                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 10a0059p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                  X
                            Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                   -
                                                   -
                                                   -
                                                       No. 08-5828
           v.
                                                   ,
                                                    >
                                                   -
                         Defendant-Appellant. -
 JOHN F. UTESCH,
                                                   -
                                                  N
                    Appeal from the United States District Court
                for the Eastern District of Tennessee at Greeneville.
               No. 07-00105-001—J. Ronnie Greer, District Judge.
                                Argued: January 19, 2010
                           Decided and Filed: March 2, 2010
                  Before: SILER, MOORE, and CLAY, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Debra A. Breneman,
ASSISTANT UNITED STATES ATTORNEY, Knoxville, Tennessee, for Appellee.
ON BRIEF: Nikki C. Pierce, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Greeneville, Tennessee, for Appellant. Helen C.T. Smith,
ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        KAREN NELSON MOORE, Circuit Judge. John F. Utesch (“Utesch”) appeals the
district court’s denial of his motion to dismiss his indictment for violating the Adam Walsh
Sex Offender Registration and Notification Act of 2006 (“SORNA” or “the Act”), Pub. L.
109-248. Utesch pleaded guilty after reserving his right to challenge the Act and its




                                             1
No. 08-5828          United States v. Utesch                                            Page 2


application to him on constitutional and other grounds. The district court sentenced him to
three months of incarceration and ten years of supervised release.

        On appeal, Utesch argues that (1) SORNA cannot apply to him without violating the
Ex Post Facto and Due Process Clauses because the three states among which he moved have
not implemented the Act; (2) his conviction violates due process because the government
failed to notify him of his obligation to register under the Act; (3) SORNA’s grant of
authority to the Attorney General to make the Act retroactive violates the nondelegation
doctrine; (4) the Attorney General’s regulation making SORNA retroactive violated the
Administrative Procedure Act (“APA”); (5) SORNA’s application under 18 U.S.C.
§ 2250(a)(2)(A) violates the Commerce Clause; (6) SORNA’s application under 18 U.S.C.
§ 2250(a)(2)(B) violates the Commerce Clause and Ex Post Facto Clause; and (7) SORNA
violates the Tenth Amendment by requiring states to implement its provisions. Utesch also
challenges the district court’s imposition of certain special conditions of supervised release
on the grounds that they are not reasonably related to the 18 U.S.C. § 3553(a) sentencing
factors, they involve greater deprivation than necessary to achieve the purposes of
sentencing, and they are inconsistent with policy statements of the U.S. Sentencing
Commission. As explained below, we REVERSE the district court’s order based on the
failure of the Attorney General’s retroactivity regulation to conform to the requirements of
the APA. Accordingly, we do not reach Utesch’s constitutional challenges, and we need not
address his conditions of release.

                                     I. BACKGROUND

A. Factual Background

        In 1997, Utesch pleaded guilty to assault with intent to commit sexual abuse of a
fourteen-year-old girl, an aggravated misdemeanor, under Iowa Code Ann. §§ 708.1 and
709.11. He was sentenced to 365 days in prison, which was reduced to 30 days, and one
year of supervised release. Iowa law classified him as a sex offender and required
registration for ten years after his release. Specifically, state law required him to verify his
address and phone number annually, to provide notice of any change of address within five
days of moving, and to provide notice of compliance with the registration laws of any other
state to which he moved within five days of moving.
No. 08-5828         United States v. Utesch                                           Page 3


        Utesch registered in Iowa in September 1997, November 1998, April 1999, April
2000, and November 2001. In October 2002, he moved to Virginia and registered as a sex
offender there. United States v. Utesch, No. 2:07-CR-105, 2008 WL 656066, at *2 (E.D.
Tenn. Mar. 6, 2008). On December 31, 2002, he moved to Tennessee, where he has resided
ever since. Though he was required to do so within forty-eight hours of establishing
residence, Tenn. Code Ann. § 40-39-203, Utesch did not register in Tennessee until his arrest
in connection with this case. Utesch, 2008 WL 656066, at *2. In September of 2003, 2004,
2005, and 2006, the Iowa Department of Public Safety sent address-verification forms to his
last-known address in Iowa. All forms were returned as undeliverable.

