                   United States Court of Appeals
                               For the Eighth Circuit
                           ___________________________

                                   No. 14-2829
                           ___________________________

                               United States of America

                          lllllllllllllllllllll Plaintiff - Appellee

                                             v.

                                  Quinton D. Manning

                         lllllllllllllllllllll Defendant - Appellant
                                         ____________

                      Appeal from United States District Court
                  for the Western District of Arkansas - El Dorado
                                  ____________

                              Submitted: February 9, 2015
                                 Filed: May 22, 2015
                                    ____________

Before LOKEN, SMITH, and COLLOTON, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Quinton Manning was arrested in El Dorado, Arkansas, and charged with
failing to register as a sex offender in violation of 18 U.S.C. § 2250, part of the federal
Sex Offender Registration and Notification Act (SORNA). The district court1 denied


       1
        The Honorable Harry F. Barnes, United States District Judge for the Western
District of Arkansas.
Manning’s motion to dismiss the indictment. Manning entered a conditional guilty
plea and now appeals the denial of his motion to dismiss, raising frequently-litigated
constitutional and statutory issues. Reviewing de novo, we affirm.

       Enacted in 2006, SORNA provides for the registration of a sex offender --
defined as “an individual who was convicted of a sex offense” -- and requires that
every jurisdiction maintain a sex offender registry. 42 U.S.C. §§ 16911(1), 16912.
Manning’s prior sex offense was a March 1997 sexual assault conviction in Texas.
The conviction required him to register as a sex offender in Texas after his release.
SORNA requires a sex offender to register in each jurisdiction where he or she resides
and update the registration within three business days of a “change in name, residence,
employment, or student status.” 42 U.S.C. § 16913(a) and (c). Manning failed to
register in Arkansas when he moved there in late 2010 or early 2011. SORNA
provides that a sex offender who travels in interstate commerce and knowingly fails
to register shall be fined or imprisoned not more than 10 years, or both. 18 U.S.C.
§ 2250(a). That is the offense Manning is appealing.

      SORNA did not clarify whether its registration requirements apply to sex
offenders such as Manning whose sex offense convictions were prior to SORNA’s
enactment. Rather, SORNA gave the Attorney General “the authority to specify the
applicability of the requirements of this subchapter to sex offenders convicted before
the enactment of this chapter . . . and to prescribe rules for the registration of any such
sex offenders.” 42 U.S.C. § 16913(d).

       A. On appeal, Manning raises two constitutional issues that are controlled by
prior Eighth Circuit decisions. First, he argues that delegating to the Attorney General
the legislative power to determine the individuals to whom SORNA applies violates
the constitutional nondelgation doctrine that is “rooted in the principle of separation
of powers.” United States v. Kuehl, 706 F.3d 917, 919 (8th Cir. 2013). We rejected
this contention in Kuehl, like all circuits that have considered the issue. Id. at 920.

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Second, he argues that SORNA violates the Commerce Clause as construed by the
Supreme Court in National Federation of Independent Business v. Sebelius, 132 S. Ct.
2566, 2587-91 (2012). A panel of this court recently ruled that SORNA’s
constitutionality under the Commerce Clause, repeatedly upheld prior to this recent
decision, remains intact. United States v. Anderson, 771 F.3d 1064, 1069-70 (8th Cir.
2014), cert. denied,135 S. Ct. 1575 (2015); accord United States v. Lott, 750 F.3d 214,
220 (2d Cir.), cert. denied, 135 S. Ct. 253 (2014).

       “A panel of this Court is bound by a prior Eighth Circuit decision unless that
case is overruled by the Court sitting en banc.” United States v. Wright, 22 F.3d 787,
788 (8th Cir. 1994). Accordingly, these arguments are foreclosed by Eighth Circuit
precedent.

      B. Manning’s remaining argument on appeal is grounded in the rulemaking
provisions of the federal Administrative Procedure Act (APA), 5 U.S.C. § 553. It has
been rejected by at least four of our sister circuits, but we have not yet addressed it.

      Following SORNA’s enactment, the Attorney General took three actions
declaring that the Act’s registration requirements apply to those whose sex offender
convictions pre-dated the statute. The first was an “Interim Rule,” published on
February 28, 2007. 72 Fed. Reg. 8894, 8897. Second, the Attorney General
published Sentencing, Monitoring, Apprehending, Registering, and Tracking
(SMART) Guidelines, 72 Fed. Reg. 30,210 (May 30, 2007), which became effective
on August 1, 2008, 73 Fed. Reg. 38,030 (July 2, 2008). Third, the Attorney General
promulgated a Final Rule which became effective on January 28, 2011. 75 Fed. Reg.
81,849 (Dec. 29, 2010).

