OPINION
John F. Utesch (“Utesch”) appeals the district court’s denial of his motion to dismiss his indictment for violating the Adam Walsh Sex Offender Registration and Notification Act of 2006 (“SORNA” or “the Act”), Pub.L. 109-248. Utesch pleaded guilty after reserving his right to challenge the Act and its application to him on constitutional and other grounds. The district court sentenced him to three months of incarceration and ten years of supervised release.
On appeal, Utesch argues that (1) SOR-NA cannot apply to him without violating the Ex Post Facto and Due Process Clauses because the three states among which he moved have not implemented the Act; (2) his conviction violates due process because the government failed to notify him of his obligation to register under the Act; (3) SORNA’s grant of authority to the Attorney General to make the Act retroactive violates the nondelegation doctrine; (4) the Attorney General’s regulation making SORNA retroactive violated the Administrative Procedure Act (“APA”); (5) SORNA’s application under 18 U.S.C. § 2250(a)(2)(A) violates the Commerce Clause; (6) SORNA’s application under 18 U.S.C. § 2250(a)(2)(B) violates the Commerce Clause and Ex Post Facto Clause; and (7) SORNA violates the Tenth Amendment by requiring states to implement its provisions. Utesch also challenges the district court’s imposition of certain special conditions of supervised release on the grounds that they are not reasonably related to the 18 U.S.C. § 3553(a) sentencing factors, they involve greater deprivation than necessary to achieve the purposes of sentencing, and they are inconsistent with policy statements of the U.S. Sentencing Commission. As explained below, we REVERSE the district court’s order based on the failure of the Attorney General’s retro-activity regulation to conform to the requirements of the APA. Accordingly, we do not reach Utesch’s constitutional challenges, and we need not address his conditions of release.
I. BACKGROUND
A. Factual Background
In 1997, Utesch pleaded guilty to assault with intent to commit sexual abuse of a fourteen-year-old girl, an aggravated misdemeanor, under Iowa Code Ann. §§ 708.1 and 709.11. He was sentenced to 365 days in prison, which was reduced to 30 days, *305 and one year of supervised release. Iowa law classified him as a sex offender and required registration for ten years after his release. Specifically, state law required him to verify his address and phone number annually, to provide notice of any change of address within five days of moving, and to provide notice of compliance with the registration laws of any other state to which he moved within five days of moving.
Utesch registered in Iowa in September 1997, November 1998, April 1999, April 2000, and November 2001. In October 2002, he moved to Virginia and registered as a sex offender there.
United States v. Utesch,
No. 2:07-CR-105,
From October 2002 to July 2004, Utesch worked at a business located in Tennessee, commuting from Virginia from the period of October to December 2002, when he moved to Tennessee. From July 2004 to August 2005, he was self-employed as a carpenter. From September 20, 2005 to at least November 28, 2007 (the date of his arrest), he worked at KVA-T Food Stores in Bristol, Virginia, just across the Tennessee border. Utesch therefore “traveled in interstate commerce from his residence in Tennessee to his workplace in Virginia on a regular basis, at least weekly.” Supp. Stip. of Facts at 2 (Document 22).
B. Procedural Background
On November 13, 2007, Utesch was named in a one-count indictment charging him with failure to register or update his registration under Iowa law from September 1, 2006 to November 12, 2007, as required by SORNA, in violation of 18 U.S.C. § 2250(a) and 42 U.S.C. §§ 16911, 16913. He was arrested on November 28, 2007, after which he registered in Tennessee for the first time and in Iowa for the first time since 2001. Utesch filed a motion to dismiss the indictment, and the government responded in opposition. While the motion was pending, the parties entered into a plea agreement under which Utesch reserved the right to appeal the district court’s ruling on his motion to dismiss.
The district judge referred the motion to dismiss to a magistrate judge for a report and recommendation, and the magistrate judge held a hearing on February 7, 2008. Following the hearing, the parties submitted a supplemental stipulation of facts detailing Utesch’s residency and employment history and the dates of his interstate travel. On February 14, 2008, the magistrate judge issued a report recommending denial of Utesch’s motion. After receiving an objection from Utesch and a response from the government, the district judge adopted the report and recommendation in full on March 6, 2008.
See Utesch,
At a hearing on March 17, 2008, the district court accepted Utesch’s guilty plea. Following the filing of a presentence report, the submission of memoranda from both parties, and a hearing on June 16, 2008, the district court varied downward from the Guidelines range of 10 to 16 months and sentenced Utesch to three months in prison and ten years of supervised release.
*306 The district court imposed ten special conditions of supervision, including the following five that Utesch challenges on appeal: (1) sex offender mental health treatment as directed by the probation officer; (2) no contact with the victim of his underlying 1997 sex offense without the prior written consent of the probation officer; (3) no possession of photographs or recorded material for the purpose of sexual arousal; (4) submission of his person, vehicle, residence, and other areas over which he exercises control to search for such material; and (5) no access to computers with an internet connection without the probation officer’s prior written consent. Utesch objected to the special conditions. He timely filed a notice of appeal on June 27, 2008.