        From October 2002 to July 2004, Utesch worked at a business located in Tennessee,
commuting from Virginia from the period of October to December 2002, when he moved
to Tennessee. From July 2004 to August 2005, he was self-employed as a carpenter. From
September 20, 2005 to at least November 28, 2007 (the date of his arrest), he worked at K-
VA-T Food Stores in Bristol, Virginia, just across the Tennessee border. Utesch therefore
“traveled in interstate commerce from his residence in Tennessee to his workplace in
Virginia on a regular basis, at least weekly.” Supp. Stip. of Facts at 2 (Document 22).

B. Procedural Background

        On November 13, 2007, Utesch was named in a one-count indictment charging him
with failure to register or update his registration under Iowa law from September 1, 2006 to
November 12, 2007, as required by SORNA, in violation of 18 U.S.C. § 2250(a) and
42 U.S.C. §§ 16911, 16913. He was arrested on November 28, 2007, after which he
registered in Tennessee for the first time and in Iowa for the first time since 2001. Utesch
filed a motion to dismiss the indictment, and the government responded in opposition. While
the motion was pending, the parties entered into a plea agreement under which Utesch
reserved the right to appeal the district court’s ruling on his motion to dismiss.

        The district judge referred the motion to dismiss to a magistrate judge for a report
and recommendation, and the magistrate judge held a hearing on February 7, 2008.
Following the hearing, the parties submitted a supplemental stipulation of facts detailing
Utesch’s residency and employment history and the dates of his interstate travel. On
February 14, 2008, the magistrate judge issued a report recommending denial of Utesch’s
No. 08-5828           United States v. Utesch                                         Page 4


motion. After receiving an objection from Utesch and a response from the government, the
district judge adopted the report and recommendation in full on March 6, 2008. See Utesch,
2008 WL 656066.

        At a hearing on March 17, 2008, the district court accepted Utesch’s guilty plea.
Following the filing of a presentence report, the submission of memoranda from both parties,
and a hearing on June 16, 2008, the district court varied downward from the Guidelines
range of 10 to 16 months and sentenced Utesch to three months in prison and ten years of
supervised release.

        The district court imposed ten special conditions of supervision, including the
following five that Utesch challenges on appeal: (1) sex offender mental health treatment
as directed by the probation officer; (2) no contact with the victim of his underlying 1997
sex offense without the prior written consent of the probation officer; (3) no possession of
photographs or recorded material for the purpose of sexual arousal; (4) submission of his
person, vehicle, residence, and other areas over which he exercises control to search for such
material; and (5) no access to computers with an internet connection without the probation
officer’s prior written consent. Utesch objected to the special conditions. He timely filed
a notice of appeal on June 27, 2008.

                                       II. ANALYSIS

A. Standard of Review

        In reviewing a motion to dismiss an indictment, we review the district court’s legal
conclusions de novo and its findings of fact for clear error or abuse of discretion. United
States v. Grenier, 513 F.3d 632, 635-36 (6th Cir. 2008). In this case, the operative facts are
not in dispute. Utesch challenges the applicability and constitutionality of SORNA, so our
review is de novo.

B. Overview of SORNA

        Congress enacted SORNA to create a national system for the registration of sex
offenders. 42 U.S.C. § 16901. Section 16913 provides in relevant part that “[a] sex offender
shall register, and keep the registration current, in each jurisdiction where the offender
resides, where the offender is an employee, and where the offender is a student.” § 16913(a).
No. 08-5828            United States v. Utesch                                                    Page 5


As part of keeping the registration current, an offender “shall, not later than 3 business days
after each change of name, residence, employment, or student status, appear in person in at
least 1 jurisdiction involved pursuant to subsection (a)” and report the relevant changes.
§ 16913(c). Section 16913 also explains the requirements for sex offenders registering for
the first time. §16913(b). It further provides that

         [t]he Attorney General shall have the authority to specify the applicability
         of the requirements of this subchapter to sex offenders convicted before July
         27, 2006 or its implementation in a particular jurisdiction, 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) of this
         section.
              1
§ 16913(d).

