                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1261
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Kevin Lamont Brewer

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Hot Springs
                                 ____________

                             Submitted: April 16, 2014
                             Filed: September 10, 2014
                                  ____________

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.

                                   I. Background

       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 (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

                                         -2-
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).1 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


      1
        Subsequently, the Attorney General has issued a “Final rule,” which mirrors
the language of the Interim Rule. 75 Fed. Reg. 81,849 (Dec. 29, 2010);
see also Knutson, 680 F.3d at 1023.

                                         -3-
district court declined to reconsider its earlier ruling but certified for appeal the two
issues stated above.

                                    II. Discussion

      We review de novo the district court’s denial of a motion under section 2255.
United States v. Hernandez, 436 F.3d 851, 855 (8th Cir. 2006). Any underlying
factual findings are reviewed for clear error. Id.

       On appeal Brewer maintains that the Attorney General’s Interim Rule is invalid
and, therefore, his conviction is illegal. Brewer presses the same grounds for vacating
his conviction that he argued in the district court: (1) the “Interim Rule violated the
[APA] because Appellant was prejudiced by the Attorney General’s failure to comply
with the required procedures for substantive rulemaking and failure to provide
sufficient good cause for avoiding those procedures”;2 and (2) “[c]ontrary to Circuit
precedent, [SORNA] violates nondelegation doctrine with regards to state sex
offenders whose prior conviction pre-dates the enactment or implementation of the
Act.” We address each of his arguments in turn.




      2
        The government asserted in the district court that Brewer had procedurally
defaulted this argument by failing to raise it on direct appeal. The magistrate judge
did not consider the issue defaulted and recommended addressing the merits of
Brewer’s argument. The government did not object to the magistrate judge’s
recommendation, did not cross-appeal the district court’s order adopting the
magistrate judge’s report, and does not maintain on appeal that Brewer’s APA
argument is defaulted. Thus, we believe the government has waived procedural
default as an affirmative defense and will not further address the issue. See Jones v.
Norman, 633 F.3d 661, 666 (8th Cir. 2011).

                                          -4-
                                    A. Good Cause3

        As a state-law sex offender, Brewer is guilty of failing to register under
SORNA if he “travels in interstate or foreign commerce” while knowingly failing to
register or update his registration. 18 U.S.C. § 2250(a)(2)(B). Brewer suggests,
however, that SORNA was not yet effective as to him when he traveled from Africa
to Arkansas in December 2007 because, he argues, the Interim Rule, which for the
first time made SORNA applicable to sex offenders convicted before the Act’s
enactment, is invalid. Because the “final rule” did not become effective until August
2008, Brewer cannot be guilty under that rule for his December 2007 move. Thus,
if the Interim Rule is invalid, then Brewer’s conviction also is invalid.

       Brewer asserts that the Interim Rule is invalid because the Attorney General
failed to comply with the APA rulemaking procedures without good cause. We
review de novo whether an agency has complied with the APA’s procedural
requirements because compliance “is not a matter that Congress has committed to the
agency’s discretion.” Iowa League of Cities v. EPA, 711 F.3d 844, 872 (8th Cir.
2013). “Agencies must conduct ‘rule making’ in accord with the APA’s notice and
comment procedures.” Id. at 855 (citing 5 U.S.C. § 553(b), (c)). “The APA’s
rulemaking provisions require three steps to enact substantive rules: notice of the
proposed rule, a hearing or receipt and consideration of public comments, and the
publication of the new rule.” United States v. DeLeon, 330 F.3d 1033, 1036 (8th Cir.


      3
        Brewer argues on appeal not only that the Attorney General lacked good
cause but also that the issue of good cause is foreclosed on appeal because the
government failed to object to the magistrate judge’s report and recommendation or
cross-appeal the district court’s adoption of that ruling. As a result, Brewer asserts
that he must prevail on this issue. But the district court did not explicitly find that the
Attorney General had good cause. Rather, the district court held that even if the
Attorney General lacked good cause, the error was harmless. Thus, we address this
issue on appeal.

                                           -5-
2003). The third step, publication of a new substantive rule, must be completed “not
less than 30 days before [the rule’s] effective date.” See 5 U.S.C. § 553(d).

       An agency may waive the requirements of a notice and comment period and the
30-day grace period before publication if the agency finds “good cause” to do so.
See 5 U.S.C. § 553(b)(B), (d)(3). We have cautioned, however, that courts should not
conflate the pre-adoption notice-and-comment requirements, listed in § 553(b) and
(c), with the post-adoption publication requirements, listed in § 553(d). United States
v. Gavrilovic, 551 F.2d 1099, 1104 n.9 (8th Cir. 1977). Because these are separate
requirements, the agency must have good cause to waive each.

