.L. 105.119, Title I, § 
115(a)(8XC), Nov. 26, 1997, III Stat. 2466, which is set out as a note under 10 U.S.C.A. § 951. 
NOTES OF DECISIONS 
Generally I 
Commerce clause 6 
Ex post facto 2 
Policy safety regulation 5 
Procedural due process 3 
Substantive due process 4 
I. Generally 
Congress did not impermissibly delegate its constitutional legislative duties by providing, in Sex Offender 
Registration and Notification Act (SORNA), that Attorney General was to specify whether statute was applicable 
to offenders convicted prior to its enactment date, and prescribe rules for registration of offenders unable to comply 
I
with statutory requirements; 
ongress was merely authorizing executive branch to give advice to courts on 
question of retroactivity. U.S. . Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Mental Health C
 433(2) 
2. Ex post facto 
Congress did not violate ex post facto law clause of Constitution by passing Sex Offender Registration and 
Notification Act (SORNA), on grounds that registration requirements were additional punishment inflicted upon 
aii 
offender after he committed sexual offense; purpose of SORNA was civil, assur 
e of public safety, rather than 
penal, and ex post facto prohibition applied only to penal provisions. U.S. 
Madera, M.D.Fla.2007, 474 
F.Supp.2d 1257. Mental Health e= 433(2) 
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register 
as a sex offender (FFR), did not violate the Ex Post Facto Clause by inflicting greater punishment on defendant, a 
previously-convicted sex offender, than was provided by law when he was convicted; Act's legislative history 
indicated that Congress's concern was with public safety rather than with a desire to further punish sex offenders, 
and the registration requirements were not so punitive as to negate Congress's intent that they be nonpunitive. U.S. 
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Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 'IC= 433(2) 
3. Procedural due process 
Sex Offender Registration and Notification Act (SORNA) did not violate procedural due process rights of 
convicted sex offender, by not providing for notice and hearing prior to publication of his name on offender 
1
registry or prior to being compelled to register as offender; since all convicted offe ers were required to register, 
there was no need for hearings to consider circumstances of individual cases. U.S. 
Madera, M.D.Fla.2007, 474 
F.Supp.2d 1257. Mental Health em" 433(2) 
Sex Offender Registration and Notification Act (SORNA) did not violate the procedural due process rights of 
defendant, a previously-convicted sex offender, by failing to give him actual notice that travel across state lin 
subjected him to criminal penalties; defendant had sufficient notice that failing to register was illegal. U.S. 115. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health e=s 433(2) 
4. Substantive due process 
Substantive due process rights of convicted sex offenders was not violated by Sex Offender Registration and 
Notification Act (SORNA), requiring that they register and disclose their whereabouts following release. U.S. I. 
Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. Mental Health le= 433(2) 
5. Policy safety regulation 
There was rational public safety basis for regulation of interstate commerce, underlying Sex Offender Registration 
and 
that released o 
nders
1
 Notification Act (SORNA) requirements 
report address changes to authorities, 
precluding claim that SORNA violated Commerce Clause. U.S. 
Madera, M.D.Fla.2007, 474 F.Supp.2d 1257. 
Mental Health 4:
7. 433(2) 
6. Commerce clause 
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register 
as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at 
last a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 4p=i 433(2) 
42 U.S.C.A. § 16911, 42 USCA § 16911 
Current through P.L. 110-133 approved 12-6-07 
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END OF DOCUMENT 
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restlaw. 
42 U.S.C.A. § 16914 
Effective: July 27, 2006 
United States Code Annotated Currentness 
Title 42. The Public Health and Welfare 
Chapter 151. Child Protection and Safety 
Subchapter I. Sex Offender Registration and Notification 
'Sit Part A. Sex Offender Registration and Notification 
§ 16914. Information required in registration 
(a) Provided by the offender 
Page I 
The sex offender shall provide the following information to the appropriate official for inclusion in the sex 
offender registry: 
(1) The name of the sex offender (including any alias used by the individual). 
(2) The Social Security number of the sex offender. 
(3) The address of each residence at which the sex offender resides or will reside. 
(4) The name and address of any place where the sex offender is an employee or will be an employee. 
(5) The name and address of any place where the sex offender is a student or will be a student. 
(6) The license plate number and a description of any vehicle owned or operated by the sex offender. 
(7) Any other information required by the Attorney General. 
(b) Provided by the jurisdiction 
The jurisdiction in which the sex offender registers shall ensure that the following information is included in the 
registry for that sex offender: 
(I) A physical description of the sex offender. 
(2) The text of the provision of law defining the criminal offense for which the sex offender is registered. 
(3) The criminal history of the sex offender, including the date of all arrests and convictions; the status of 
parole, probation, or supervised release; registration status; and the existence of any outstanding arrest 
warrants for the sex offender. 
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(4) A current photograph of the sex offender. 
(5) A set of fingerprints and palm prints of the sex offender. 
(6) A DNA sample of the sex offender. 
(7) A photocopy of a valid driver's license or identification card issued to the sex offender by a jurisdiction. 
(8) Any other information required by the Attorney General. 
CREDIT(S) 
(Pub.L. 109-248, Title I, § 114, July 27, 2006, 120 Stat. 594.) 
HISTORICAL AND STATUTORY NOTES 
Revision Notes and Legislative Reports 
2006 Acts. Statement by President, see 2006 U.S. Code Cong. and Adm. News, p. S35. 
42 U.S.C.A. § 16914, 42 USCA § 16914 
Current through P.L. 110-133 approved 12-6-07 
Copr. (C) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
END OF DOCUMENT 
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Westlaw 
42 U.S.C.A. § 16915 
Page I 
C 
Effective: July 27, 2006 
United States Code Annotated Currentness 
Title 42. The Public Health and Welfare 
Chapter 151. Child Protection and Safety 
'Li Subchapter 1. Sex Offender Registration and Notification 
re Part A. Sex Offender Registration and Notification 
- § 16915. Duration of registration requirement 
(a) Full registration period 
A sex offender shall keep the registration current for the full registration period (excluding any time the sex 
offender is in custody or civilly committed) unless the offender is allowed a reduction under subsection (b) of this 
section. The full registration period is--
(1) 15 years, if the offender is a tier I sex offender; 
(2) 25 years, if the offender is a tier II sex offender; and 
(3) the life of the offender, if the offender is a tier III sex offender. 