         SORNA makes it a crime to violate its registration requirements. The Act
provides that a person who is (1) “required to register under” SORNA,2 (2) “travels in
interstate or foreign commerce” or is a sex offender under federal, tribal, D.C., or U.S.
territorial law, and (3) “knowingly fails to register or update registration as required by
[SORNA] shall be fined” and/or imprisoned for up to ten years. 18 U.S.C. § 2250(a).

         SORNA became effective on July 27, 2006. On February 28, 2007, U.S.
Attorney General Alberto Gonzales issued an immediately effective interim rule
applying SORNA “to all sex offenders, including sex offenders convicted of the offense
for which registration is required prior to the enactment of [the] Act.” 28 C.F.R. § 72.3.
The Attorney General promulgated this regulation without notice and comment and
without a thirty-day advance publication of its final form, disposing of these
requirements based on the “good cause” provisions of the APA, 5 U.S.C. § 553(b)(B),
(d)(3). See 72 Fed. Reg. 8894, 8896. At the same time, the Attorney General stated that
comments would be accepted until April 30, 2007. Id. at 8895.



         1
           Section 16913 also provides that states shall create state penalties with a maximum imprisonment
term of more than one year for failure to register under SORNA. § 16913(e). This provision is not
relevant to the case at bar.
         2
          SORNA requires sex offenders to register, 42 U.S.C. § 16913, and defines “sex offender” as “an
individual who was convicted of a sex offense,” § 16911(1).
No. 08-5828         United States v. Utesch                                          Page 6


        On May 30, 2007, the Attorney General published proposed comprehensive
guidelines for SORNA, referred to as the “SMART” guidelines after the Office of Sex
Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. 72 Fed.
Reg. 30,210. The preliminary guidelines reiterated that “SORNA’s requirements apply
to all sex offenders, including those whose convictions predate the enactment of the
Act.” Id. at 30,212. Comments were to be accepted through August 1, 2007. Id. at
30,210.

        On July 2, 2008, the Attorney General issued the final SMART guidelines.
73 Fed. Reg. 38,030. Therein, he responded to objections to SORNA retroactivity, id.
at 38,031, 38,036, and included the retroactivity provision in the final regulations, id. at
38,046-47. The regulations stated their effective date as July 2, 2008. Id. at 38,030. For
the reasons explained below, infra note 8, we understand the regulations to have become
effective thirty days after their publication, on August 1, 2008. See 5 U.S.C. § 553(d).

C. Retroactive Application of SORNA to Utesch

          The federal courts of appeal are divided over whether SORNA by its own terms
applies to sex offenders who were convicted prior to SORNA’s enactment. The Eighth
and Tenth Circuits have held that it does, reading § 16913(d) as conferring on the
Attorney General only the limited power of providing a method for previously convicted
offenders to comply with SORNA’s registration requirements despite the fact that their
states may not have required them to register at all or as promptly as SORNA requires.
See United States v. May, 535 F.3d 912, 916-19 (8th Cir. 2008); United States v.
Hinckley, 550 F.3d 926, 932-35 (10th Cir. 2008); United States v. Lawrance, 548 F.3d
1329, 1336 (10th Cir. 2008). The Fourth, Fifth, Seventh, Ninth, and Eleventh Circuits
have held that § 16913(d) gives the Attorney General the additional, broader authority
to make SORNA retroactive in the first place, meaning that the Act itself only applies
going forward until the Attorney General prescribes otherwise. See United States v.
Hatcher, 560 F.3d 222, 228-29 (4th Cir. 2009); United States v. Young, 585 F.3d 199,
201 (5th Cir. 2009); United States v. Dixon, 551 F.3d 578, 581-82 (7th Cir. 2008), cert.
No. 08-5828            United States v. Utesch                                                    Page 7


