United States v. Reynolds

• Decision Date: 14 March 2013
• Docket Number: No. 08–4747.,08–4747.
• Citation: 710 F.3d 498
• Parties: UNITED STATES of America v. Billy Joe REYNOLDS, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

710 F.3d 498

UNITED STATES of America

v.Billy Joe REYNOLDS, Appellant.

No. 08–4747.

United States Court of Appeals,Third Circuit.

Argued Nov. 13, 2012 upon Remand from the Supreme Court of the United States.

Filed: March 14, 2013.

Donovan J. Cocas, argued, Robert L. Eberhardt, Laura S. Irwin, Office of United States Attorney, Pittsburgh, PA, for Appellee.

Candace Cain, Lisa B. Freeland, argued, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Before: SMITH, FISHER, and STAPLETON, Circuit Judges.

OPINION

SMITH, Circuit Judge.

This case returns to us after the Supreme Court's review in Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). Remand requires that we reach the merits of Reynolds's claim that the regulatory rule upon which his indictment was based was promulgated in violation of the Administrative Procedure Act (“APA”). This claim gives rise to three questions: (1) What is the appropriate standard of review of an agency's assertion of good cause in waiving the APA's notice and comment requirements? (2) Did the Attorney General have good cause to waive these requirements in promulgating a rule governing the retroactivity of the Sex Offender and Registration Notification Act's (“SORNA”) registration requirements? (3) If the Attorney General lacked good cause to waive the requirements, was Reynolds prejudiced by the failure to comply with the APA's notice and comment requirements?

The courts of appeals are divided on each of these questions. On the first question, the Fifth and Eleventh Circuits have determined that the arbitrary and capricious standard is the appropriate standard for reviewing the Attorney General's actions, the Fourth and Sixth Circuits have not stated a standard but appear to use de novo review, and the Ninth Circuit has explicitly avoided the question.¹ On the second question, the Fourth and Eleventh Circuits have held that the Attorney General had good cause to waive notice and comment, while the Fifth, Sixth, and Ninth Circuits have held that he did not.² On the final question, the Fifth Circuit has held that the Attorney General's lack of good cause does not prejudice defendants, while the Sixth Circuit has held that it is prejudicial.³

We conclude that we need not decide the appropriate standard of review today becausethe Attorney General's assertion of good cause cannot withstand review even under the most deferential standard available. We also conclude that the Attorney General's lack of good cause is prejudicial to Reynolds. Accordingly, we will vacate Reynolds' conviction.

I

In 2001, Reynolds was convicted of sexually assaulting a seven-year-old girl in Missouri. This conviction required him to register as a sex offender, which he did for the next six years. Meanwhile, Congress passed SORNA in 2006, which required individuals convicted of sex offenses after its enactment to comply with certain registration requirements. Through the promulgation of an administrative rule on February 28, 2007, the Attorney General made SORNA's registration requirements retroactive to those convicted of sex offenses before its enactment—i.e., sexual offenders such as Reynolds.

On September 16, 2007, Reynolds moved to Washington, Pennsylvania. He failed both to update his place of residence and employment information in Missouri and to register as a sex offender in Pennsylvania. Police discovered these registration violations on October 16, 2007, when Reynolds was arrested for violating parole. He was subsequently indicted for violating SORNA's registration requirements because of his failure to register between September 16, 2007 and October 16, 2007. He pleaded guilty, reserving his right to appeal. He was sentenced to eighteen months of imprisonment to be followed by three years of supervised release.

A. Procedural History

Reynolds's primary challenge to his conviction has been to its legal basis. In the District Court, he moved to dismiss the indictment, arguing that SORNA violated the nondelegation doctrine, the Commerce Clause, the Ex Post Facto Clause, the Tenth Amendment, and his Fifth Amendment substantive and procedural due process rights. Finally, he argued that even if SORNA did not violate the Constitution, his indictment should be dismissed because it was based on an administrative rule promulgated by the Attorney General that did not comply with the requirements of the APA. The District Court rejected each of these arguments and denied his motion to dismiss the indictment. Reynolds subsequently entered into a plea agreement that specifically reserved his right to appeal those issues argued in his motion to dismiss the indictment.