(b) Reduced period for clean record 
(I) Clean record 
(I) Clean record 
The full registration period shall be reduced as described in paragraph (3) for a sex offender who maintains a clean 
record for the period described in paragraph (2) by--
(A) not being convicted of any offense for which imprisonment for more than I year may be imposed; 
(B) not being convicted of any sex offense; 
(C) successfully completing any periods of supervised release, probation, and parole; and 
(D) successfully completing of an appropriate sex offender treatment program certified by a jurisdiction or by 
the Attorney General. 
(2) Period 
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(2) Period 
In the case of--
(A) a tier I sex offender, the period during which the clean record shall be maintained is 10 years; and 
(B) a tier Ill sex offender adjudicated delinquent for the offense which required registration in a sex registry 
under this subchapter, the period during which the clean record shall be maintained is 25 years. 
(3) Reduction 
(3) Reduction 
In the case of--
(A) a tier I sex offender, the reduction is 5 years; 
(B) a tier 111 sex offender adjudicated delinquent, the reduction is from life to that period for which the clean 
record under paragraph (2) is maintained. 
CREDIT(S) 
(Pub.L. 109-248, Title I, § 115, July 27, 2006, 120 Stat. 595.) 
HISTORICAL AND STATUTORY NOTES 
Revision Notes and Legislative Reports 
2006 Acts. Statement by President, see 2006 U.S. Code Cong. and Adm. News, p. S35. 
References in Text 
This subchapter, referred to in subset. (b)(2XB) originally read "this title", meaning Title I [§ 101 et seq.] of 
Pub.L. 109-248, July 27, 2006, 120 Stat. 590, known as the Sex Offender Registration and Notification Act, which 
enacted this subchapter; for complete classification, see Short Title note set out under 42 U.S.C.A. § 16901 and 
Tables. 
42 U.S.C.A. § 16915, 42 USCA § 16915 
Current through P.L. 110-133 approved 12-6-07 
Copr. (C) 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 
END OF DOCUMENT 
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F.3d ----, 2007 WL 4510264 (C.A.10 (Utah)) 
(Cite as: — F.3d --) 
H 
U.S. I Rakes 
C.A.I0 (Utah),2007. 
Only the \Vestlaw citation is currently available. 
United States Court of Appeals,Tenth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Joe RAKES, Defendant-Appellant. 
No. 06-4208. 
Dec. 26,2007. 
Background: Defendant was convicted in the 
United States District Court for the District of Utah 
of conspiring to impede or injure an officer, and 
was sentenced to 63 months' imprisonment, and he 
appealed. 
Holdings: The Court of Appeals, Gorsuch, Circuit 
Judge, held that: 
(I) evidence was sufficient to support conviction; 
(2) court did not violate rule of criminal procedure 
requiring court to provide the parties with any 
information on which it would rely in sentencing; 
(3) any violation of rule of criminal procedure 
governing pleas was harmless error; and 
(4) applicable sentencing guideline was guideline 
for threatening or harassing communications. 
Affirmed. 
111 Criminal Law 110 e=0 
110 Criminal Law 
In assessing challenges to the sufficiency of the 
evidence to support a conviction, the court of 
appeals reviews the evidence presented de novo, 
asking whether, viewing it in the light most 
favorable to the government, as the prevailing party, 
any rational trier of fact could have found the 
essential elements of the crime beyond a reasonable 
doubt. 
121 Criminal Law 110 €='0 
110 Criminal Law 
The evidence of the existence of an agreement 
between defendant and another person to prevent 
the victim, a prosecutor, from discharging her duties 
by sending her a threatening letter was sufficient to 
support defendant's conviction for conspiring to 
impede or injure an officer; although coconspirator 
presented alternative and conflicting testimony 
about nature of her involvement in alleged 
conspiracy, including statements suggesting she was 
coerced by defendant, by voices in her head, or 
perhaps by someone else, one of the accounts she 
offered did involve admission of her knowing and 
voluntary participation in scheme with defendant, 
and friend of defendant, who read the letter at 
defendant's apartment, testified defendant told him 
that he and coconspirator had written letter. 18 
U.S.C.A. § 372. 
131 Criminal Law I ICI e=0 
I ID Criminal Law 
In prosecution for conspiring to impede or injure an 
officer, district court did not violate rule of criminal 
procedure requiring sentencing court to provide the 
parties with any information on which it would rely 
in sentencing by failing to disclose at hearing on 
parties' plea agreement that court had received a 
victim impact letter from the prosecutor who was 
the victim in the case; the court did not sentence 
defendant at the hearing on the plea agreement, and 
instead, concluded the hearing by advising the 
parties that it was rejecting the agreement's 
recommended sentence, and would not sentence 
defendant that day in accord with the agreement. 
Fed.Rules Cr.Proc.Rule 32(iXIXB), 18 U.S.C.A. 
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F.3d 
2007 WL 4510264 (C.A.I0 (Utah)) 
(Cite as: -- F.3d —) 
141 Criminal Law 110 €=.0 
110 Criminal Law 
In prosecution for conspiring to impede or injure an 
officer, any violation of rule of criminal procedure 
governing pleas in district court's failure to disclose 
at hearing at which court rejected recommended 
sentence in parties' plea agreement that court had 
received victim impact letter from victim in the case 
was harmless error; after defendant learned of letter, 
he asked court to reconsider rejection of plea 
agreement, and court denied reconsideration, stating 
it would have rejected agreement regardless of letter 
for reasons set forth on record, including court's 
assessment that guidelines advisory sentence for 
crime to which defendant agreed to plead guilty was 
at least double the parties' agreed sentence, and 
neither party had offered persuasive reason for such 
a disparity. Fed.Rules Cr.Proc.Rule 
11(h), 
18 
U.S.C.A. 