       We note that there is a conflict among the circuits regarding the appropriate
standard of review for an agency’s assertion of good cause under § 553(b)(B). We
have in the past deferred to the agency’s determination and reviewed only “whether
the agency’s determination of good cause complies with the congressional intent” in
§ 553(d). Gavrilovic, 551 F.2d at 1105. This deferential standard appears similar to
the approach taken by the Fifth and Eleventh Circuits, which each used an
arbitrary-and-capricious standard found in 5 U.S.C. § 706(2)(A). See United States
v. Reynolds (Reynolds II), 710 F.3d 498, 506–07 (3d Cir. 2013) (collecting and
reviewing conflicting standards of review). The Fourth and Sixth Circuits, however,
applied de novo review and cited § 706(2)(D). Id. at 507. While we recognize that
this division is unhelpful, we agree with the Third Circuit that the Attorney General’s
assertion of good cause fails under any of the above standards.

      In promulgating the Interim Rule, the Attorney General asserted good cause to
waive the procedural requirements and make the rule effective immediately:

      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


                                         -6-
      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 who have not been
      registered and tracked as provided by SORNA. This would thwart the
      legislative objective of “protect[ing] the public from sex offenders and
      offenders against children” by establishing “a comprehensive national
      system for the registration of those offenders,” SORNA § 102, because
      a substantial class of sex offenders could evade the Act’s registration
      requirements and enforcement mechanisms during the pendency of a
      proposed rule and delay in the effectiveness of a final rule.

      It would accordingly be contrary to the public interest to adopt this rule
      with the prior notice and comment period normally required under
      5 U.S.C. 553(b) or with the delayed effective date normally required
      under 5 U.S.C. 553(d).

72 Fed. Reg. 8894, 8896–97. Thus, the Attorney General offered two rationales for
waiving the requirements: (1) the need to eliminate “any possible uncertainty” about
the applicability of SORNA; and (2) the concern that further delay would endanger
the public. Id.

       The appellate courts are divided over whether the Attorney General’s
justifications for extending SORNA to all pre-Act offenders without adhering to the
requirements of the APA were sufficient. The parties’ arguments in this appeal
largely track the divide in the circuits. Two circuits, the Fourth and the Eleventh, have
held that the Attorney General had good cause to bypass the notice and comment


                                          -7-
provisions.4 In United States v. Gould, the Fourth Circuit noted that there was some
ambiguity about SORNA’s effectiveness and reasoned that the Interim Rule was
necessary to provide “legal certainty about SORNA’s ‘retroactive’ application.” 568
F.3d 459, 469–70 (4th Cir. 2009). Similarly, in United States v. Dean, the Eleventh
Circuit held that the Interim Rule served to promote public safety and that the public
safety exception applied not only to true “emergency situations” but also to situations
“where delay could result in serious harm.” 604 F.3d 1275, 1281 (4th Cir. 2010)
(quoting Jifry v. F.A.A., 370 F.3d 1174, 1179 (D.C. Cir. 2004)). The court found that
despite the long delay between SORNA’s passage and the promulgation of the
Interim Rule, the Attorney General “reasonably determined that waiting thirty
additional days for the notice and comment period to pass would do real harm.” Id.
at 1282–83.

      In contrast, four circuits—the Third, Fifth, Sixth, and Ninth—have found that
the Attorney General’s stated reasons for finding good cause to bypass the 30-day
advance-publication and notice-and-comment requirements—alleviating uncertainty
and protecting the public safety—were insufficient. See Reynolds II, 710 F.3d at
509; United States v. Johnson, 632 F.3d 912, 928 (5th Cir. 2011); United States v.
Valverde, 628 F.3d 1159, 1168 (9th Cir. 2010); United States v. Cain, 583 F.3d 408,
421–24 (6th Cir. 2009). We agree with these circuits that the Attorney General
lacked good cause to waive the procedural requirements.

      The Attorney General’s first rationale, the need to eliminate “uncertainty”
about the law, simply reflects a generalized concern that exists any time an act
requires further substantive rulemaking. There always will be some level of

      4
        The Seventh Circuit also has suggested that the Interim Rule was effective
immediately. See United States v. Dixon, 551 F.3d 578 (7th Cir. 2008), rev’d on
other grounds sub nom., Carr v. United States, 560 U.S. 438 (2010). The court
rejected the defendant’s APA argument as “frivolous” but did not elaborate on its
reasoning. Id. at 583.

