United States v. Lindon Roy Knutson

Filing

PER CURIAM OPINION FILED - THE COURT: RAYMOND W. GRUENDER, DUANE BENTON and BOBBY E. SHEPHERD (PUBLISHED) [3917427] [11-1975]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-1975
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United States of America,
Appellee,
v.
Lindon Roy Knutson,
Appellant.

*
*
* Appeal from the United States
* District Court for the District
* of Minnesota.
*
*
[PUBLISHED]
*
*
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Submitted: February 13, 2012
Filed: June 1, 2012
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Before GRUENDER, BENTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Lindon Roy Knutson was indicted for failing to register as a sex offender under
the Sex Offender Registration and Notification Act (SORNA). See 18 U.S.C. §
2250(a), (c); 42 U.S.C. §§ 16911, 16913. The district court1 denied his motion to
dismiss the indictment. Knutson entered a conditional guilty plea, reserving his right
to appeal that denial. On appeal, Knutson argues that SORNA violates the non-

The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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delegation doctrine of the United States Constitution, and the Administrative
Procedure Act. We affirm in part, reverse in part, and remand.
In 1974, Knutson was convicted of rape in Wisconsin. He was civilly
committed there on two occasions and eventually released in March 2009. Knutson
registered as a sex offender in Wisconsin. He later traveled to Minnesota. In
November 2009, he was arrested by a Minnesota sheriff for failure to register as a sex
offender. Released on bond, he failed to appear in court and was re-arrested for new
charges of sexual assault. He pled guilty to those charges in Minnesota state court.

On July 26, 2007, SORNA went into effect, requiring “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, ____ U.S. ____ , ____, 132 S.Ct. 975, 978-79,
(2012). Under SORNA, any person who (1) “is required to register under [SORNA],”
(2) “knowingly travels in interstate or foreign commerce,” and (3) “knowingly fails
to register or update a registration as required by [SORNA]” is guilty of a crime
punishable by fine and imprisonment for up to ten years. 18 U.S.C. § 2250(a); see 42
U.S.C. § 16913 (creating the registration requirement). SORNA delegates to the
Attorney General “the authority to specify the applicability of the requirements of
[SORNA] to sex offenders convicted before the enactment of [SORNA] or its
implementation in a particular jurisdiction, and to prescribe rules for the registration
of any such sex offenders.” 42 U.S.C. § 16913(d).

We review de novo the district court’s denial of Knutson’s motion to dismiss
the indictment. United States v. Howell, 531 F.3d 621, 622 (8th Cir. 2008). The
government argues that Knutson lacks standing to assert his non-delegation
arguments. This court had previously held that pre-Act offenders lack standing to
challenge SORNA. E.g., United States v. May, 535 F.3d 912, 921 (8th Cir.2008),
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abrogated in part by Reynolds,132 S.Ct. 975. However, after the parties filed their
briefs, the Supreme Court ruled that pre-Act offenders have standing to challenge
SORNA under the non-delegation doctrine. Reynolds, 132 S.Ct. at 984. We
therefore remand for the district court to consider this argument on the merits. See
United States v. Fernandez, 671 F.3d 697, 698 (8th Cir. 2012); United States v.
Mefford, No. 10-2131, 2012 WL 1059019, at *1 (8th Cir. Mar. 30, 2012); United
States v. Chronister, No. 11-3357, 2012 WL 1395633, at *1 (8th Cir. Apr. 23, 2012);
United States v. Sharp, No. 11-3562, 2012 WL 1382429, at *1 (8th Cir. Apr. 23,
2012).

Knutson also challenges the Attorney General’s interim rule as not satisfying
the notice-and-comment requirements of the Administrative Procedure Act. The
Attorney General issued this interim rule to extend SORNA “to all sex offenders,
including sex offenders convicted of the offense for which registration is required
prior to the enactment of [SORNA].” 72 Fed. Reg. 8894, 8897 (Feb. 28, 2007)
codified at 28 C.F.R. § 72.3. The Attorney General invoked the “good cause”
exception in order to dispense with the notice-and-comment procedure of the APA,
giving immediate effect to the interim rule. See 72 Fed. Reg. at 8896-97. 5 U.S.C.
§ 553(b)-(d).

Three months later, the Attorney General published proposed “guidelines to
interpret and implement SORNA.” 72 Fed. Reg. 30,210 (May 30, 2007). After
public comment, the final version of these “SMART” Guidelines was published in
July 2008. See 73 Fed. Reg. 38,030 (July 2, 2008). The SMART Guidelines
reaffirmed the interim rule applying SORNA to pre-Act offenders. Id. at 38,030 &
38,046. On January 28, 2011, the Attorney General promulgated a final regulation
mirroring the interim rule. 75 Fed. Reg. 81,849-50 (Dec. 29, 2010).

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The petitioner in Reynolds challenged the interim rule as violating the noticeand-comment requirements of the APA. Reynolds, 132 S.Ct. at 979-80. Responding
to that challenge, the Supreme Court held that SORNA’s “registration requirements
do not apply to pre-Act offenders until the Attorney General so specifies,”
withholding judgment whether the interim rule is valid. Id. at 984. Knutson attacks
the interim rule, but it does not apply to him. Knutson pled guilty to failure to
register under SORNA for the period from August 1, 2009 through November 24,
2009–after the final rule became effective. He does not assert that the final rule is
defective under the APA. Knutson cannot challenge the interim rule. See Mefford,
2012 WL 1059019, at *1 n.1; United States v. Stevenson, 676 F.3d 557, 565-66 (6th
Cir. 2012).

Accordingly, we affirm in part, reverse in part, and remand for further
proceedings consistent with this opinion.
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