I5I Sentencing and Punishment 350H €=.1) 
3501i Sentencing and Punishment 
For 
purposes 
of defendant's 
sentencing 
for 
conspiring to impede or injure an officer, an offense 
for which no sentencing guidelines range was 
designated, most analogous guideline, and thus, 
applicable guideline, was guideline for threatening 
or harassing communications, rather than for 
obstructing or impeding an officer; indictment 
charged conspiracy to threaten and intimidate 
federal prosecutor by writing letter with threatening 
language, listing street on which victim lived, and 
mailing letter to victim, and although defendant 
sought to impede prosecution of members of white 
supremacy group, he intended to do so by means of 
premeditated and comparatively complex scheme of 
intimidation rather than by act of simple assault, 
and case proven at trial centered around threatening 
letter. U.S.S.G. §§ 2A2.4, 2A6.1(aX1). 18 U.S.C.A. 
Appeal from the United States District Court for the 
District of Utah (D.C. No. 2:05-CR- 13 I -TS). 
Jeremy M. Delicino, Salt Lake City, Utah, for 
Defendant-Appellant. 
Jack B. Haycock, Assistant United States Attorney 
(Thomas E. Moss, United States Attorney, with him 
on 
the 
brief), 
Pocatello, 
Idaho, 
for 
Plaintiff-Appellee. 
Before LUCERO, BALDOCK, and GORSUCH, 
Circuit Judges. 
GORSUCH, Circuit Judge. 
*1 Joe Rakes challenges his conviction and 
resulting 
sentence 
arising 
from 
an 
alleged 
conspiracy 
to 
impede 
the 
investigation 
and 
prosecution of a white supremacy group, the 
Soldiers of Aryan Culture. Specifically, he argues 
that (I) the evidence presented at trial was 
insufficient to establish a conspiracy between him 
and another participant in the alleged scheme: (2) 
the district court improperly rejected his plea 
agreement based on an undisclosed victim impact 
letter; and (3) the district court applied the wrong 
provision 
of 
the 
United 
States 
Sentencing 
Guidelines 
("Guidelines") 
in 
calculating 
his 
sentence. While none of these arguments is without 
force, we ultimately conclude that none merits 
reversal under our governing standards of review. 
A 
In March 2004, an Assistant United States Attorney 
for the District of Utah in Salt Lake City received a 
threatening letter stating, "You stupid bitch! It is 
because of you that my brothers are in jail for the 
Rico. I know you live on the [street name redacted). 
We will get you. til the casket drops."The letter 
apparently referred to an ongoing racketeering 
prosecution under the Racketeer Influenced and 
Corrupt Organization Act ("RICO") that the victim 
prosecutor was pursuing against members of the 
Soldiers of Aryan Culture. As a result of the letter, 
the prosecutor moved out of her home for a month, 
was assigned a United States Marshals detail to 
protect her for a time, and was eventually removed 
from the prosecution in question. 
The Federal Bureau of Investigation's subsequent 
investigation of the letter led to a woman named 
April Dowding, a friend of two of the RICO 
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F.3d 
2007 WL 4510264 (C.A. I0 (Utah)) 
(Cite as: — F.3d 
defendants who was known to refer to them as her 
brothers. Ms. Dowding identified Mr. Rakes as 
being involved in writing or mailing the threatening 
letter, as did other witnesses, including Laura Scott 
and Doug Erten. 
The government indicted Mr. Rakes in March 2005 
in the District of Utah on two counts: mailing a 
threatening communication, 18 U.S.C. § 876, and 
conspiring to impede or injure an officer, 18 U.S.C. 
§ 372. After initially pleading not guilty, Mr. Rakes 
agreed to enter a plea of guilty to the lesser offense 
misprision of a felony. 18 U.S.C. § 4, in exchange 
for an agreement from the government that the 
appropriate sentence was 9 months imprisonment, 
below the 18 to 24 months suggested by Section 
2X4.I 
of 
the 
advisory 
Guidelines. 
See 
Fed.R.Crim.P. 111(c)(IXC). The court conditionally 
accepted the change of plea, subject to its receipt of 
a presentence report and subsequent sentencing 
hearing. 
Prior to sentencing, the district court received a 
victim impact letter, seel8 U.S.C. § 377I(aX4), 
from the victim prosecutor but did not disclose the 
existence of the letter either to defense counsel or 
counsel for the government. At sentencing, the 
district court opened the proceeding by expressing 
doubt about the parties' recommended sentence of 
nine months, remarking that it would like them to 
explain how such a sentence would be justifiable 
even though it represented only half what the 
advisory Guidelines recommended as a minimum 
sentence. 
After 
argument, 
the 
district 
court, 
apparently seeing no convincing reason for a 
below-Guidelines 
sentence, 
reversed 
its 
prior 
conditional 
approval of the 
plea 
agreement, 
indicated its belief that a more substantial sentence 
was merited, and explained that it was concerned 
with 
*2 the very real victim impact presented by this 
case. This is a serious matter. The impact on a 
respected Assistant U.S. Attorney in her role as an 
Assistant U.S. Attorney is very real. Furthermore, 
the impact on her as an individual, on her family is 
very real. And the Court is concerned about the 
message that might be sent if this matter is not 
properly punished. 
R. III at 
10.11. With the plea agreement's 
recommended sentence rejected, the district court 
advised Mr. Rakes of his right to withdraw his 
guilty plea and proceed to trial, seeFed.R.Crim.P. 
I 1(cX5), a right Mr. Rakes decided to exercise. 
