FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10034

Plaintiff-Appellee, D.C. No.

v.  4:08-cr-00303-DCBCRP-1 CHRISTOPHER MATTHEW CLEMENTS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Submission Deferred November 30, 2009

Resubmitted August 11, 2011*

San Francisco, California

Filed August 22, 2011

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson, and

Carlos T. Bea, Circuit Judges.

Per Curiam Opinion;

Dissent by Judge O’Scannlain

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). Appellant’s motion

for oral argument is denied. This case is resubmitted as of August 11,

2011. Appellee’s motion to stay this case pending a decision in Reynolds

v. United States, 131 S. Ct. 1043 (2011) is denied. 

11369
COUNSEL

Shelley Kay-Glenn Clemens, Esq., Assistant U.S. Attorney,

OFFICE OF THE U.S. ATTORNEY, Tucson, Arizona, for

the plaintiff-appellee.

11370 UNITED STATES v. CLEMENTS
John D. Kaufmann, Esq., Tucson, Arizona, for the defendantappellant.

OPINION

PER CURIAM:

Christopher Matthew Clements appeals his conviction for

failing to register as a sex offender. 18 U.S.C. § 2250. On July

27, 2006, Congress enacted the Adam Walsh Child Protection

and Safety Act of 2006. Pub. L. No. 109-248, §§ 1-155, 120

Stat. 587, 590-611 (2006). Title I of the Adam Walsh Act

established the Sex Offender Registration and Notification

Act (“SORNA”). 42 U.S.C. §§ 16911, 16913. SORNA basically requires that sex offenders register their whereabouts

within three business days after their release from imprisonment, and keep their registrations current by updating their

registrations within three business days of moving to a new

residence, gaining new employment, or entering a new

school. Id. Failure to register pursuant to SORNA, or to keep

one’s registration current, is a continuing offense. See United

States v. George, 625 F.3d 1124, 1131 (9th Cir. 2010).

The criminal penalties for failing to register pursuant to

SORNA in 18 U.S.C. § 2250(a) do “not apply to sex offenders whose interstate travel occurred prior to SORNA’s effective date.” United States v. Begay, 622 F.3d 1187, 1195 (9th

Cir. 2010) (citation omitted).

Clements was convicted of two counts of unlawful sexual

penetration with a foreign object, in violation of Oregon

Revised Statute § 163.411, in Oregon state court on June 3,

1998. SORNA was not enacted until July 27, 2006. On February 28, 2007, the Attorney General promulgated an interim

regulation that applied the registration requirements of

SORNA to defendants convicted of certain sexual offenses

UNITED STATES v. CLEMENTS 11371
prior to the enactment of SORNA, thus making SORNA

retroactive. 72 Fed. Reg. 8894. The superseding indictment

charged that Clements failed to comply with the requirements

of SORNA on or about February 15, 2008, when he “knowingly failed to register and update a registration” as a sex

offender within three business days of relocating and traveling

in interstate commerce to Arizona on or about October 5,

2007. Clements challenges the legality of the Attorney General’s interim regulation for failure to comply with the Administrative Procedure Act (the “APA”).

[1] In United States v. Valverde, 628 F.3d 1159, 1168-69

(9th Cir. 2010), we held that for persons such as Clements,

who were convicted of sex offenses prior to SORNA’s enactment, SORNA’s registration requirements did not become

effective until August 1, 2008,1 because the Attorney General’s interim regulation did not comply with the APA. 

[2] Accordingly, we reverse and remand this case for dismissal of the indictment. Upon his release from imprisonment, Clements will be subject to the provisions of SORNA

and will then need to register. In light of our disposition, we

need not reach Clements’s other challenges to his conviction.

REVERSED AND REMANDED.

1August 1, 2008 is thirty days after the Attorney General published

guidelines that accorded with the APA’s requirements and announced

SORNA’s retroactive applicability. Valverde, at 1167; see 5 U.S.C. § 553;

Office of the Attorney General, The National Guidelines for Sex Offender

Registration and Notification, 73 Fed. Reg. 38,030, 38,046-47 (July 2,

2008). 

11372 UNITED STATES v. CLEMENTS
O’SCANNLAIN, Circuit Judge, dissenting:

This Court has previously held that the Sex Offender Registration and Notification Act (“SORNA”) does not apply to

sex offenders convicted pre-SORNA unless and until the

Attorney General (“AG”) promulgates an administrative rule

saying that it does. See United States v. Valverde, 628 F.3d

1159, 1168-69 (9th Cir. 2010). We also held that the AG’s

attempt to promulgate such a rule (the “Interim Rule”) was

void because there was not “good cause” to issue it without

first complying with the “notice and comment” requirements

of the Administrative Procedure Act (“APA”). See id. Instead,

we determined that SORNA did not become effective for preSORNA offenders until the AG promulgated a final regulation to that effect. See id.

We are bound by these rulings and I have concurred in the

Court’s disposition to that effect. But it now appears that the

Supreme Court has granted certiorari in a nearly identical case

out of the Third Circuit, see Reynolds v. United States, 131 S.

