Submitted April 16, 2014.
Appeal from United States District Court for the Western District of Arkansas - Hot Springs.
For United States of America, Plaintiff - Appellee: Kenneth P. Elser, Assistant U.S. Attorney, Katrina E. Spencer, Assistant U.S. Attorney, Candace L. Taylor, Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Arkansas, Fort Smith, AR.
Kevin Lamont Brewer, Defendant - Appellant, Pro se, Texarkana, TX.
For Kevin Lamont Brewer, Defendant - Appellant: James Pierce, Assistant Federal Public Defender, Federal Public Defender's Office, Fort Smith, AR.
Before WOLLMAN, BYE, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Kevin Brewer was convicted of failing to register as a sex offender under 18 U.S.C. § 2250(a) and sentenced to 18 months in prison and 15 years of supervised release. Brewer moved to vacate his conviction under 28 U.S.C. § 2255. The district court denied the motion. Brewer then moved to reconsider and requested a certificate of appealability. The district court denied Brewer's motion to reconsider but granted Brewer a certificate of appealability on two issues. Having jurisdiction under 28 U.S.C. § 1291, we reverse and remand for further proceedings.
In 2006, Congress enacted the Sex Offender and Registration Notification Act
(" SORNA" ), which established a national registration system for persons convicted of sex offenses under state and federal laws. 42 U.S.C. § § 16901-16991. SORNA " requires those convicted of certain sex crimes to provide state governments with (and to update) information, such as names and current addresses, for inclusion on state and federal sex offender registries." Reynolds v. United States, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012). Specifically, under SORNA, a person is criminally liable for failure to register if he (1) is required to register under SORNA; (2) is a sex offender by reason of a federal conviction or, alternatively, is a person who " travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country" ; and (3) " knowingly fails to register or update a registration as required" by SORNA. 18 U.S.C. § 2250(a).
SORNA's registration requirements were not immediately applicable to persons who, like Brewer, were convicted of a sex offense prior to the enactment of SORNA. Reynolds, 132 S.Ct. at 978. SORNA mandated that the registration requirements would not apply to " pre-Act offenders until the Attorney General specifies that they do apply." Id.; see also 42 U.S.C. § 16913(d) (granting the Attorney General rule-making authority regarding applicability). On February 28, 2007, the Attorney General promulgated an Interim Rule that made registration requirements applicable to all pre-Act offenders. See 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007). The Attorney General did not establish a period for pre-promulgation notice and comment and bypassed the 30-day publication requirement because, he asserted, there was " good cause" to waive those requirements. See 72 Fed. Reg. 8894, 8896-97. Three months later the Attorney General published the proposed " SMART" Guidelines to " interpret and implement SORNA." 72 Fed. Reg. 30,210 (May 30, 2007); see United States v. Knutson, 680 F.3d 1021, 1023 (8th Cir. 2012). The " SMART" Guidelines became effective on August 1, 2008, and " reaffirmed the interim rule applying SORNA to pre-Act offenders."
Knutson, 680 F.3d at 1023; see 73 Fed. Reg. 38,030 (July 2, 2008). Though the Attorney General maintained that SORNA had been effective to all pre-Act offenders all along, the Supreme Court in Reynolds rejected that position and held that SORNA's registration requirements did not apply to pre-Act offenders until the Attorney General issued a rule saying so.
See Reynolds, 132 S.Ct. at 984.
Brewer currently is required to register under SORNA because of a 1997 conviction for a sex offense in Hawaii. At the time of SORNA's enactment, Brewer was living in South Africa. In December 2007, he moved back to the United States and settled in Arkansas, but he did not register as a sex offender. He was arrested in March 2009 and pleaded guilty in September 2009.
Following his release from prison, Brewer moved to vacate his sentence under 28 U.S.C. § 2255. As relevant to this appeal, Brewer argued that (1) the Attorney General lacked " good cause" and thereby violated the Administrative Procedures Act (APA) when he promulgated and made effective the Interim Rule without allowing for the required public notice-and-comment period and minimum 30-day publication period, and (2) SORNA violates the nondelegation doctrine by providing the Attorney General with the authority to
determine when, and if, SORNA will apply to pre-SORNA offenders. The district court adopted the magistrate judge's report and denied Brewer's motion to vacate on all grounds. Brewer then moved for reconsideration and asked the district court for a certificate of appealability. The district court declined to ...