UNITED STATES of America, Appellee, v. William Earl MEFFORD, Appellant, 463 F. App'x 605

PER CURIAM. Our previous opinion in this case, see United States v. Mefford, 417 Fed.Appx. 586 (8th Cir.2011) (unpublished per cu-riam), was vacated by the Supreme Court and remanded to us for reconsideration in light of Reynolds v. United States, 565 U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012). For the reasons discussed below, we remand to the district court for further proceedings. William Earl Mefford was convicted in Oklahoma in 1994 of sexual abuse of a minor.

On November 4, 2009, he was indicted and charged under the Sex Offender Registration and Notification Act (“SORNA”), 42 U.S.C. §§ 16901-16991, with failing to register as a sex offender after having traveled in interstate commerce, in violation of 18 U.S.C. § 2250. Mefford moved to dismiss the indictment on multiple grounds, one of which was that SORNA violates the nondelegation doctrine, see A.L.A. Schechter Poultry Corp. v.

United States, 295 U.S. 495, 529, 55 S.Ct. 837, 79 L.Ed. 1570 (1935), because it authorizes the Attorney General of the United States to determine the applicability of SORNA’s registration requirements to persons convicted of a predicate sexual offense prior to SORNA’s enactment. After the district court denied his motion to dismiss, Mefford entered a guilty plea conditioned on his right to appeal the denial, and we affirmed.

Applying our then-current precedent, we held that Mefford lacked standing for a nondelegation challenge because SORNA applied to pre-en-actment offenders who already had been required to register under state law, regardless of any rule-making by the Attorney General. See Mefford, 417 Fed.Appx. at 586-87.

In Reynolds, the Supreme Court held that SORNA did not become effective as to pre-enactment offenders until the Attorney General exercised “the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter....” 132 S.Ct. at 978 (quoting 42 U.S.C. § 16913(d)) (alterations and emphasis added in Reynolds). The Court remanded to the Third Circuit for consideration of the merits of the petitioner’s challenge to SORNA on nondelegation grounds. Id. at 980, 984.

Under Reynolds, Mefford also is entitled to have his nondelegation challenge addressed on the merits. See United States v. Fernandez, 671 F.3d 697, 697-98 (8th Cir.2012) (per curiam). Reynolds does not affect Mefford’s Commerce Clause and Due Process claims, see Fernandez, 671 F.3d at 698-99, and we reinstate our previous opinion as to those two claims. Accordingly, we remand to the district court for consideration of the nondelegation claim on the merits in the first instance, see id. at 697-98, and for other proceedings not inconsistent with this opinion. .

The petitioner in Reynolds also challenged on Administrative Procedure Act notice-and-comment grounds the validity of the Attorney General's interim rule of February 28, 2007, in effect when the petitioner's alleged SORNA violation occurred. See Reynolds, 132 S.Ct. at 979-80. Here, it is undisputed that Mef-ford failed to register in 2009, after the Attorney General had issued a final rule exercising the authority to apply SORNA's requirements to pre-SORNA offenders. See 73 Fed.Reg. 38030, 38046 (2008).

Therefore, unlike the petitioner in Reynolds, Mefford could not (and did not) assert any challenge to the interim rule.