                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-2467
                                     _____________

                            UNITED STATES OF AMERICA

                                             v.

                                    KEVIN DIMPFL,
                                                 Appellant.
                                     _____________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (Crim. No. 11-cr-00002-1)
                        District Judge: Honorable Arthur Schwab
                                     _____________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 10, 2013

               Before: SCIRICA, AMBRO, and FUENTES Circuit Judges

                               (Opinion Filed: April 3, 2013)
                                     _____________

                               OPINION OF THE COURT
                                   _____________

FUENTES, Circuit Judge:

       Kevin Dimpfl appeals the district court’s denial of his motion to withdraw a plea

of guilty for failing to register as a sex offender under the Sex Offender Registration and

Notification Act (“SORNA”) of 2006, Pub. L. No. 109-248, 42 U.S.C. § 16901 et seq.

Dimpfl argues that the district court should have permitted him to withdraw his guilty


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plea in light of the Supreme Court’s decision in United States v. Reynolds, 132 S. Ct. 975

(2012) (“Reynolds I”), and the remand of Reynolds to this Court. We disagree and will

affirm the district court’s judgment.

                                             I.

       We set forth only the facts relevant to our resolution of this appeal.

       Among other things, SORNA makes it a federal crime for qualifying individuals

to move to a new jurisdiction without registering as a sex offender with proper law

enforcement authorities. See 18 U.S.C. § 2250 (2006). SORNA became effective on

July 27, 2006, but delegated to the Attorney General the responsibility to determine its

applicability to individuals who were convicted of sex offenses prior to that date. See 42

U.S.C. § 16913(d); Reynolds I, 132 S. Ct. at 984. On February 28, 2007, the Attorney

General issued an “Interim Rule,” specifying that SORNA’s registration requirements

applied to pre-SORNA offenders (the “Interim Rule”). See Applicability of the Sex

Offender Registration and Notification Act, 72 Fed. Reg. 8894, 8894-95 (proposed Feb.

28, 2007). The Interim Rule was issued without account of the notice-and-comment

period requirements of the Administrative Procedure Act (“APA”). See United States v.

Reynolds, No. 08-4747, __ F.3d__, 2013 WL 979058, at *3 (3d Cir. Mar. 14 2013)

(“Reynolds II”). On July 2, 2008, following a notice-and-comment period, the Attorney

General issued final guidelines retroactively applying the registration requirements (the

“Final Guidelines”). See National Guidelines for Sex offender Registration and

Notification, 72 Fed. Reg. 38030 (July 2, 2008).

       Dimpfl had pled guilty to forcible rape in New York State in 1998. Between


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March and May of 2010, he moved to Pennsylvania and failed to notify authorities of his

arrival. On December 15, 2011, Dimpfl pled guilty to one count of traveling in interstate

commerce and failing to register as a sex offender, in violation of 18 U.S.C. § 2250.

Section 2250 was applied to Dimpfl, a pre-SORNA sex offender, via the Final

Guidelines.

       Meanwhile, the Supreme Court had heard a case on writ of certiorari from this

Circuit regarding SORNA. At issue in Reynolds I was whether SORNA applied to pre-

SORNA offenders on its own terms, as we had held, see United States v. Reynolds, 380

Fed. Appx. 125 (3d Cir. 2012), or whether pre-SORNA offenders could only be

convicted pursuant to retroactivity rules issued by the Attorney General. On January 23,

2012, the Supreme Court agreed with the latter view, and remanded the case to this Court

for consideration of Reynolds’ additional argument regarding the legality of the Interim

Rule under which he had been convicted. See Reynolds I, 132 S. Ct. at 984. Namely,

Reynolds argued that the Interim Rule’s failure to comply with the APA rendered that

rule illegal. He argued in the alternative that SORNA’s delegation of authority to the

Attorney General to issue any rules governing SORNA’s retroactivity was an

unconstitutional delegation of authority by Congress.

       Following the Supreme Court’s ruling in Reynolds I, Dimpfl moved to withdraw

his guilty plea or postpone his sentence. Dimpfl appeared to argue that he believed a

ruling in the Reynolds I remand could possibly undermine the legal basis of his

conviction, positing that he may be “entitled to relief from the remand of Reynolds to the

Third Circuit.” See Appellant Br. at 5. The district court denied the motion. It noted that


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the Reynolds I remand involved the legality of the Interim Rule, but not the legality of the

Final Guidelines under which SORNA’s registration requirement had been applied to

Dimpfl. The district court ultimately sentenced Dimpfl to 15 months in prison, the

bottom of his guideline range. This appeal followed.

       On March 14, 2013, we decided in Reynolds II that the Interim Rule that was the

basis of Reynolds’ conviction was issued in violation of the APA. We therefore vacated

Reynolds’ conviction. Reynolds II did not involve the legality of the Final Guidelines,

nor did it address Reynolds’ argument that SORNA’s delegation of authority to the

Attorney General was unconstitutional.

                                             II.

       The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

       A criminal defendant may withdraw his guilty plea before sentencing if he “can

show a fair and just reason” to do so. Fed. R. Crim. P. 11(d)(2)(B). We have stated that

in ruling on a motion to withdraw a guilty plea, district courts must look at whether a

defendant asserts his innocence, at the strength of the reasons for the withdrawal, and at

the prejudice to the government. See, e.g., United States v. Siddons, 660 F.3d 699, 703

(3d Cir. 2011). We review a district court’s ruling on such a motion for abuse of

discretion. See id.

       In this appeal, Dimpfl argues that the district court abused its discretion in denying

his motion because “issues exist[ed] in [Reynolds] which could possibly benefit” him.

Appellant Br. at 3-4. He also states, however, that “the answer to this appeal is whether


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the Rule passed by the Attorney General which affects the Appellant’s case is under

scrutiny under the remand of Reynolds [I],” id. at 8, and that “[i]f the only rule under

scrutiny by this Court is the [Interim Rule], then the [district] Court was right in not

allowing [him] to withdraw his plea.” Id.

       As noted, the Final Guidelines that served as the basis for Dimpfl’s conviction

were not “under scrutiny” in Reynolds II. The only issue decided in Reynolds II related

to the legality of the Interim Rule. Accordingly, under Dimpfl’s own statement of the

issue for review, the district court correctly denied his motion to withdraw his guilty plea.

       In Reynolds II we did not address the constitutionality of SORNA’s delegation of

power to the Attorney General. A ruling for Reynolds on that question would have called

into question Dimpfl’s conviction. But Dimpfl himself does not argue that SORNA’s

delegation of power violates Article I of the Constitution. Nor did Dimpfl make such an

argument before the district court.

       Under these circumstances, we cannot say that the district court abused its

discretion in denying Dimpfl’s motion to withdraw his guilty plea.

                                             III.

       For the foregoing reasons, we will affirm the district court’s judgment.




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