granted sub nom. Carr v. United States, No. 08-1301, 130 S. Ct. 47, 48 (mem.)3; United
States v. Juvenile Male, 590 F.3d 924, 929 (9th Cir. 2010); United States v. Madera, 528
F.3d 852, 858 (11th Cir. 2008).4 The government urges us to adopt the former view,
under which Utesch would lack standing to challenge the validity of any retroactivity
regulation issued by the Attorney General, as such a regulation would not be the basis
of the application of SORNA’s requirements to him. See, e.g., United States v. Hacker,
565 F.3d 522, 528 (8th Cir. 2009).

         Following the completion of briefing in this case, however, another panel of this
court rejected the position advocated by the government. In United States v. Cain, 583
F.3d 408 (6th Cir. 2009), the panel held that SORNA was not retroactive as of the date
of its enactment and that § 16913(d) vested the retroactivity decision with the Attorney
General. Id. at 419. It explained that

         Congress required immediate registration of all sex offenders convicted
         after SORNA, required the Attorney General to make rules for any
         offenders somehow not able to register with their jurisdiction despite
         SORNA’s implementation, and allowed the Attorney General to
         determine to what degree SORNA’s requirements should apply to
         offenders convicted before SORNA as well as what registration rules
         should apply to them.
Id. at 416. The issue, then, is whether there exists any valid regulation promulgated by
the Attorney General pursuant to § 16913(d) that subjected Utesch to SORNA during
the period covered by his indictment. There are three candidates: (1) the February 28,
2007 interim regulation, (2) the preliminary SMART guidelines issued on May 30, 2007,
and (3) the final SMART guidelines issued on July 2, 2008.

         The parties focus on the February 28, 2007 interim regulation. While that
regulation stated that comments would be accepted until April 30, 2007, it became
effective upon issuance. 72 Fed. Reg. at 8895. Utesch argues that the interim regulation


         3
         At oral argument, the government stated that it believed that the issues currently pending before
the Supreme Court in Carr would not affect Utesch’s case.
         4
          In the context of a nondelegation challenge, the Second Circuit found it unnecessary to settle
on one side of the debate. United States v. Guzman, 591 F.3d 83, 91-93 (2d Cir. 2010).
No. 08-5828             United States v. Utesch                                                      Page 8


cannot support his conviction because it was not promulgated pursuant to the APA’s
notice-and-comment and thirty-day waiting-period requirements.                              With certain
exceptions not relevant here,5 the notice-and-comment procedure requires the following:

         (b)       General notice of proposed rule making shall be published in the
                   Federal Register, unless persons subject thereto are named and
                   either personally served or otherwise have actual notice thereof
                   in accordance with law. The notice shall include
                   (1)     a statement of the time, place, and nature of
                           public rule making proceedings;
                   (2)     reference to the legal authority under which the
                           rule is proposed; and
                   (3)     either the terms or substance of the proposed rule
                           or a description of the subjects and issues
                           involved.
                   ...
         (c)       After notice required by this section, the agency shall give
                   interested persons an opportunity to participate in the rule making
                   through submission of written data, views, or arguments with or
                   without opportunity for oral presentation. After consideration of
                   the relevant matter presented, the agency shall incorporate in the
                   rules adopted a concise general statement of their basis and
                   purpose. . . .

5 U.S.C. § 553. The purpose of this procedure is “to get public input so as to get the
wisest rules,” to “ensure fair treatment for persons to be affected by regulations,” and “to
ensure that affected parties have an opportunity to participate in and influence agency
decision making at an early stage.” Dismas Charities, Inc. v. U.S. Dep’t of Justice, 401
F.3d 666, 678, 680 (6th Cir. 2005) (internal quotation marks omitted). It may be forgone
“when the agency for good cause finds . . . that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.” § 553(b)(B). The
publication requirement provides that an agency must publish the final version of a
regulation for at least thirty days before the regulation becomes effective. § 553(d). The
purpose is to “give[] persons affected by the change in the law time to prepare to comply