                                         -8-
uncertainty about the breadth and timing of applicability until the agency has
promulgated a rule. See Reynolds II, 710 F.3d at 510 (“[S]ome uncertainty follows
the enactment of any law that provides the agency with administrative
responsibility.”). But in this situation, “[t]he desire to eliminate uncertainty, by itself,
cannot constitute good cause.” Id. “If good cause could be satisfied by an Agency’s
assertion that normal procedures were not followed because of the need to provide
immediate guidance and information[,] . . . then an exception to the notice
requirement would be created that would swallow the rule.” Valverde, 628 F.3d at
1166 (internal quotation marks omitted). Congress could have alleviated this
uncertainty by providing that SORNA be immediately applicable to all pre-Act
offenders. Instead, Congress granted the Attorney General discretion to decide how,
and if, SORNA would apply to pre-Act offenders. As such, this level of uncertainty
inherent in the Congressional directive itself cannot constitute an emergency or public
neccesity.

       We also note that the Attorney General did not actually find a concrete
uncertainty to remedy but rather was acting to “eliminat[e] any possible uncertainty.”
72 Fed. Reg. 8894, 8896–97 (emphasis added). There is a difference between
addressing present legal uncertainty and addressing the possibility of future legal
uncertainty. Although the risk of future harm may, under some circumstances, justify
a finding of good cause, that risk must be more substantial than a mere possibility.

       Similarly, the Attorney General’s “public safety rationale cannot constitute a
reasoned basis for good cause because it is nothing more than a rewording of the
statutory purpose Congress provided in the text of SORNA.” Reynolds II, 710 F.3d
at 512. The Attorney General posited that delay in implementing the Interim Rule
“would impair immediate efforts to protect the public from sex offenders who fail to
register.” 72 Fed. Reg. 8894, 8896–97. But delay in implementing a statute always
will cause additional danger from the same harm the statute seeks to avoid. And the



                                            -9-
Attorney General’s stated concern for public safety further is undermined by his own
seven-month delay in promulgating the Interim Rule. Moreover, just as the Attorney
General failed to show any substantial risk of uncertainty about SORNA’s application
to pre-Act offenders, his concern for public safety fails to “point to something
specific that illustrates a particular harm that will be caused by the delay required for
notice and comment.” Reynolds II, 710 F.3d at 513.

      We thus conclude that, even under an arbitrary and capricious standard of
review, there is an insufficient showing of good cause for bypassing the APA’s
requirements of notice and comment and pre-enactment publication.

                                     B. Prejudice

       In the alternative, the government argues that any violation of the APA’s
procedural requirements was harmless to Brewer. The APA instructs courts
reviewing agency action to take “due account . . . of the rule of prejudicial error.”
5 U.S.C. § 706; see Shinseki v. Sanders, 556 U.S. 396, 406–07 (2009) (explaining
that intent of APA’s reference to “prejudicial error” is to summarize harmless-error
rule applied by courts). Because the underlying matter in this case involves a
criminal conviction, the government bears the burden of showing that there was no
prejudicial error. See Reynolds II, 710 F.3d at 515–16; see also Sanders, 556 U.S. at
410–11 (noting that in criminal matters, the government has the burden of showing
harmless error because of the defendant’s liberty interest at stake).

       The minimum publication period required prior to a rule becoming effective
is 30 days. 5 U.S.C. § 553(d). Since the Interim Rule was issued on February 28,
2007, the government argues that if it had observed proper procedure, the Interim
Rule would have become effective 30 days later on March 30, 2007. Because Brewer
did not violate the act until December 2007, the government contends, it is irrelevant



                                          -10-
to Brewer’s conviction whether the rule became effective immediately in February
or later in March. We agree. Brewer’s violation of the Interim Rule occurred
nine months after it would have gone into effect. The absence of those extra thirty
days between effectuation and violation did not result in any prejudice to him.

       But the Attorney General also bypassed the requirement of a period for notice
and comment. To support its position that this error also was harmless, the
government primarily relies on the Fifth Circuit’s decision in United States v.
Johnson, 632 F.3d 912. In Johnson, the Fifth Circuit found that any procedural error
as to the notice-and-comment provision was not prejudicial because the Attorney
General had “thoroughly engage[d] the issues and challenges inherent in the
regulation” when enacting the Interim Rule. 632 F.3d at 931. Because the Attorney
General had “considered the arguments . . . asserted and responded to those
arguments during the interim rulemaking,” albeit without notice and comment, the
Fifth Circuit held that “the error in failing to solicit public comment before issuing
the rule was not prejudicial.” Id. at 932.

      In its brief on appeal, the government here argues:

      Like Johnson, Brewer fails to show he involved himself in the
      post-promulgation comment period. Neither does Brewer allege or
      show that he participated in the Attorney General’s subsequent
      rulemaking process that crafted regulations regarding the more detailed
      provisions of SORNA, in which the Attorney General also considered
      the retroactivity of SORNA, free of APA error. Finally, because Brewer
      makes no showing that the outcome of the process would have differed
      had notice and comment been proper, it is clear that the Attorney
      General’s alleged APA violations would be harmless error as applied to
      him.