II. ANALYSIS
A. Standard of Review
In reviewing a motion to dismiss an indictment, we review the district court’s legal conclusions de novo and its findings of fact for clear error or abuse of discretion.
United States v. Grenier,
B. Overview of SORNA
Congress enacted SORNA to create a national system for the registration of sex offenders. 42 U.S.C. § 16901. Section 16913 provides in relevant part that “[a] sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student.” § 16913(a). As part of keeping the registration current, an offender “shall, not later than 3 business days after each change of name, residence, employment, or student status, appear in person in at least 1 jurisdiction involved pursuant to subsection (a)” and report the relevant changes. § 16913(c). Section 16913 also explains the requirements for sex offenders registering for the first time. § 16913(b). It further provides that
[t]he Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b) of this section.
§ 16913(d). 1
SORNA makes it a crime to violate its registration requirements. The Act provides that a person who is (1) “required to register under” SORNA, 2 (2) “travels in interstate or foreign commerce” or is a sex offender under federal, tribal, D.C., or U.S. territorial law, and (3) “knowingly fails to register or update registration as required by [SORNA] shall be fined” and/or imprisoned for up to ten years. 18 U.S.C. § 2250(a).
SORNA became effective on July 27, 2006. On February 28, 2007, U.S. Attorney General Alberto Gonzales issued an immediately effective interim rule applying SORNA “to all sex offenders, including sex offenders convicted of the offense for *307 which registration is required prior to the enactment of [the] Act.” 28 C.F.R. § 72.3. The Attorney General promulgated this regulation without notice and comment and without a thirty-day advance publication of its final form, disposing of these requirements based on the “good cause” provisions of the APA, 5 U.S.C. § 553(b)(B), (d)(3). See 72 Fed. Reg. 8894, 8896. At the same time, the Attorney General stated that comments would be accepted until April 30, 2007. Id. at 8895.
On May 30, 2007, the Attorney General published proposed comprehensive guidelines for SORNA, referred to as the “SMART” guidelines after the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking. 72 Fed. Reg. 30,210. The preliminary guidelines reiterated that “SORNA’s requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act.” Id. at 30,212. Comments were to be accepted through August 1, 2007. Id. at 30,210.
On July 2, 2008, the Attorney General issued the final SMART guidelines. 73 Fed. Reg. 38,030. Therein, he responded to objections to SORNA retroactivity, id. at 38,031, 38,036, and included the retroactivity provision in the final regulations, id. at 38,046-47. The regulations stated their effective date as July 2, 2008. Id. at 38,-030. For the reasons explained below, infra note 8, we understand the regulations to have become effective thirty days after their publication, on August 1, 2008. See 5 U.S.C. § 553(d).
C. Retroactive Application of SORNA to Utesch
The federal courts of appeal are divided over whether SORNA by its own terms applies to sex offenders who were convicted prior to SORNA’s enactment. The Eighth and Tenth Circuits have held that it does, reading § 16913(d) as conferring on the Attorney General only the limited power of providing a method for previously convicted offenders to comply with SORNA’s registration requirements despite the fact that their states may not have required them to register at all or as promptly as SORNA requires.
See United States v. May,
*308
Following the completion of briefing in this case, however, another panel of this court rejected the position advocated by the government. In
United States v. Cain,
Congress required immediate registration of all sex offenders convicted after SORNA, required the Attorney General to make rules for any offenders somehow not able to register with their jurisdiction despite SORNA’s implementation, and allowed the Attorney General to determine to what degree SORNA’s requirements should apply to offenders convicted before SORNA as well as what registration rules should apply to them.
Id. at 416. The issue, then, is whether there exists any valid regulation promulgated by the Attorney General pursuant to § 16913(d) that subjected Utesch to SOR-NA during the period covered by his indictment. There are three candidates: (1) the February 28, 2007 interim regulation, (2) the preliminary SMART guidelines issued on May 30, 2007, and (3) the final SMART guidelines issued on July 2, 2008.
The parties focus on the February 28, 2007 interim regulation. While that regulation stated that comments would be accepted until April 30, 2007, it became effective upon issuance.
(b) General notice of proposed rule making shall be published in the Federal Register, unless persons subject thereto are named and either personally served or otherwise have actual notice thereof in accordance with law. The notice shall include
(1) a statement of the time, place, and nature of public rule making proceedings;
(2) reference to the legal authority under which the rule is proposed; and
(3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose....
5 U.S.C. § 553. The purpose of this procedure is “to get public input so as to get the wisest rules,” to “ensure fair treatment for persons to be affected by regulations,” and “to ensure that affected parties have an opportunity to participate in and influence agency decision making at an early stage.”
Dismas Charities, Inc. v. U.S.
