Appeal from the United States District Court for the District of Oregon Ancer L. Haggerty, Senior District Judge, Presiding D.C. No. 3:10-cr-00397-HA-1
Argued and Submitted July 13, 2012-Portland, Oregon
Before: Betty B. Fletcher and Harry Pregerson, Circuit Judges, and Consuelo B. Marshall, District Judge.*fn1
Kenneth Theodore Mattix appeals his conviction for failure to register as a sex offender in violation of 18 U.S.C. § 2250(a). We affirm the conviction and clarify that the outcome of this case is controlled by United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010).
In 1992 Mattix was convicted of first degree sodomy, first degree attempted rape, first degree sexual abuse, and first degree attempted sexual abuse. Because of these convictions, Mattix was required to register as a sex offender. In 2010, Mattix moved from Oregon to Nevada but failed to either update his Oregon registration or register in Nevada. He was arrested in September 2010 and charged with failing to register as a sex offender under 18 U.S.C. § 2250(a).
Section 2250(a) is part of the Sex Offender Registration and Notification Act (SORNA), which, among other things, imposes federal criminal penalties on sex offenders who knowingly fail to register or update their registrations. See 18 U.S.C. § 2250; 42 U.S.C. § 16913. Congress enacted SORNA in 2006 but delegated to the Attorney General the authority to determine whether and when SORNA should apply retroactively to sex offenders convicted before SORNA's effective date. See 42 U.S.C. § 16913(d); Reynolds v. United States, 132 S. Ct. 975 (2012). The Attorney General has exercised this authority and made SORNA retroactive, but the circuits have split over which action by the Attorney General was suc- cessful in making the statute retroactive. Compare United States v. Dean, 604 F.3d 1275 (11th Cir. 2010) (holding that SORNA was made retroactive by the Attorney General's February 28, 2007 interim rule), and United States v. Gould, 568 F.3d 459 (4th Cir. 2009) (same), with United States v. Utesch, 596 F.3d 302 (6th Cir. 2010) (holding that the February 28, 2007 interim rule was invalid because it failed to comply with the Administrative Procedure Act).
In December 2010, we joined the Sixth Circuit and held in United States v. Valverde that the February 28, 2007 interim rule failed to comply with the Administrative Procedure Act and thus failed to make SORNA retroactive. 628 F.3d 1159 (9th Cir. 2010), cert. denied, 132 S. Ct. 1534 (2012). Our opinion in Valverde also held that SORNA became retroactive on August 1, 2008, when the Attorney General's "SMART" Guidelines interpreting and implementing SORNA became final.*fn2 Id. Because Mattix moved to Nevada and failed to register after August 1, 2008, under Valverde his actions are covered by SORNA.
Nonetheless, Mattix moved to dismiss his indictment, arguing that the language in Valverde concluding that SORNA became retroactive on August 1, 2008 was dicta, and that SORNA did not actually become retroactive until the Attorney General finalized the February 28, 2007 interim rule "to eliminate any possible uncertainty or dispute concerning the scope of SORNA's application." 75 Fed Reg. 81849, 81850 (Dec. 29, 2010). This final rule went into effect on January 28, 2011 (after Mattix's failure to register). The district court denied Mattix's motion to dismiss the indictment, concluding that under Valverde, "SORNA'S registration requirements became effective on August 1, 2008 for persons who were convicted of sex offenses prior to SORNA'S enactment."
Mattix consented to a bench trial on stipulated facts, was found guilty, and was sentenced to ...