United States v. Rudy Wahchumwah ( 2012 )

FILED
NOT FOR PUBLICATION MAR 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30476
Plaintiff - Appellee, D.C. No. 2:08-CR-02016-WFN-1
v.
ORDER *
RUDY LEE WAHCHUMWAH,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior District Judge, Presiding
Argued and Submitted October 14, 2009
Seattle, Washington
Before: CUDAHY **, RAWLINSON, and CALLAHAN, Circuit Judges.
Rudy Lee Wahchumwah was charged with, and convicted of, failing to
register as a sex offender under the Sex Offender Registration and Notification Act
(SORNA). After we affirmed his conviction in a memorandum disposition, see
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Richard D. Cudahy, Senior Circuit Judge for the
Seventh Circuit, sitting by designation.
United States v. Wahchumwah, 409 Fed. App’x 130, 132 (9th Cir. 2010),
Wahchumwah filed a petition for rehearing and a motion to dismiss the indictment.
The motion to dismiss was predicated on our opinion in United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010), in which we held that SORNA was not applicable
until August 1, 2008 for those individuals whose convictions predated the
enactment of SORNA. See id. at 1160.
Wahchumwah’s conviction for a sex offense predated the enactment of
SORNA and his failure to register occurred prior to August 1, 2008. Because
SORNA did not apply to Wahchumwah prior to August 1, 2008, his indictment for
a violation of SORNA’s registration requirements was invalid.
We hereby grant Wahchumwah’s motion to dismiss the indictment, vacate
our prior disposition, and remand this case to the district court for dismissal of the
indictment against Wahchumwah. This action renders the petition for rehearing
moot.
Appellant’s Motion to Dismiss Indictment for Lack of Subject Matter
Jurisdiction filed on January 4, 2011, is GRANTED. The prior disposition, filed
on December 8, 2010, is VACATED. This case is REMANDED to the district
court for Dismissal of the Indictment.
2 08-30476
The Petition of Appellant for Rehearing With Suggestion for Rehearing En
Banc, filed on December 16, 2010, is DENIED as moot.
3 08-30476