         5
            The notice-and-comment procedure is not required for (1) rules involving military or foreign
affairs, (2) rules “relating to agency management or personnel or to public property, loans, grants, benefits,
or contracts”; or (3) interpretative rules, policy statements, or agency procedural rules. 5 U.S.C. § 553.
No. 08-5828            United States v. Utesch                                                     Page 9


with the new rule.” Cain, 583 F.3d at 423. This provision likewise may be bypassed
“for good cause found and published with the rule.” § 553(d)(3).

         In issuing the interim regulation, the Attorney General certified that immediate
effectiveness was necessary to eliminate uncertainty about the Act’s coverage and to
ensure protection of the public without delay. 72 Fed. Reg. at 8896-97. In Cain, the
panel held that the Attorney General’s reasons did not amount to the “good cause”
required to bypass the APA’s procedural requirements under 5 U.S.C. § 553(b)(B),
(d)(3). 583 F.3d at 420-24.6 The panel explained that “a desire to provide guidance to
regulated parties is not sufficient to show good cause to bypass the notice and comment
provisions,” and noted that some period of uncertainty was unavoidable given
Congress’s decision to delegate the retroactivity decision and “to decline to bypass the
APA’s requirements.” Id. at 421. In this way, the panel reasoned further, “Congress had
thus already balanced the costs and benefits of an immediately effective rule compared
to the delayed implementation of a reasoned regulation.” Id. The Cain panel found the
Attorney General’s certification inadequate to dispose of the “thirty-day advance
publication” requirement for the same reasons and added that the Attorney General’s
statement of reasons “is particularly inadequate for a regulation that increases criminal
penalties.” Id. at 423. On those grounds, the panel held that SORNA did not apply to
the defendant in that case, who had originally been convicted of a sex offense in 1998
and whose indictment charged him with failure to update his registration from October
16, 2006 through March 28, 2007. Id. at 424; see also United States v. Doshak, No. 08-
3141, 2009 WL 5125516, at *1-2 (6th Cir. Dec. 29, 2009) (unpublished opinion)
(applying Cain to vacate the conviction of a defendant indicted for violation of




         6
          Prior to the Cain decision, the Sixth Circuit in an unpublished decision treated February 28, 2007
as the appropriate retroactivity date, made statements suggesting that SORNA might be retroactive on its
own terms, and stated that § 16913(d) applies only to initial registration. United States v. Samuels, 319
F. App’x 389, 393-95 (6th Cir. 2009). Shortly thereafter, a district court in the circuit held that “the
Attorney General’s explicit rationale demonstrates good cause.” United States v. Hernandez, 615 F. Supp.
2d 601, 613 (E.D. Mich. 2009). Cain has overruled both Samuels and Hernandez on these points.
No. 08-5828            United States v. Utesch                                                     Page 10


SORNA’s registration requirements “on or about October 26, 2006, through on or about
March 20, 2007”).7

         On the basis of Cain, it appears that the interim regulation cannot support
retroactivity in the instant case. We consider the possibility, however, that while the
interim rule did not apply SORNA to the defendant in Cain, it may have applied the Act
to Utesch. In Cain, the defendant was indicted on March 28, 2007, prior to the
comments deadline of April 30, 2007 and less than thirty days after publication. The
Cain court specifically took no position on the validity of an indictment charging a
defendant after the close of the comment period and more than thirty days after
publication of the rule—that is, a defendant in Utesch’s position. 583 F.3d at 423 n.6,
424 n.7.