B 
At trial, Ms. Dowding, the government's primary 
witness, testified that the threatening letter was 
created in Mr. Rakes's apartment but otherwise 
offered contradictory factual scenarios concerning 
its genesis, stating variously that (I) Mr. Rakes 
threatened her into writing the letter; (2) she could 
have been threatened by someone else or the voices 
in her head; and (3) she wrote the letter willingly, 
with the help of Mr. Rakes or at his suggestion, 
because she was upset about the treatment of her " 
brothers" in the white supremacy group who were 
charged in the RICO case and were in jail. 
Laura Scott was similarly equivocal in recalling her 
own involvement with the letter. She did testify, 
however, that she was a friend of Mr. Rakes and, at 
his direction and borrowing his car, went to the 
library to look up the address of the victim 
prosecutor. Ms. Scott brought the information back 
to Mr. Rakes at his apartment, where she saw Ms. 
Dowding was writing and had paper and envelopes. 
Doug Errett testified that he was also a friend of Mr. 
Rakes, having known him in prison where they were 
both members of the Fourth Reich, a white 
supremacist prison gang. Mr. Errett slated that in 
February 2004 he was at Mr. Rakes's residence with 
Mr. Rakes and Ms. Dowding, where he saw the 
letter in question. At that time Mr. Rakes told him 
he and Ms. Dowding had written the letter to the 
prosecutor on the Soldiers of Aryan Culture case. 
At the close of the government's case, Mr. Rakes 
moved 
for 
acquittal 
on 
both 
counts, 
see 
Fed.R.Crim.P. 29, which the district court granted 
as to Count I. mailing a threatening communication, 
but denied as to Count II, conspiring to impede or 
injure an officer. The jury thereafter found Mr. 
Rakes guilty of the surviving count, and the district 
court denied his renewed Rule 29 motion. Before 
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—F.3d--
-- F.3d 
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sentencing, Mr. Rakes filed a motion for disclosure 
of any victim impact statements pursuant to Rule 32 
of the Federal Rules of Criminal Procedure, which 
the district court granted, providing both parties the 
letter it had received from the victim prosecutor. 
Because the district court had not disclosed the 
letter at the plea agreement stage, Mr. Rakes moved 
the district court to reconsider the plea agreement 
and recuse itself so another judge could handle the 
inquiry. The district court denied the motion. 
*3 In preparing its presentence report, the probation 
office encountered a different sort of complication. 
Because Mr. Rakes's offense, conspiracy to impede 
or injure an officer, 18 U.S.C. § 372, does not have 
an assigned Sentencing Guidelines section, the 
probation office was required to analogize to 
another Guidelines section and ultimately chose to 
employ Section 2A6.1(aX1), which covers certain 
crimes 
involving 
threatening 
or 
harassing 
communications and has a base offense level of 12. 
Mr. Rakes objected, arguing that 
the most 
analogous guideline was Section 2A2.4, relating to 
obstructing or impeding a law enforcement officer, 
with a base offense level of 10. The district court 
overruled Mr. Rakes's objection and, employing 
Section 2A6.1(aX I), sentenced Mr. Rakes to 63 
months imprisonmentFN 
II 
[1][2] On appeal, Mr. Rakes first contends that the 
government presented insufficient evidence at trial 
on an essential element of his crime-namely, the 
existence of an agreement between him and another 
person to prevent the victim from discharging her 
duties by the use of force, violence, or intimidation. 
In assessing such sufficiency challenges, we review 
the evidence presented de novo, asking whether, 
viewing it in the light most favorable to the 
government, as the prevailing party, any rational 
trier of fact could have found the essential elements 
of the crime beyond a reasonable doubt. In so 
doing, we do not weigh conflicting evidence or 
credibility, but ask only whether the government's 
evidence, credited as true, would establish 
elements 
of 
the 
crime. 
United 
States
Delgado-Uribe, 
363 
F.3d 
1077, 
1081 (10 
Page 4 
Cir.2004). While our standard of review is 
deferential to be sure, we will not uphold a 
conviction obtained by piling inference upon 
inference, and the evidence supporting a conviction 
tli
must do more
mere 
an raise a 
 suspicion of guilt. 
United States 
Valadez-Gallegos, 162 F.3d 1256, 
1262-63 (10th ir.1998). 
Mr. Rakes argues that Ms. Dowding could not have 
been a willing coconspirator with him because she 
was thtI
tened into writing the letter. See United 
States 
Williamson 53 F.3d 1500, 1519 (10th 
Cir.199 
(requiring some evidence that an alleged 
co-conspirator knowingly and voluntarily joined the 
conspiracy). This argument is, of course, addressed 
solely to whether a conspiracy existed between Mr. 
Rakes and Ms. Dowding and does not contemplate 
the possibility that, even without Ms. Dowding, the 
jury could have found a voluntary agreement 
between Mr. Rakes and Ms. Scott or perhaps Mr. 
Errett. Because in its briefing before us the 
government also pursues the theory that the 
conspiracy was primarily between Mr. Rakes and 
Ms. Dowding, and because we agree that sufficient 
evidence of such a conspiracy was presented, we 
accept for our current purposes Mr. Rakes's premise 
that the conspiracy was only between Ms. Dowding 
and himself. 
Viewing the case in this light, we begin by readily 
acknowledging 
that 
Ms. 
Dowding 
presented 
alternative and conflicting testimony about the 
nature of her involvement in the alleged conspiracy, 
including statements suggesting she was coerced by 
Mr. Rakes, by voices in her head, or perhaps by 
someone else. But one of the accounts she offered 
did involve an admission of her knowing and 
voluntary participation in a scheme with Mr. Rakes. 
In our judicial system, the jury, as factfmder, was 
charged with the task of sifting the wheat from the 
chaff, discerning which (if any) of145. Dowding's 
accounts merited belief. See Young I Sermons, 486 
F.3d 655, 666 (10th Cir.2007) ("[It is] the 
responsibility of the trier of fact fairly to resolve 
conflicts in the testimony, to weigh the evidence, 
i
and to draw reasonable inferences 
' facts 
to ultimate facts."(quoting Jackson 
443 
U.S. 307, 319, 99 S.Ct. 2781, 
. . 