Ct. 1043 (2011), and the United States has asked us to stay the

instant appeal until the Supreme Court has rendered its decision. Because the Supreme Court will definitively decide this

question, I respectfully dissent from the majority’s decision to

deny the government’s motion. See Landis v. N. Am. Co., 299

U.S. 248, 254-55 (1936) (recognizing a court’s inherent

power to stay proceedings pending a decision by the Supreme

Court in another case).

I

I am particularly inclined to grant a stay because I believe

the Supreme Court’s decision in Reynolds may well impact

our decision in Valverde. In Reynolds, the Court will resolve

a deep circuit split as to whether SORNA applies, on its own

force, to defendants, like Clements, who were registered sex

offenders in one state before Congress enacted SORNA,

moved to another state after Congress enacted SORNA, failed

UNITED STATES v. CLEMENTS 11373
to update their registration, and were indicted before the AG’s

final regulation on retroactivity took effect. If SORNA does

so apply, then the Interim Rule would be superfluous, and any

procedural error in its promulgation would be irrelevant to

this case.

II

The relevant portion of SORNA provides:

(a) In general

A sex offender shall register, and keep the registration current, in each jurisdiction where the offender

resides, where the offender is an employee, and

where the offender is a student. For initial registration purposes only, a sex offender shall also register

in the jurisdiction in which convicted if such jurisdiction is different from the jurisdiction of residence.

(b) Initial registration

The sex offender shall initially register—

(1) before completing a sentence of imprisonment

with respect to the offense giving rise to the registration requirement; or 

(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to a term of imprisonment. 

(c) Keeping the registration current

A sex offender shall, not later than 3 business days

after each change of name, residence, employment,

or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a) of this

11374 UNITED STATES v. CLEMENTS
section and inform that jurisdiction of all changes in

the information required for that offender in the sex

offender registry. That jurisdiction shall immediately

provide that information to all other jurisdictions in

which the offender is required to register.

(d) Initial registration of sex offenders unable to

comply with subsection (b) of this section

The Attorney General shall have the authority to

specify the applicability of the requirements of this

subchapter to sex offenders convicted before the

enactment of this chapter or its implementation in a

particular jurisdiction, and to prescribe rules for the

registration of any such sex offenders and for other

categories of sex offenders who are unable to comply with subsection (b) of this section.

42 U.S.C. § 16913. 

The courts of appeals which have required AG action

before applying SORNA retroactively have focused on subsection (d). They correctly read that provision as giving the

AG authority to specify whether and to what extent SORNA

applies to any and all sex offenders who were convicted preSORNA.

A

But just because the AG has “the authority” to issue rules

regarding SORNA’s retroactive applicability does not mean

that he is required to exercise it. By phrasing the AG’s power

over retroactivity in permissive rather than mandatory terms,

SORNA contemplated a regime without AG guidance. Within

that regime, retroactive applicability could be determined only

by subsection (a)’s clear command that “[a] sex offender shall

register, and keep the registration current, in each jurisdiction

where the offender resides.” This clause makes no exceptions

UNITED STATES v. CLEMENTS 11375
for sex offenders who have already been convicted. Instead,

SORNA specifically defines “sex offender” as “an individual

who was convicted of a sex offense.” Id. § 16911(1) (emphasis added); see also Carr v. United States, 130 S. Ct. 2229,

2236 (2010) (noting that the Supreme Court “ha[s] frequently

looked to Congress’ choice of verb tense to ascertain a statute’s temporal reach”).

Structure confirms text. Subsection (a) states the two main

requirements SORNA imposes on sex offenders: they must

register and they must keep that registration current. Subsections (b) and (c) provide deadlines for meeting those obligations. It would be anomalous for subsection (d) then to negate

subsection (a) by creating an exception so large that it swallows its rule. 

B

Finally, reading subsection (d) as exempting pre-SORNA

convicted sex offenders from SORNA’s registration requirements would undermine Congress’s stated purpose of “establish[ing] a comprehensive national system for the registration

of [sex] offenders.” 42 U.S.C. § 16901. As Judge Gorsuch put

it, a sex offender registry that excluded all then-existing sex

offenders would hardly be “comprehensive,” “unless Congress’s purpose was to create a comprehensive registration

regime for 22nd century sex offenders.” United States v.

Hinckley, 550 F.3d 926, 945 (10th Cir. 2008) (Gorsuch, J.,

concurring). 

Accordingly, it appears that subsection (a) requires all sex

offenders to register and to keep their registration current, and

subsection (d) merely grants the AG the authority to make

exceptions for previously convicted sex offenders if he so

chooses. Thus, even if the Interim Rule were invalid for failure to comply with the APA’s notice and comment procedures, such fact does not help Clements because it served only

11376 UNITED STATES v. CLEMENTS
to make indisputably clear what was already established by

the text.

III

Our decision in Valverde focused almost entirely on

whether the Interim Rule was valid, and did not explicitly

consider the argument that SORNA applies retroactively even

without administrative action. The Supreme Court will decide

the latter question in Reynolds. Because it may possibly do so

in a way that conflicts with our assumption in Valverde, I

would wait for the Supreme Court’s guidance. Therefore, I

respectfully dissent from our order denying the government’s

motion to stay consideration of this appeal.

UNITED STATES v. CLEMENTS 11377