         We now hold that a defendant in Utesch’s position is not bound by the interim
rule. While the thirty-day advance publication requirement is met here, such that Utesch
had time to comply with the rule, see Rowell v. Andrus, 631 F.2d 699, 704 (10th Cir.
1980) (holding that a regulation made effective less than thirty days after publication,
in violation of 5 U.S.C. § 553(d), may be held valid after the passage of thirty days), we
have no indication that the notice-and-comment process was actually carried out. Under
standard APA procedure, an agency issues a proposed rule, requests comments, reviews
those comments, and then publishes a final rule. As the D.C. Circuit has explained,
“notice and an opportunity for comment are to precede rule-making”; the APA requires
that “affected parties have an opportunity to participate in and influence agency decision
making at an early stage, when the agency is more likely to give real consideration to
alternative ideas.” N.J. Dep’t of Envtl. Prot. v. EPA, 626 F.2d 1038, 1049-50 (D.C. Cir.
1980) (internal quotation marks omitted). In this case, the Attorney General—the
agency—solicited comments, but the interim rule became effective immediately, before


         7
           The two other circuit courts to have ruled on the validity of the interim regulation under the APA
have upheld it. In United States v. Gould, 568 F.3d 459 (4th Cir. 2009), the Fourth Circuit held over Judge
Michael’s vigorous dissent that the reasons proferred by the Attorney General amounted to good cause.
Id. at 470. The Cain panel directly engaged and rejected the Fourth Circuit’s reasoning. Cain, 583 F.3d
at 422 (stating that the Gould “court’s brief analysis offered only three weak reasons for its holding”). In
Dixon, the Seventh Circuit dismissed the argument as “frivolous” in a parenthetical with no analysis at all.
551 F.3d at 583.
No. 08-5828        United States v. Utesch                                        Page 11


receipt and review of any public feedback. There was never any follow-up publication
corresponding to the interim regulation that evidenced actual consideration of public
commentary. Therefore, we conclude that the interim rule did not make SORNA
effective against Utesch or any other defendants convicted before SORNA’s enactment.

       We turn next to the comprehensive SMART guidelines, which were promulgated
according to notice and comment procedures. The preliminary guidelines, which
included a provision making SORNA retroactive, see 72 Fed. Reg. at 30,212, were
published on May 30, 2007 and stated that comments would be accepted until August
1, 2007. Id. at 30,210. The Attorney General then issued the final SMART guidelines
on July 2, 2008, responding to the comments received and maintaining that SORNA
would be applied retroactively. 73 Fed. Reg. 38,030; 38,031; 38,035-36; 38,046-47.
While this process is precisely what the APA requires, it was not complete by the time
of Utesch’s indictment on November 13, 2007. The comments period had closed, but
the Attorney General had not yet issued the final rule in response to the commentary.
See 5 U.S.C. § 553(c) (providing that the agency shall incorporate a statement of purpose
into the rules “[a]fter consideration of the relevant matter presented”); PPG Indus., Inc.
v. Costle, 630 F.2d 462, 466 (6th Cir. 1980) (reading the APA as requiring agencies “to
give reasoned responses to all significant comments in a rulemaking proceeding”). The
preliminary guidelines were published before Utesch’s indictment, but these were only
“[p]roposed guidelines,” 72 Fed. Reg. at 30,210, and did not carry the force of law. See
United States v. Springer, 354 F.3d 772, 776 (8th Cir. 2004) (“[I]t is well settled that
proposed regulations . . . have no legal effect.”) (internal quotation marks omitted); Ctr.
for Auto Safety v. Nat’l Highway Traffic Safety Admin., 710 F.2d 842, 846 (D.C. Cir.
1983) (noting that “the issuance of a notice of proposed rulemaking . . . often will not
be ripe for review because the rule may or may not be adopted or enforced”); cf.
Commodity Futures Trading Comm’n v. Schor, 478 U.S. 833, 845 (1986) (“It goes
without saying that a proposed regulation does not represent an agency’s considered
interpretation of its statute and that an agency is entitled to consider alternative
interpretations before settling on the view it considers most sound.”). To hold otherwise
would be contrary to the APA’s thirty-day advance publication requirement. See Rowell,
No. 08-5828            United States v. Utesch                                                   Page 12


631 F.2d at 702-03 & n.2 (holding that the thirty-day period relates to the final rule, not
the proposed rule, because “until publication is made of the rule actually adopted, the
public of course does not know which course the agency will take or how to prepare for
the regulation”).