560 
(1979)). Of course, a jury is not free to credit 
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testimony beyond the pale of reason, see Parker lc 
Scott, 394 F.3d 1302, 1315 (10th Cir.200 
(distinguishing inconsistent testimony from that 
which is "inherently implausible"), but we are not 
allowed to substitute our judgment for that of the 
jury when it comes to deciding which rationally 
plausible account of the facts to credit, see Young, 
486 F.3d at 666. 
*4 Though the question whether Ms. Dowding was 
worthy of belief in any of her accounts is not one 
that can be reflexively dismissed, neither can we say 
that no rational jury could have credited her 
testimony that she wrote the letter willingly, with 
the help of, or at the suggestion of, Mr. Rakes. It 
seems to us that the jury could have reasonably 
concluded that this particular version of events was 
more believable than Ms. Dowding's alternative 
explanations, and that her alternative explanations 
were calculated to minimize her own culpability and 
rationalize her willing involvement with Mr. Rakes. 
Bolstering the plausibility of such a conclusion is 
the fact that Ms. Dowding was not the sole source 
of evidence about the agreement between herself 
and Mr. Rakes. Mr. Errett, who read the threatening 
letter at Mr. Rakes's apartment, testified that Mr. 
Rakes told him that he and Ms. Dowding had 
written the letter. Ms. Scott likewise testified that, 
after she looked up the address of the victim at the 
library, she brought it back to Mr. Rakes at his 
apartment, where Ms. Dowding, under no apparent 
duress, was writing and had paper and envelopes. 
To the extent that the jury believed either or both of 
these 
witnesses, 
their 
testimony 
tended 
to 
corroborate, 
and 
thus 
help 
make 
rationally 
plausible, Ms. Dowding's version of the events in 
which she and Mr. Rakes knowingly and voluntarily 
conspired. 
While this case surely required the jury to pick and 
choose among competing versions of events, with at 
least three witnesses testifying that Ms. Dowding 
and Mr. Rakes worked together on the threat letter 
we cannot say, as we must for Mr. Rakes to prevail, 
that no rational trier of fact could have found 
beyond a reasonable doubt that Ms. Dowding and 
Mr. Rakes entered into an agreement aimed at 
preventing the victim prosecutor from performing 
her job by means of force, violence, or intimidation. 
Page 5 
111 
[3] Mr. Rakes next contends that the district court 
committed reversible error by failing to disclose the 
victim impact letter during the course of its hearing 
on the parties' plea agreement.FN2In aid of his 
argument, Mr. Rakes rests primarily on Rule 32 of 
the Federal Rules of Criminal Procedure, which 
requires a sentencing court to provide both parties 
with any information on which it will rely in 
sentencing and give them a reasonable opportunity 
to comment on the information. SeeFed.R.Crim.P. 
32(iXIXB). Under our case law, failing to disclose 
evidence on which the court relied in sentencing 
may reiIt in a remand for resentencing. See United 
States 
Alvarado, 909 F.2d 1443, 1444-46 (10th 
Cir.I99 ). 
We agree with Mr. Rakes and the government that it 
would have been better for the district court to have 
provided the parties with copies of the victim 
impact letter prior to its disposition of the plea 
agreement. Doing so would have made more 
transparent the district court's concerns about 
whether the plea agreement's proposed sentence 
adequately accounted for the crime's impact on the 
victim prosecutor and would have allowed the 
parties to address those concerns more intelligently. 
But, by its plain terms, Rule 32(iXIXB) obligates 
the district court to provide the parties advance 
access to information on which it "will rely in 
sentencing." And the harm it seeks to safeguard 
against is sentencing based on evidence that the 
parties have not had reasonable notice of and 
opportunity to address. See United Suites
 Begay, 
117 Fed.Appx. 682, 683 (10th Cir.2004 (noting 
Rule 32 seeks "to ensure that sentencing is based on 
reliable facts found by the court itself after 
deliberation").R43 Here, however, the court did not 
sentence Mr. Rakes. Instead, it concluded the 
hearing by advising the parties that it would not 
sentence Mr. Rakes that day in accord with their 
plea agreement. Had the court proceeded to issue 
something other than the parties' agreed sentence 
without 
first 
affording 
them 
a 
meaningful 
opportunity to review and comment on the victim's 
letter, Rule 32(iXIXB) surely would have been 
implicated and we would have before us a very 
different case. As it is, however, we cannot say the 
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rule, by its plain terms, was violated, or that the 
harm it seeks to avoid was implicated. In fairness to 
the district court we must also note that, although 
the parties did not have the victim's letter, they were 
at least on notice of its existence and could have 
sought its production. The presentence report 
prepared for the plea hearing explicitly stated, under 
"Victim Impact," that "[the victim] is preparing a 
statement that will be submitted directly to the 
Court."P.S.R. of Oct. 5, 2005 at ¶ II. 
*5 [4] Beyond Rule 32, there remains in our view a 
distinct and even more germane question* A district 
court enjoys substantial discretion in deciding 
whether to accept or reject a plea agreement under 
gule II. SeeFed.R.Crim.P. 11(O3); United States 
I Robertson, 15 F.3d 1423, 1438 (10th Cir.I995); 
United States I Carrigan, 778 F.2d 1454, 1461-62 
(10th Cir.I985). But that discretion is not without 
limit. See Robertson. 45 F.3d at 1438. While a 
defendant has no absolute right to have his plea 
agreement accepted, in our supervisory capacity we 
have placed some boundaries on the district court's 
discretion-requiring district courts, for example, to 
articulate reasons on the record if and when they 
decide to reject such agreements in order, among 
other things, "to insure district courts exercise 
sound judicial discretion."N. Though Mr. Rakes's 
brief primarily 
discusses 
Rule 
32, 
we also 
understand him to suggest that, even if Rule 32 is 
not implicated, a district court cannot exercise 
sound judicial discretion under Rule II in rejecting 
a plea agreement when it acts on the basis of 
undisclosed evidence, and this strikes us as a very 
different and more appropriately targeted question. 