In his first appeal to this Court following his guilty plea, Reynolds presented these same arguments. Bound by United States v. Shenandoah, 595 F.3d 151 (3d Cir.2010),⁴ we upheld the District Court becausethe Commerce Clause, Ex Post Facto, and Fifth Amendment arguments lacked merit and because Reynolds lacked standing to assert his APA, nondelegation, and Tenth Amendment arguments. United States v. Reynolds, 380 Fed.Appx. 125, 126 (3d Cir.2010); see also Shenandoah, 595 F.3d at 158–64. Reynolds filed a petition for writ of certiorari with the Supreme Court that requested review of these holdings. Pet. Writ Cert. at i, Reynolds v. United States (No. 10–6549), 2010 WL 5624498. The Supreme Court granted the petition limited to the question of whether Reynolds had standing to assert his APA and nondelegation arguments. Reynolds v. United States, ––– U.S. ––––, 131 S.Ct. 1043, 178 L.Ed.2d 862 (2011). The Court reversed, holding that he did have standing to make those arguments. Reynolds v. United States, ––– U.S. ––––, 132 S.Ct. 975, 978, 181 L.Ed.2d 935 (2012).

In reversing, the Supreme Court rejected this Court's interpretation in Shenandoah of the power delegated to the Attorney General by SORNA's registration requirement. 42 U.S.C. § 16913(d) (“The Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter ..., and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).”); 42 U.S.C. § 16913(b) (providing when sex offenders other than those who had already completed their sentences should initially register).⁵ In Shenandoah, this Court concluded that this provision automatically made SORNA's registration requirements applicable without any action by the Attorney General to sex offenders who had been convicted before SORNA was enacted and who had already completed their prison sentences. 595 F.3d at 158. This meant that Reynolds's obligation to register under SORNA was derived from the Act itself and not from the administrative rule promulgated by the Attorney General. Accordingly, Shenandoah required us to conclude that he could not challenge the legality of the administrative rule because the statute, not the rule, was the basis of his conviction. Reynolds, 380 Fed.Appx. at 126;Shenandoah, 595 F.3d at 163–64.

The Supreme Court interpreted § 16913 otherwise. The Court held that the registration requirement did not automatically apply retroactively to sex offenders who committed their offense before SORNA was enacted. Instead, the Court explained that under § 16913, “the Act's registration requirements do not apply to pre-Act offenders until the Attorney General specifies that they do apply.” Reynolds, 132 S.Ct. at 978. This means, contrary to this Court's previous holding, that Reynolds's obligation to register under SORNA does not derive from the Act itself but from the administrative rule promulgated by the Attorney General. We must now reach the merits of the claim Reynolds raises challenging the legality of that rule. Reynolds, 132 S.Ct. at 984 (“Whether the Attorney General's Interim Rule sets forth a valid specification consequently matters in the case before us.”). ⁶

B. Administrative History

At issue here is the Attorney General's February 28, 2007 Interim Rule that made SORNA's registration requirements retroactive for all pre-SORNA offenders. Applicability of the Sex Offender Registration and Notification Act, 72 Fed.Reg. 8894–01, 8897 (Feb. 28, 2007) [hereinafter “Interim Rule”]. The Attorney General issued this Interim Rule seven months after SORNA delegated authority to him to make SORNA retroactive. The Attorney General did not provide the period for notice and comment required under 5 U.S.C. § 553(b), nor did he provide the minimum thirty-day delay before the rule became effective under 5 U.S.C. § 553(d)(3). Instead, he concluded that notice and comment were not required because “good cause” existed pursuant to 5 U.S.C. § 553(b)(B) and that requiring those procedures would be “contrary to the public interest.” Interim Rule, 72 Fed.Reg. at 8896–97 (citing 5 U.S.C. § 553(b)(B)). He provided the following reasons to support his finding of good cause:

The immediate effectiveness of this rule is necessary to eliminate any possible uncertainty about the applicability of the Act's requirements—and related means of enforcement, including criminal liability under 18 U.S.C. 2250 for sex offenders who knowingly fail to register as required—to sex offenders whose predicate convictions predate the enactment of SORNA. Delay in the implementation of this rule would impede the effective registration of such sex offenders and would impair immediate efforts to protect the public from sex offenders who fail to register through prosecution and the imposition of criminal sanctions. The resulting practical dangers include the commission of additional sexual assaults and child sexual abuse or exploitation offenses by sex offenders that could have been prevented had local authorities and the community been aware of their presence, in addition to greater difficulty in apprehending perpetrators...