FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 12-30013 Plaintiff-Appellee,

D.C. No.

v.  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
COUNSEL

Thomas E. Price, Assistant Federal Public Defender, Portland,

Oregon, for appellant Kenneth Theodore Mattix.

11334 UNITED STATES v. MATTIX
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 outcome 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 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 sucUNITED STATES v. MATTIX 11335
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.1Id. 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.”

1These guidelines were named the “SMART Guidelines” after the

Department of Justice Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking Office. 

11336 UNITED STATES v. MATTIX
Mattix consented to a bench trial on stipulated facts, was

found guilty, and was sentenced to thirty months imprisonment. 

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 retroactively 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 incorrect, 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 circuit. The Valverde panel framed the question before it as

“when SORNA became effective retroactively to sex offenders 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 recognizing that the circuits were split on the issue, the court determined 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,

UNITED STATES v. MATTIX 11337
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 holding 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 convicted before the statute’s enactment. Having considered Valverde’s argument that SORNA’s

retroactivity provision did not become valid until the

APA’s notice and comment requirements were satisfied, as well as having reviewed the Government’s

brief on that question, and having heard oral argument 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.

11338 UNITED STATES v. MATTIX
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 Mattix’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.

UNITED STATES v. MATTIX 11339