The parties, however, have directed us to no 
authority on this issue and, at the end of the day, we 
believe this case is properly resolved without 
reaching it. Rule I I expressly provides that, even if 
the rules associated with the acceptance or rejection 
of a plea agreement are violated, any such error is 
to be deemed "harmless error if it does not affect 
substantial rights."Fed.R.Crim.P. 11(h); see also 
Fed.R.Crim.P. 
52(a) 
("Any 
error, 
defect, 
irregularity, or variance that does not affect 
substantial rights must be disregarded."). On 
balance, we think this mandate applies here. 
After Mr. Rakes became aware of the victim impact 
letter, he asked the district court to reconsider its 
decision to reject the parties' plea agreement, 
arguing that the court's decision had improperly 
relied on undisclosed information. The district court 
denied 
reconsideration, 
citing, 
among 
other 
grounds. the fact that it "would have rejected the 
plea agreement regardless of the letter for the 
reasons set forth plainly on the record."Sealed 
Mem. Decision and Order. at 5. Those reasons 
included the district court's assessment that the 
Guidelines advisory sentence for the crime to which 
Mr. Rakes agreed to plead guilty was at least double 
that of the panics' agreed sentence and neither part) 
had offered a persuasive reason for such a disparity 
under the facts and circumstances of this case. 
Before us on appeal. Mr. Rakes likewise offers us 
no reason to doubt the district court's assessment, 
making no attempt to show why such a disparity 
would have been warranted. Neither does he 
identify, nor did he state in his motion to reconsider. 
what information in the victim's letter was incorrect 
or what arguments addressing it he would have 
made to the district court. Without being given some 
reason to think that a sentencing court would have 
reached a different outcome in the disposition of the 
plea agreement had the letter been disclosed, we are 
compelled to conclude that, even taking the district 
court's failure to disclose the letter to be error, it 
was harmless error. 
IV 
*6 [5] After trial, the district court sentenced Mr. 
Rakes on the sole surviving charge, 18 U.S.C. § 372 
, in accord with Section 2A6.1(a)(I), the guideline 
for threatening or harassing communications. Mr. 
Rakes argues that the most analogous guideline is 
instead Section 2A2.4, pertaining to obstructing or 
impeding an officer, and that his sentence was 
therefore in error. 
In approaching this dispute, we note at the outset 
that it is common ground between the parties that 
the Sentencing Guidelines Manual does not specify 
a sentencing range for Mr. Rakes's offense, and so 
the district court was obliged to "apply the most 
analogous offense guideline [or,][i]f there is not a 
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• 
1176 
476 FEDERAL REPORTER, 3d SERIES 
UNITED STATES of America, 
Plaintiff—Appellee, 
I 
Justin' EVANS, Defendant-Appellant. 
No. 06-10907. 
United States Court of Appeals, 
Eleventh Circuit. 
Jan. 30, 2007. 
Background: Defendant was convicted in 
the United States District Court for the 
Southern District of Florida, No. 05-20444-
CR-PAS, Patricia A. Seitz, J., of enticing a 
minor to engage in a commercial sex act, 
and enticing a minor to engage in prostitu-
tion, and he appealed. 
Holdings: The Court of Appeals, Bow-
man, Circuit Judge, sitting by designation, 
held that: 
(1) even though all of defendant's conduct 
involving child occurred solely within 
the state of Florida, defendant's con-
duct satisfied interstate-commerce ele-
ment of Trafficking Victims Protection 
Act (TVPA) provision prohibiting the 
enticing of a minor to engage in a 
commercial sex act, and 
(2) defendant's use of telephones and cel-
lular telephones, even without evidence 
that the calls he made were routed 
through an interstate system, was suf-
ficient to satisfy interstate-commerce 
element of statute prohibiting enticing 
a minor to engage in prostitution. 
Affirmed. 
I. Criminal Law 43=4139, 1149 
A district court's denial of a motion to 
dismiss an indictment is generally re-
viewed for abuse of discretion; however, 
when the motion to dismiss the indictment 
challenges the court's subject matter juris-
diction, appellate court reviews de nerd 
the district court's interpretation and ap-
plication of the statutory provisions con-
cerning the court's subject matter jurisdic-
tion. 
2. Criminal Law e=,1139 
Whether a statute is unconstitutional 
as applied is a question of law subject to de 
novo review. 
3. Commerce e=82.6 
Infants c=i13 
Even though all of defendant's con-
duct involving child occurred solely within 
the state of Florida, defendant's conduct 
satisfied interstate-commerce element of 
Trafficking Victims Protection Act (TVPA) 
provision prohibiting the enticing of a mi-
nor to engage in a commercial sex act; 
defendant's enticement of child to commit 
prostitution had the capacity, when consid-
ered in the aggregate with similar conduct 
by others, to frustrate Congress's broader 
regulation of interstate and foreign eco-
nomic activity. 18 U.S.C.A. 6 1591(a). 
4. Commerce 0 ,82.6 
Infants e=13 
Trafficking Victims Protection Act 
(TVPA) provision prohibiting the enticing 
of a minor to engage in a commercial sex 
act does not require knowledge by a defen-
dant that his actions are in or affecting 
interstate 
commerce. 
18 
U.S.C.A. 
1591(a)(1). 
5. Commerce em•7(2) 
Under Congress's Commerce Clause 
authority, Congress is empowered to regu-
late and protect the instrumentalities of 
interstate commerce even though the 
threat may come only from intrastate ac-
tivities. 
Const. Art. 1, 6 8, cl. 8. 
6. Commerce 4:=59 
Telephones and cellular telephones 
are instrumentalities of interstate com-
merce for purposes of Commerce Clause. 
