UNITED STATES of America, Appellee, v. Norman S. CARAWAY, Defendant-Appellant, 473 F. App'x 88

SUMMARY ORDER This case returns to us following an order of the United States Supreme Court vacating our decision affirming the August 5, 2010, judgment of the United States District Court for the Western District of New York (Arcara, J.), sentencing Defendant-Appellant Norman S. Caraway to 46 months’ imprisonment for failure to meet the requirements of the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. § 16901 et seq. See Caraway v. United States, — U.S. -, 132 S.Ct. 1909, 182 L.Ed.2d 766 (2012), vacating United States v.

Caraway, 431 Fed.Appx. 49 (2d Cir.2011), and remanding the case for further consideration in light of Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012).

On remand, Caraway argues that the Attorney General’s interim regulation (the “Interim Regulation”) of February 28, 2007, providing that “[t]he requirements of [SORNA] apply 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), was promulgated in violation of the Administrative Procedure Act (“APA”) because the Attorney General did not establish “good cause” to dispense with the APA’s notice and publication requirements.

We assume the parties’ familiarity with the underlying facts and procedural history of the case. Even assuming, arguendo, that Caraway did not waive his APA challenge to the Interim Regulation in his plea agreement, which preserved his right to appeal only those issues raised in his motion to dismiss the indictment, our review is for plain error only, see United States v.

Miller, 263 F.3d 1, 4 (2d Cir.2001) (“Issues not raised in the district court ... will be deemed forfeited on appeal and addressed only upon a showing that the [district] court committed plain error.”). “[U]nder plain error review, [Caraway] must demonstrate not only that there was an error that is clear or obvious, but also that the error affected [his] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and the error seriously affectfs] the fairness, integrity or public reputation of judicial proceedings.” United States v.

Williams, 684 F.3d 315, 323, 2012 WL 2616387, at *7 (2d Cir.2012) (alteration in original and internal quotation marks omitted). We do not find that the district court’s failure to consider sua sponte the issue of whether the promulgation of the Interim Regulation violated the APA was “plain” error. There have been no decisions in our Circuit on this issue, and our sister Circuits are divided. Compare United States v.

Valverde, 628 F.3d 1159, 1168 (9th Cir.2010) (concluding that the “Attorney General committed a clear error of judgment in failing to consider the factors relevant for seeking to bypass the APA’s notice and comment requirement”), with United States v. Dean, 604 F.3d 1275,1281 (11th Cir.2010) (determining that “the public safety argument advanced by the Attorney General is good cause for bypassing the notice and comment period”). Therefore, we conclude that any possible error in the application of the Interim Regulation to Conaway is not “plain” error. See United States v.

Gore, 154 F.3d 34, 42-43 (2d Cir.1998) (noting difficulty of proving plain error where this circuit has not spoken on an issue and there is a split in other circuits). Caraway argues that plain error review is inappropriate here because he effectively raised the APA challenge before the district court when he argued that SOR-NA’s retroactive application to him violated the Ex Post Facto Clause. According to Caraway, “[a] necessary corollary to that argument and implication thereof is that the interim regulation here in issue ... did not cover Caraway’s offense conduct.” Appellant’s Supplemental Br. at 4-5.

Such a general statement regarding the retroactive affect of SORNA was insufficient to properly raise the APA challenge below, however. Moreover, we note that in Caraway’s opening brief on appeal, he conceded that plain error review should apply to his APA claim because this claim “was not raised below.” Appellant’s Br. at 20. Accordingly, we find this argument to be without merit. We have reviewed the parties’ remaining arguments and find them to be moot, waived, or without merit. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). The judgment of the district court is therefore AFFIRMED.