         At the time of Utesch’s indictment, then, there was no properly promulgated
regulation in place applying SORNA to him retroactively. SORNA became effective
against offenders convicted before its enactment thirty days after the final SMART
guidelines were published: that is, on August 1, 2008.8 Utesch’s failure to register and
his interstate travel in this case took place well before that date.9 Accordingly, the
indictment should have been dismissed. See 5 U.S.C. § 706(2)(D) (“The reviewing court
shall hold unlawful and set aside agency action, findings, and conclusions found to be
without observance of procedure required by law.”).

         At oral argument, the government raised one final argument that might salvage
Utesch’s conviction. Citing Playter v. Federal Aviation Administration, No. 90-3420,
1991 WL 80311 (6th Cir. May 16, 1991) (unpublished opinion), government counsel
suggested that the conviction could be upheld on the ground that the APA violations
were harmless in light of the proper promulgation of the SMART guidelines, which
reaffirmed the interim regulation’s retroactivity provision. Playter concerned a pilot’s
challenge to the FAA’s assessment of a civil penalty against him for flying too low in
violation of aviation regulations. Id. at *1. In March 1990, the Administrator of the
FAA denied relief on the basis of the pilot’s failure timely to file an answer to the civil
penalty order, as required by the applicable agency regulations. Id. at *2. Less than one
month after the Administrator’s decision, the D.C. Circuit invalidated the FAA

         8
            Though the guidelines themselves provide an immediate effective date of July 2, 2008, the
Attorney General provided no statement of reasons to establish “good cause” for disposing of the thirty-
day publication requirement. See 5 U.S.C. § 553(d). Had the Attorney General provided a rationale
similar to that accompanying its interim regulation, we likely would find it inadequate under the reasoning
of Cain. 583 F.3d at 421-24. Bound to enforce the procedural requirements of the APA, we therefore hold
that the final regulations became effective thirty days after publication. See Rowell, 631 F.2d at 704.
         9
          For an example of a case in which SORNA’s retroactive application was upheld because the
relevant conduct happened after the final SMART guidelines became effective, see United States v.
Coleman, No. 9-30-ART, 2009 WL 4255545, at *1-2 (E.D. Ky. Nov. 24, 2009) (government alleged that
defendant failed to register and traveled across state lines through April 2009).
No. 08-5828        United States v. Utesch                                         Page 13


regulations at issue in Playter because they had not been promulgated according to the
APA’s notice-and-comment procedure. Air Transp. Ass’n v. Dep’t of Transp., 900 F.2d
369, 380 (D.C. Cir. 1990). In July 1990, the FAA repromulgated the rules in compliance
with the APA. The Playter court held that any request that the rules be held invalid
would be moot in light of the repromulgation. 1991 WL 80311, at *5.

       The APA requires us to take “due account . . . of the rule of prejudicial error”
before holding any agency action unlawful and issuing relief. 5 U.S.C. § 706. For three
reasons, however, Playter does not require that we uphold Utesch’s conviction based on
harmless error. First, Playter is an unpublished, per-curiam opinion that is not binding
precedent. See Bell v. Johnson, 308 F.3d 594, 611 (6th Cir. 2002). Second, the Playter
court based its decision in part on its uncertainty that the original rulemaking violated
the APA. The Supreme Court vacated Air Transport Association, which dealt with a
pre-enforcement challenge to immediately effective regulations, and remanded for
consideration of mootness after the FAA promulgated new rules and after the parties
agreed that the petitioner no longer had an interest in challenging the regulations. Dep’t
of Transp. v. Air Transp. Ass’n, 498 U.S. 1077, 1077 (1991); Air Transp. Ass’n v. Dep’t
of Transp., 933 F.2d 1043, 1043 (D.C. Cir. 1991) (Silberman, J., concurring) (on
remand, explaining how the case had become moot). In Playter, then, the court noted
that “there is now an absence of authority for petitioner’s contention that the Penalty
Rules applied in his case were invalid.” 1991 WL 80311, at *5. The court also
emphasized that the “procedural rules . . . may not have been promulgated in accordance
with appropriate APA procedures.” Id.