U.S.C.A. Cont. Art. 1, 6 8, cl. 3. 
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U.S. I EVANS 
1177 
Cite as 476 F.3.1 1176 (I Ithar. 2007) 
7. Commerce 4=82.10 
Prostitution ,2=15 
Defendant's use of telephones and cel-
lular telephones, even without evidence 
that the calls he made were routed 
through an interstate system, was suffi-
cient to satisfy interstate-commerce ele-
ment of statute prohibiting enticing a mi-
nor to engage in prostitution. 18 U.S.C.A. 
§ 2422(b). 
Faith Mesnekoff and Richard C. Klugh, 
Jr., Fed. Pub. Defenders, Jacqueline Esth-
er Shapiro, Asst. Fed. Pub. Del., Miami, 
FL, Kathleen M. Williams, Fed. Pub. Def., 
West Palm Beach, FL, for Evans. 
Lisa T. Rubio, Dawn Bowen, Anne R. 
Schultz, Asst. U.S. Atty., Miami, FL, for 
U.S. 
Appeal from the United States District 
Court for the Southern District of Florida. 
Before TJOFLAT, HULL and 
BOWMAN,* Circuit Judges. 
BOWMAN, Circuit Judge: 
Justin Evans appeals his convictions for 
enticing a minor to engage in a commercial 
sex 
act in violation of 18 
U.S.C. 
§ 1591(aXl), and enticing a minor to en-
gage in prostitution in violation of 18 
U.S.C. § 2422(b). Evans asserts that the 
district court erred in denying his motion 
to dismiss the indictment. 
Specifically, 
Evans challenges the constitutionality of 
§ 1591(aX1) and § 2422(b) as applied to 
his purely local actions and the sufficiency 
of the stipulated facts to satisfy the juris-
dictional interstate-commerce elements of 
the offenses. After review and oral argu-
ment, we affirm. 
• Honorable Pasco M. Bowman II. United 
States Circuit Judge for the Eighth Circuit. 
I. 
A federal grand jury indicted Evans and 
two co-defendants for their roles in operat-
ing a child prostitution ring in Miami—
Dade County, Florida. Evans filed a mo-
tion to dismiss the indictment, contending 
that the evidence upon which the govern-
ment planned to rely would not satisfy the 
interstate-commerce element of the stat-
utes under which he was charged. There-
after, the parties agreed to proceed by 
way of a conditional guilty plea. Evans 
pleaded guilty to violating 18 U.S.C. 
1591(a)(1) and 2422(b), but reserved his 
right to pursue his motion to dismiss the 
indictment. See Fed.R.Crim.P. 11(a)(2). 
The parties agreed to the following rele-
vant facts, either in the Factual Proffer to 
Support the Guilty Plea or at the hearing 
on the motion to dismiss the indictment. 
From December 2004 until May 2005, a 
fourteen-year-old girl ("Jane Doe") worked 
for Evans as a prostitute in Miami—Dade 
County. Evans arranged "dates" for Jane 
Doe at local hotels, and Jane Doe gave the 
money she earned on these dates to Ev-
ans. To inform Jane Doe of dates that he 
had arranged, Evans called Jane Doe on a 
cellular telephone that she had acquired 
from him. Evans also gave Jane Doe's 
cellular telephone number to customers 
and told Jane Doe to arrange dates when 
customers called. During the dates, Ev-
ans called Jane Doe on the cellular tele-
phone to "check up on her." 
Govern-
ment's Sur—Reply to Motion to Dismiss at 
3. Evans supplied Jane Doe with condoms 
for use on the dates. The condoms were 
usually Lifestyle brand, which are manu-
factured overseas, imported into Georgia, 
and then distributed throughout the Unit-
ed States. In February 2005, Jane Doe 
was hospitalized for eleven days, during 
sitting by designation. 
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476 FEDERAL REPORTER, 3d SERIES 
which time she was diagnosed with AIDS. 
A few days after Jane Doe's release from 
the hospital, Evans called her on a land-
line telephone and induced her to resume 
her work as a prostitute for him. Jane 
Doe worked for Evans until May 2005, 
when she was again hospitalized for AIDS 
treatment 
The district court determined that Ev-
ans's conduct satisfied the "in or affecting 
interstate or foreign commerce" element of 
1591(a)(1) and the "using ... any facility 
or means of interstate or foreign com-
merce" element of § 2422(b). According-
ly, the district court denied Evans's motion 
to dismiss the indictment Evans appeals. 
II. 
IL 21 Generally, we review a district 
court's denial of a motion to dismiss an 
indictment for abuse of discretion. See 
United States v. Noriega, 117 FM 1206, 
1211 (11th Cir.1997), cat denied 523 U.S. 
1060, 118 S.Ct. 1389, 140 L.Ed.2d 648 
(1998). When the motion to dismiss the 
indictment challenges the court's subject 
matter jurisdiction, however, "we review 
de novo the district court's interpretation 
and application of the statutory provisions 
concerning the court's subject matter ju-
risdiction." United States v. McPhee, 336 
FM 1269, 1271 (11th Cir.2003): see also 
United Stales u Drury, 896 F.8d 1303, 
1312 (11th Cir.) (applying a de novo stan-
dard of review in determining whether the 
evidence was sufficient to satisfy the inter-
state-commerce element of 18 U.S.C. 
§ 1958(a)), telt denied — U.S. —, 126 
S.Ct 336 163 L.Ed2d 48 (2005). Whether 
a statute is unconstitutional as applied is 
also a question of law subject to de nerd 
review. United States v. Ballinger, 395 
F.3d 1218, 1225 (11th Cir.) (en bane), cert. 
denied, — U.S. -, 
126 S.Ct 368, 163 
L.Ed2d 77 (2006). 
A. 
I3) Count One of the indictment 
charged Evans with violating 18 U.S.C. 