                                        -11-
        We disagree with the government. We first note that the Attorney General’s
failure to follow the APA’s pre-promulgation requirements was a “complete failure,”
compared to a “technical failure.” See Reynolds II, 710 F.3d at 516–17. It is not that
the method of allowing notice and comment was flawed; rather, there was no method
at all. Because there was no period during which Brewer, or anyone else, could have
offered comments before the Interim Rule was promulgated, he does not need to show
that any hypothetical comments would have changed the rationale underlying that
rule. Id. at 516 (citing Shell Oil Co. v. EPA, 950 F.2d 741, 752 (D.C. Cir. 1991)).

       Second, the government’s argument improperly shifts to Brewer the burden to
show that the outcome of the process would have been different with the proper
procedures. Moreover, it is irrelevant that Brewer did not participate in the
post-promulgation comment period. As we earlier noted, his only movement in
interstate or foreign commerce occurred after the Interim Rule had been promulgated
but before the Final Rule was published. Thus, Brewer could not be guilty of
violating the final rule, which is the only rule that may have been affected by the
post-promulgation comments. The only notice-and-comment period relevant to his
conviction is the one that the Attorney General failed to provide before promulgation
of the Interim Rule.

       Nor can we accept the government’s assumption that the enacted rule certainly
would have been the same. Contrary to the government’s contention, the Attorney
General did not face a simple “yes or no” decision. Compare Johnson, 632 F.3d at
932, with Reynolds II, 710 F.3d at 520–21. In fact, the Attorney General had a range
of options: from applying SORNA to all pre-Act offenders to applying SORNA to no
pre-Act offenders. The Attorney General also had the opportunity to distinguish
between “‘offenders who have fully left the system and merged into the general
population’” and those “‘who remain in the system as prisoners, supervisees, or
registrants, or reenter the system through subsequent convictions.’” Reynolds II, 710



                                        -12-
F.3d at 521 (quoting the “SMART” Guidelines, 73 Fed. Reg. 38,030, 38,035 (July 2,
2008), which note the Attorney General’s ability to distinguish between prior
offenders on the basis of status). Given this range of choices, we do not believe that
the Attorney General’s final choice was inevitable or that the outcome certainly
would have been the same had there been a period for notice and comment.

        Brewer argues that “even if confronted with just a binary question, the Attorney
General did not give both options full consideration.” We agree. As Brewer notes,
at the time the Interim Rule was promulgated, the Attorney General was persisting in
his view that no rulemaking was needed for SORNA to apply to pre-Act offenders.
See United States v. May, 535 F.3d 912, 919 (8th Cir. 2008) (“The Attorney General
did not believe a rule was even needed to confirm SORNA’s applicability to
defendants [including pre-Act offenders]. Rather, the Attorney General only
promulgated the rule as a precautionary measure to ‘foreclose [ ] such claims [of pre-
Act offenders] by making it indisputably clear that SORNA applies to all sex
offenders (as the Act defines that term) regardless of when they were convicted.’”
(first alteration in original) (quoting 72 Fed. Reg. at 8896)), abrogated in part by
Reynolds, 132 S. Ct. 975. The Attorney General’s attempt to foreclose the possible
claims of pre-Act offenders seems incompatible with his duty seriously to consider
whether SORNA applies to those offenders, and if so, which ones. Such an approach
certainly does not suggest the sort of “flexible and open-minded attitude towards its
own rules,” that is generally required for the notice-and-comment period.
See Prometheus Radio Project v. FCC, 652 F.3d 431, 449 (3d Cir. 2011) (internal
quotation marks omitted). Based on the record before us, we cannot say the
immediate effectiveness of the Interim Rule was harmless as to Brewer.

      In sum, the Attorney General lacked good cause to waive the procedural
requirements of notice and comment when promulgating the Interim Rule, and this




                                         -13-
procedural error prejudiced Brewer. As a result, SORNA did not apply to Brewer in
2007, so his conviction for failing to register is invalid.

                           C. Nondelegation Doctrine

       Because we conclude that the Attorney General lacked good cause to bypass
the APA’s procedural requirements, we need not address Brewer’s second argument
that SORNA violates the nondelegation doctrine. We note, however, that Brewer
acknowledges that his argument is contrary to this circuit’s precedent. See United
States v. Kuehl, 706 F.3d 917 (8th Cir. 2013) (concluding that SORNA did not
violate the nondelegation doctrine).

                                 III. Conclusion

     For the reasons discussed above, we reverse the district court’s denial of
Brewer’s motion under § 2255 and remand. The district court is ordered to vacate
Brewer’s conviction.
                     ______________________________




                                      -14-