       Finally, the rule of harmless error cannot justifiably be applied on the facts of the
instant case. As the Ninth Circuit has pointed out, a reviewing court must focus not
merely on the ultimate rule but on the process of an administrative rulemaking;
otherwise, an agency could always violate the APA’s procedural requirements based on
the representation that it would have adopted the same rule had the proper process been
followed. Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1487 (9th Cir. 1992).
Courts have generally applied the harmless-error rule in the agency context when the
No. 08-5828            United States v. Utesch                                                  Page 14


procedural deficiencies did not defeat the purpose of the bypassed requirements. See,
e.g., Shelton v. Marsh, 902 F.2d 1201, 1206-07 (6th Cir. 1990) (holding that failure to
provide notice was harmless when interested parties had actual notice); Riverbend
Farms, 958 F.2d at 1487-88 (holding that “all parties before us knew the ground rules”
for public comment); Conservation Law Found. v. Evans, 360 F.3d 21, 29-30 (1st Cir.
2004) (holding the failure to provide a fifteen-day comment period harmless when the
rulemaking process included several opportunities for public participation). Here, the
process was fatally flawed; the Attorney General provided affected parties no
opportunity to participate in the crafting of the interim rule before it purported to take
effect against them.

         The publication of the final SMART guidelines does not alter the analysis. The
fact that the Attorney General eventually made SORNA retroactive through legitimate
means cannot sustain prosecution of an individual based on conduct committed long
before the final guidelines’ enactment, and to the extent that Playter suggests otherwise,
we disavow it.10 Indeed, it is the very essence of the constitutional protection against
ex-post-facto laws that a defendant like Utesch, who was charged with a criminal
violation, cannot be punished for conduct occurring before the criminal regulation of that
conduct. See U.S. Const. art. I, § 9, cl. 3; Weaver v. Graham, 450 U.S. 24, 31 (1981)
(“The critical question is whether the law changes the legal consequences of acts
completed before its effective date.”); Kellogg v. Shoemaker, 46 F.3d 503, 509-10 (6th
Cir. 1995) (holding that parole-revocation regulations violated the Ex Post Facto Clause
for prisoners who committed their offenses before the date of enactment).11 For these
reasons, the interim regulation’s procedural deficiencies were not harmless. As the final


         10
            It is worth noting that if the government’s argument carried any water, it would have required
a finding of harmless error—at least with respect to the failure to follow the notice-and-comment
procedure—in Cain itself, which was heard on April 28, 2009, after the final SMART regulations had gone
into effect. 583 F.3d at 408.
         11
            Even before SORNA, Congress had criminalized the failure of sex offenders to register in
accordance with state law in the Jacob Wetterling Crimes Against Children and Sexually Violent Offender
Registration Act. 42 U.S.C. § 14071. Under that statute, a violation was punishable by up to one year in
prison. § 14072(i). The retroactive application of SORNA, which makes failure to register punishable by
up to ten years of incarceration, would violate the Ex Post Facto Clause because SORNA increases the
punishment for a criminal act. See Collins v. Youngblood, 497 U.S. 37, 43 (1990).
No. 08-5828        United States v. Utesch                                       Page 15


SMART guidelines had not become effective by the time of Utesch’s indictment, the
district court’s order must be reversed.

                                 III. CONCLUSION

       Because the first properly promulgated regulation making SORNA retroactive
became effective eight-and-a-half months after the final date covered by Utesch’s
indictment, the district court should have dismissed the indictment. Accordingly, we
REVERSE the district court’s denial of Utesch’s motion to dismiss the indictment, and
we VACATE his conviction and sentence. We therefore do not reach Utesch’s
constitutional challenges to SORNA or his objections to the special conditions of release
imposed by the district court.