       Throughout this period, the Attorney General took the position that no agency
action was needed to make SORNA registration applicable to prior sex offenders, an
issue that divided the circuit courts. The Supreme Court resolved this conflict in

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Reynolds v. United States, 132 S. Ct. 975, 978 (2012), concluding that the plain
language of 42 U.S.C. § 16913(d) means that the “registration requirements do not
apply to pre-Act offenders until the Attorney General specifies that they do apply.”
The Court noted the Attorney General’s Interim Rule, SMART Guidelines, and Final
Rule but declined to decide “[w]hether the Attorney General’s Interim Rule sets forth
a valid specification.” Id. at 984.

       In United States v. Brewer, 766 F.3d 884, 890 (8th Cir. 2014), a panel of this
court held that the Interim Rule was invalid because the Attorney General did not
comply with the notice and comment requirements of APA substantive rule-making,
another issue that has divided the circuits. Our decision in Brewer provides no relief
for Manning because his failure-to-register offense was committed when he moved
to Arkansas in late 2010 or early 2011, long after the SMART Guidelines became
effective. Accordingly, to prevail, Manning must persuade us that SORNA’s
registration requirements do not apply to him because the SMART Guidelines were
invalidly promulgated. In United States v. Knutson, 680 F.3d 1021, 1023 (8th Cir.
2012), the same situation was presented, but the SMART Guidelines issue was not
raised or decided.

       Manning argues that the SMART Guidelines were not a proper exercise of the
Attorney General’s § 16913(d) authority to specify whether SORNA’s registration
requirements apply to pre-Act offenders. The Guidelines proposal relied on the
Attorney General’s authority in § 16912(b) to “issue guidelines and regulations to
interpret and implement this subchapter,” Manning emphasizes, not on the § 16913(d)
authority to specify. See 72 Fed. Reg. 30,210, 30,212 (May 30, 2007). The SMART
Guidelines did not purport to be an exercise of the Attorney General’s § 16913(d)
authority, Manning argues, just a reaffirmation of the now-invalidated Interim Rule.
Like our sister circuits, we reject this contention.




                                         -4-
       Section 16912(b) “unambiguously gives the Attorney General the authority to
make substantive rules on how to implement SORNA.” United States v. Stevenson,
676 F.3d 557, 564 (6th Cir.), cert. denied, 133 S. Ct. 168 (2013). The authority in
§ 16912(b) to “interpret and implement this subchapter” encompasses the narrower
power in § 16913(d) to apply SORNA’s registration requirements to pre-enactment
sex offenders. See United States v. Whitlow, 714 F.3d 41, 46 (1st Cir. 2012), cert.
denied, 134 S. Ct. 287 (2013); Lott, 750 F.3d at 218. The APA requires only that a
proposed rule provide some notice of its legal authority for that rule so the public has
sufficient opportunity to comment. See 5 U.S.C. § 553(b)(2); Lott, 750 F.3d at 218;
Whitlow, 714 F.3d at 46; Stevenson, 676 F.3d at 563. The Guidelines proposal
included a discussion of “retroactivity” and specifically referred to the Attorney
General’s authority under § 16913(d). 72 Fed. Reg. at 30,212 (“SORNA’s
requirements apply to all sex offenders, including those whose convictions predate the
enactment of the Act.”). That the discussion referred to the prior Interim Rule does
not mean the Guidelines were not an independent exercise of rulemaking authority.
Thus, “[t]he SMART Guidelines were an act of substantive rulemaking.” Lott, 750
F.3d at 217; see generally Chrysler Corp. v. Brown, 441 U.S. 281, 302 & n.31
(1979).2

      Manning further argues that, if the SMART Guidelines were an exercise of
substantive rulemaking authority, they did not comply with the APA’s notice-and-
comment requirements because the Attorney General did not provide an opportunity
to comment on the substantive retroactivity provisions and, to the extent comments
were received, did not explain how “significant problems regarding retroactivity”
were resolved. This contention seriously understates the quantity of public comments


      2
       Because the Attorney General chose to proceed by substantive rule-making in
exercising his authority to “specify,” we need not consider whether the Guidelines
would be an invalid exercise of the authority to specify had he proceeded by
interpretive rule. See Perez v. Mortgage Bankers Ass’n, 135 S. Ct. 1199, 1203-04
(2015).

                                          -5-
concerning the application of SORNA’s requirements to pre-enactment sex offenders,
and the Attorney General’s substantive response to those comments. See 73 Fed. Reg.
38,030, 38,031, 38,035-36 (July 2, 2008). We agree with our sister circuits that the
Attorney General satisfied the notice and comment requirements of APA rulemaking.
See Lott, 750 F.3d at 219-20; Whitlow, 714 F.3d at 47; Stevenson, 676 F.3d at 565;
accord United States v. Mattix, 694 F.3d 1082, 1084-85 (9th Cir. 2012), cert. denied,
134 S. Ct. 139 (2013).

       For these reasons, we conclude that the Attorney General exercised his
authority under § 16913(d) “to specify the applicability of [SORNA’s] requirements
to sex offenders convicted before the enactment of this chapter” no later than August
1, 2008, the effective date of the SMART Guidelines. Accordingly, the district court
correctly denied Manning’s motion to dismiss the indictment.

      The judgment of the district court is affirmed.
                     ______________________________




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