FILED
NOT FOR PUBLICATION MAR 20 2012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. 09-30042
)
Plaintiff – Appellee, ) ORDER *
)
v. ) D.C. No. 2:08-CR-06023-RHW-1
)
JOE LUIS REYES, JR., )
)
Defendant – Appellant. )
)
Appeal from the United States District Court
for the Eastern District of Washington
Robert H. Whaley, Senior District Judge, Presiding
Argued and Submitted November 2, 2009
Seattle, Washington
Before: ALARCÓN, FERNANDEZ, and CLIFTON, Circuit Judges.
Joe Reyes, Jr., was convicted and sentenced for failing on January 8, 2008,
to register as a sex offender pursuant to the requirements of the Sex Offender
Registration and Notification Act (SORNA). See 18 U.S.C. § 2250; see also 42
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 16913. On November 24, 2009, we affirmed his conviction and sentence
in a memorandum disposition. Our disposition relied upon our prior opinion in
United States v. George, 579 F.3d 962 (9th Cir. 2009), which was amended
thereafter by United States v. George, 625 F.3d 1124 (9th Cir. 2010).
Reyes filed a petition for rehearing and for rehearing en banc on December
3, 2009, and later filed a motion to dismiss for lack of subject matter jurisdiction.
We stayed further action pending final resolution of the issues in George. George
has now been vacated and we have ordered that the indictment in that case be
dismissed. See United States v. George, No. 08-30339, slip op. 2593 (9th Cir.
Mar. 7, 2012). As we then explained:
The motion to dismiss was based on our opinion in
United States v. Valverde, 628 F.3d 1159 (9th Cir. 2010),
in which we held that the Attorney General’s February
28, 2007 interim rule applying SORNA to sex offenders
who were convicted before SORNA’s enactment was
invalid and that SORNA did not become applicable to
such individuals until August 1, 2008. Id. at 1160. The
motion to dismiss was held in abeyance pending the
Government’s petition for a writ of certiorari from
Valverde.
The Supreme Court has now denied the
Government’s petition from Valverde. Accordingly, as
George was charged with violating SORNA . . . at a time
when we had determined SORNA was not applicable to
persons such as George, his motion to dismiss must be
granted.
2
Id. at 2593–94.
Of course, our disposition in this case can no longer rely upon George.
More than that, what we said in George applies equally here because Reyes was
also charged with violating SORNA at a time when it did not apply to him.
Therefore, we vacate our prior memorandum disposition and the judgment,
grant the motion to dismiss, and remand to the district court with directions to
dismiss the indictment. The petition for rehearing and for rehearing en banc is now
moot.
REMANDED.
3