United States v. Brewer, No. 13-1261 (8th Cir. 2014)
Annotate this CaseDefendant appealed his conviction for failing to register as a sex offender under 18 U.S.C. 2250(a). In 2006, Congress enacted the Sex Offender Registration Notification Act (SORNA), 42 U.S.C. 16901-16991. In 2007, the Attorney General promulgated an Interim Rule that made registration requirements applicable to all pre-Act offenders without establishing a period for pre-promulgation notice and comment and bypassed the 30-day publication requirement. Defendant argued that the Attorney General lacked good cause and thereby violated the Administrative Procedures Act (APA), 5 U.S.C. 551 et seq. The court joined the Third, Fifth, Sixth, and Ninth Circuits and found that the Attorney General's stated reasons for finding good cause to bypass the 30-day advance-publication and notice-and-comment requirements were insufficient. Because the Attorney General lacked good cause to waive the procedural requirements of notice and comment when promulgating the Interim Rule, and this procedural error prejudiced defendant, SORNA did not apply to defendant in 2007. Therefore, his conviction for failing to register is invalid. The court did not address defendant's remaining argument that SORNA violates the nondelegation doctrine. The court reversed and remanded for the district court to vacate the conviction.
Court Description: Prisoner case - habeas. The court joins the Third, Fifth, Sixth and Ninth circuits in holding the Attorney General lacked good cause for waiving the procedural requirements for rulemaking and thereby violated the Administrative Procedures Act when he promulgated and made effective the Interim Rule applying SORNA to offenders convicted before the passage of the Act without allowing for the required public notice-and-comment period and minimum 30-day publication period; since defendant was convicted of violating SORNA under the Interim Rule, his conviction is invalid and must be vacated.
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