United States v. Kenneth Mattix , 694 F.3d 1082 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 12-30013
Plaintiff-Appellee,
v.  D.C. No.
3:10-cr-00397-HA-1
KENNETH THEODORE MATTIX,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Argued and Submitted
July 13, 2012—Portland, Oregon
Filed September 17, 2012
Before: Betty B. Fletcher and Harry Pregerson,
Circuit Judges, and Consuelo B. Marshall, District Judge.*
Per Curiam Opinion
*The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for Central California, sitting by designation.
11333
11334 UNITED STATES v. MATTIX
COUNSEL
Thomas E. Price, Assistant Federal Public Defender, Portland,
Oregon, for appellant Kenneth Theodore Mattix.
UNITED STATES v. MATTIX 11335
Gary Y. Sussman, Assistant United States Attorney, Portland,
Oregon, for appellee United States of America.
OPINION
PER CURIAM:
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 out-
come of this case is controlled by United States v. Valverde,
628 F.3d 1159 (9th Cir. 2010).
I.
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 regis-
ter 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 retroac-
tively 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-
11336 UNITED STATES v. MATTIX
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 Feb-
ruary 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.1 Id. Because Mattix moved to Nevada and failed to reg-
ister after August 1, 2008, under Valverde his actions are cov-
ered by SORNA.
Nonetheless, Mattix moved to dismiss his indictment, argu-
ing 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 Attor-
ney 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.”
1
These guidelines were named the “SMART Guidelines” after the
Department of Justice Sex Offender Sentencing, Monitoring, Apprehend-
ing, Registering, and Tracking Office.
UNITED STATES v. MATTIX 11337
Mattix consented to a bench trial on stipulated facts, was
found guilty, and was sentenced to thirty months imprison-
ment.
Mattix timely appealed the district court’s decision denying
his motion to dismiss the indictment. We have jurisdiction
pursuant to 28 U.S.C. § 1291. Whether SORNA applies retro-
actively to Mattix is a question of statutory interpretation that
we review de novo. See United States v. Begay, 622 F.3d
1187, 1193 (9th Cir. 2010).
II.
[1] Mattix’s appeal depends entirely on whether his case is
controlled by our decision in Valverde. In Valverde, we
expressly concluded that SORNA “bec[a]me effective against
pre-enactment offenders . . . [on] August 1, 2008, thirty days
after publication of the final SMART guidelines along with
the Attorney General’s response to comments.” 628 F.3d at
1169. Mattix argues that this aspect of Valverde was incor-
rect, and that we need not adhere to it because it is dicta.
[2] Mattix’s argument is not persuasive, and we clarify
today that all of Valverde’s holding is binding law in our cir-
cuit. The Valverde panel framed the question before it as
“when SORNA became effective retroactively to sex offend-
ers convicted before the statute’s enactment.” Id. at 1161. The
court then considered “three instruments that might have been
employed to make SORNA effective retroactively”: the
interim rule issued by the Attorney General on February 28,
2007; the proposed SMART guidelines issued on May 30,
2007; and the final SMART guidelines issued on July 2, 2008
(which went into effect on August 1). Id. at 1164. After recog-
nizing that the circuits were split on the issue, the court deter-
mined that the February 2007 interim rule “failed to comply
with the APA’s notice and comment procedures.” Id. at 1168.
Noting that the government had conceded that the May 2007
preliminary SMART guidelines did not carry the force of law,
11338 UNITED STATES v. MATTIX
the court concluded that SORNA became retroactive on
August 1, 2008, the date the final SMART guidelines—which
“complied with the APA’s procedural requirements”—went
into effect. Id. at 1164, 1169. Because Valverde’s failure to
register occurred before August 1, 2008, the court affirmed
the dismissal of his indictment. Id. at 1169.
Mattix argues that because Valverde’s failure to register
occurred before August 1, 2008, the Valverde court should
have ended its inquiry once it determined that the February
2007 rule was invalid, and that it should not have reached the
question whether the August 1, 2008 SMART guidelines
made SORNA retroactive. Thus, because this part of the hold-
ing was unnecessary to the resolution of Valverde’s particular
case, Mattix argues that it is non-binding dicta. He also argues
that the Valverde court received insufficient briefing on the
question of whether the SMART guidelines actually complied
with the APA.
[3] These arguments are not persuasive. As discussed
above, the Valverde court made clear at several points in its
opinion that the issue before it was the broader question of
when SORNA became retroactive. It also made clear that the
issue had been sufficiently briefed:
The remaining question at issue is when SORNA
became effective retroactively to sex offenders con-
victed before the statute’s enactment. Having consid-
ered Valverde’s argument that SORNA’s
retroactivity provision did not become valid until the
APA’s notice and comment requirements were satis-
fied, as well as having reviewed the Government’s
brief on that question, and having heard oral argu-
ment on that point from both parties, we now hold
that the effective date of the retroactivity provision
is the date on which that provision fulfilled the
requirements of the APA.
UNITED STATES v. MATTIX 11339
Id. at 1161-62 (internal footnotes omitted). We will not
second-guess the panel’s reasoned evaluation of what was
properly before it. Furthermore, other Ninth Circuit panels
have relied on Valverde’s holding in subsequent published
decisions. See, e.g., United States v. George, 672 F.3d 1126,
1126 (9th Cir. 2012); United States v. Clements, 655 F.3d
1028, 1029 (9th Cir. 2011). We therefore conclude that Mat-
tix’s appeal is controlled by Valverde and that SORNA
applied retroactively to Mattix at the time he failed to register
as a sex offender.
III.
For the foregoing reasons, we AFFIRM the district court’s
denial of Mattix’s motion to dismiss the indictment and
AFFIRM Mattix’s conviction. The judgment of the district
court is AFFIRMED.