United States v. George
| Decision Date | 07 March 2012 |
| Docket Number | No. 08–30339.,08–30339. |
| Citation | 672 F.3d 1126,12 Cal. Daily Op. Serv. 2765,2012 Daily Journal D.A.R. 3111 |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Phillip Williams GEORGE, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Alexander C. Ekstrom, Assistant U.S., USYA—Office of the U.S. Attorney, Yakima, WA, for Plaintiff–Appellee.
Rebecca Louise Pennell, Esquire, Assistant Federal Public Defender, FDWAID—Federal Defenders of Eastern Washington & Idaho, Yakima, WA, for Defendant–Appellant.
D.C. No. 2:07–CR–02119–WFN–1, Eastern District of Washington, Spokane.Before: WILLIAM C. CANBY, JR., JAY S. BYBEE, and CONSUELO M. CALLAHAN, Circuit Judges.
Phillip Williams George was charged with, and convicted of, failing on September 27, 2007 to register as required under the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250 (“SORNA”). The grand jury charged that George had been convicted in 2003 of sexual abuse of a minor on an Indian Reservation in violation of 18 U.S.C. §§ 2243(A) and 1153, and had subsequently traveled in interstate commerce and failed to register as required by SORNA. We affirmed his conviction. United States v. George, 625 F.3d 1124 (9th Cir.2010).
Thereafter, George filed a petition for rehearing en banc and a motion to dismiss the indictment. 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 on September 27, 2007, at a time when we have determined SORNA was not applicable to persons such as George, his motion to dismiss must be granted.
We hereby grant the motion to dismiss, vacate our prior opinion, and remand this matter to the district court with directions to dismiss the indictment against George. This action renders the petition for rehearing en banc moot.
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... ... Cabrera filed a motion to dismiss the indictment, arguing that Congress lacked authority to require him to register as a sex offender. The district court denied the motion, noting that although United States v. George, 625 F.3d 1124 (9th Cir.2010), had been vacated, 672 F.3d 1126 (9th Cir.2012), “the Court finds the reasoning in George persuasive and notes that the opinion was vacated on different grounds.” Thereafter, Cabrera entered a conditional plea of guilty, preserving his right to appeal the denial ... ...
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