In US v. Utesch, No. 08-5828, the Sixth Circuit faced a challenge to the district court's denial of defendant's motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 (SORNA).
As stated in the decision: "On February 28, 2007, U.S. Attorney General Alberto Gonzalez 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. The Attorney General promulgated this regulation without notice and comment and without a thirty-day advance publication of its final for, disposing of these requirements based on the good cause provisions of the APA."
In reversing the conviction, the court held that the interim rule did not make SORNA effective against defendant or any other defendants convicted before SORNA's enactment, as the interim rule became effective immediately before any of the procedures were carried out as required by the APA. Moreover, 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, and such procedural deficiencies were not harmless.