§ 1591(aX1), which imposes punishment on 
anyone who "knowingly in or affecting in-
terstate or foreign commerce, ... recruits, 
entices, harbors, transports, provides, or 
obtains by any means a person ... know-
ing ... that the person has not attained 
the age of 18 years and will be caused to 
engage in a commercial sex act." 
18 
U.S.C. § 1591(a)(1) (emphasis added). 
Evans argues that because all of his con-
duct involving Jane Doe occurred solely 
within the state of Florida, it cannot sup-
ply the necessary factual predicate for the 
interstate-commerce 
element 
of 
§ 1591(aX1). We disagree. 
Pursuant to authority conveyed by the 
Commerce Clause of the United States 
Constitution, "Congress has the power to 
regulate activities that substantially affect 
interstate commerce." Gonzales v. Raich, 
545 U.S. 1, 17, 125 S.Ct. 2195, 162 L.Ed2d 
1 (2005). The Supreme Court has inter-
preted this power broadly to include the 
"power to regulate purely local activities 
that are part of an economic 'class of ac-
tivities' that have a substantial effect on 
interstate commerce." 
IS 
"(Wlhere 
Congress has attempted to regulate (or 
eliminate) an interstate market, Raich 
grants Congress substantial leeway to reg-
ulate purely intrastate activity (whether 
economic or not) that it deems to have the 
capability, in the aggregate, of frustrating 
the broader regulation of interstate eco-
nomic activity." United States v. Max-
well, 446 F.3d 1210, 1215 (11th Cir.), cert. 
denied, — U.S. -, 
127 S.Ct. 705, 166 
L.Ed.2d 545 (2006). Thus, in Raich, the 
Supreme Court upheld the application of 
the federal Controlled Substances Act 
("CSA") to the purely intrastate growth 
and use of marijuana for medical pur-
poses. 545 U.S. at 9, 125 S.Ct 2195. The 
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US.' EVANS 
cst as 476 rid 1176 (11thar. 2007) 
Court found that the CSA created a com-
prehensive framework for regulating con-
trolled substances and that Congress had 
a rational basis to conclude that intrastate 
conduct could substantially affect its abili-
ty to regulate interstate commerce. Id. at 
30, 32, 125 S.Ct. 2195. 
Applying Raich, our Court recently re-
jected arguments that purely intrastate 
conduct could not be prosecuted under the 
federal Child Pornography Prevention Act 
of 1996 ("CPPA"). First, in Maxwell, we 
held that 18 U.S.C. § 2252A(a)(5)(B) was 
not unconstitutional as applied to a defen-
dant's intrastate possession of child por-
nography, even though no evidence indi-
cated that the defendant's conduct was 
likely to impact interstate commerce. 446 
F.3d at 1217-19. We noted that the CPPA 
is part of a comprehensive regulatory 
scheme criminalizing, inter alia, the pro-
duction, possession, and sale of child por-
nography and that Congress could ration-
ally conclude that the cumulative effect of 
local possession of child pornography 
would substantially affect the interstate 
commerce that Congress was seeking to 
eliminate. Id at 1217-19. Similarly, in 
United States v. Smith, we rejected the 
argument that 18 U.S.C. § 2251(a) was 
unconstitutional as applied to the intra-
state production of child pornography. 
459 F.3d 1276, 1284-85 (11th Cir.2006), 
cert. denied, 75 U.S.L.W. 3352 (U.S. Jan. 8, 
2007) (No. 06-7780). We reasoned that 
§ 2251(a), like § 2252A(a)(5)(B), is part of 
a comprehensive regulatory scheme that 
could be frustrated by purely intrastate 
activity considered in the aggregate. hi. 
at 1285. 
We have no difficulty concluding that 
Raich, Maxwell, and Smith foreclose Ev-
ans's challenge to the constitutionality of 
§ 1591(a)(1) as applied to his activities oc-
I. Section 1591 does not criminalize all acts of 
prostitution (a vice traditionally governed by 
state regulation). Rather, its reach is limited 
1179 
curring solely within Florida. 
Section 
1591 was enacted as part of the Trafficking 
Victims Protection Act of 2000 ("TVPA"), 
Pub.L. No. 106-4386, 114 Stat. 1464 (codi-
fied as amended in scattered titles of 
U.S.C.). Like the CSA and the CPPA, the 
TVPA is part of a comprehensive regulato-
ry scheme. The TVPA criminalizes and 
attempts to prevent slavery, involuntary 
servitude, and human trafficking for com-
mercial gain.' Congress recognized that 
human trafficking, particularly of women 
and children in the sex industry, "is a 
modern form of slavery, and it is the larg-
est manifestation of slavery today." 
22 
U.S.C. § 7I01(b81); 
see also id at 
7101(b)(2), (4), (9), (11). Congress found 
that trafficking of persons has an aggre-
gate economic impact on interstate and 
foreign commerce, it § 7101(bX12), and 
we cannot say that this finding is irration-
al. 
141 Evans's enticement of Jane Doe to 
commit prostitution, even though his ac-
tions occurred solely in Florida, had the 
capacity when considered in the aggregate 
with similar conduct by others, to frustrate 
Congress's broader regulation of interstate 
and foreign economic activity. As noted 
by the district court, "While (Evans's] ac-
tivities may be minor in the national and 
international market of trafficking children 
for commercial sex acts, his acts contribute 
to the market that Congress'[sl compre-
hensive scheme seeks to stop." Order of 
Nov. 23, 2005, at 10. Evans's use of hotels 
that served interstate travelers and distri-
bution of condoms that traveled in inter-
state commerce are further evidence that 
Evans's conduct substantially affected in-
terstate commerce. See United Stales v. 
Pipkins, 378 F.3d 1281, 1295 (11th Cir. 
2004) (holding that evidence that "pimps 
to sex trafficking that involves children or is 
accomplished by force, fraud, or coercion. 
IS U.S.C. § 1591(a). 
EFTA00191966