*309
Dep’t of Justice,
In issuing the interim regulation, the Attorney General certified that immediate effectiveness was necessary to eliminate uncertainty about the Act’s coverage and to ensure protection of the public without delay.
On the basis of
Cain,
it appears that the interim regulation cannot support retroac
*310
tivity in the instant case. We consider the possibility, however, that while the interim rule did not apply SORNA to the defendant in
Cain,
it may have applied the Act to Utesch. In
Cain,
the defendant was indicted on March 28, 2007, prior to the comments deadline of April 30, 2007 and less than thirty days after publication. The
Cain
court specifically took no position on the validity of an indictment charging a defendant after the close of the comment period and more than thirty days after publication of the rule — that is, a defendant in Utesch’s position.
We now hold that a defendant in Utesch’s position is not bound by the interim rule. While the thirty-day advance publication requirement is met here, such that Utesch had time to comply with the rule,
see Rowell v. Andrus,
We turn next to the comprehensive SMART guidelines, which were promulgated according to notice and comment procedures. The preliminary guidelines, which included a provision making SORNA retroactive,
see
At the time of Utesch’s indictment, then, there was no properly promulgated regulation in place applying SORNA to him retroactively. SORNA became effective against offenders convicted before its enactment thirty days after the final SMART guidelines were published: that is, on August 1, 2008. 8 Utesch’s failure to register and his interstate travel in this case took place well before that date. 9 Accordingly, the indictment should have been dismissed. See 5 U.S.C. § 706(2)(D) (“The reviewing court shall hold unlawful and set aside agency action, findings, and conclusions found to be without observance of procedure required by law.”).
At oral argument, the government raised one final argument that might salvage Utesch’s conviction. Citing
Playter v. Federal Aviation Administration,
No. 90-3420,
The APA requires us to take “due account ... of the rule of prejudicial error” before holding any agency action unlawful and issuing relief. 5 U.S.C. § 706. For three reasons, however,
Playter
does not require that we uphold Utesch’s conviction based on harmless error. First,
Playter
is an unpublished, per-curiam opinion that is not binding precedent.
See Bell v. Johnson,
Finally, the rule of harmless error cannot justifiably be applied on the facts of the instant case. As the Ninth Circuit has pointed out, a reviewing court must focus not merely on the ultimate rule but on the process of an administrative rulemaking; otherwise, an agency could always violate the APA’s procedural requirements based on the representation that it would have adopted the same rule had the proper process been followed.
Riverbend Farms, Inc. v. Madigan,
The publication of the final SMART guidelines does not alter the analysis. The fact that the Attorney General eventually made SORNA retroactive through legitimate means cannot sustain prosecution of an individual based on conduct committed long before the final guidelines’ enactment, and to the extent that
Playter
suggests otherwise, we disavow it.
10
Indeed, it is the very essence of the constitutional protection against ex-post
*313
facto laws that a defendant like Utesch, who was charged with a criminal violation, cannot be punished for conduct occurring before the criminal regulation of that conduct.
See
U.S. Const. art. I, § 9, cl. 3;
Weaver v. Graham,
III. CONCLUSION
Because the first properly promulgated regulation making SORNA retroactive became effective eight-and-a-half months after the final date covered by Utesch’s indictment, the district court should have dismissed the indictment. Accordingly, we REVERSE the district court’s denial of Utesch’s motion to dismiss the indictment, and we VACATE his conviction and sentence. We therefore do not reach Utesch’s constitutional challenges to SORNA or his objections to the special conditions of release imposed by the district court.
Notes
. Section 16913 also provides that states shall create state penalties with a maximum imprisonment term of more than one year for failure to register under SORNA. § 16913(e). This provision is not relevant to the case at bar.
. SORNA requires sex offenders to register, 42 U.S.C. § 16913, and defines "sex offender” as “an individual who was convicted of a sex offense,” § 16911(1).
. At oral argument, the government stated that it believed that the issues currently pending before the Supreme Court in Carr would not affect Utesch's case.
. In the context of a nondelegation challenge, the Second Circuit found it unnecessary to settle on one side of the debate.
United States v. Guzman,
. The notice-and-comment procedure is not required for (1) rules involving military or foreign affairs, (2) rules "relating to agency management or personnel or to public property, loans, grants, benefits, or contracts”; or (3) interpretative rules, policy statements, or agency procedural rules. 5 U.S.C. § 553.
. Prior to the
Cain
decision, the Sixth Circuit in an unpublished decision treated February 28, 2007 as the appropriate retroactivity date, made statements suggesting that SORNA might be retroactive on its own terms, and stated that § 16913(d) applies only to initial registration.
United States v. Samuels,
. The two other circuit courts to have ruled on the validity of the interim regulation under the APA have upheld it. In
United States v. Gould,
. Though the guidelines themselves provide an immediate effective date of July 2, 2008, the Attorney General provided no statement of reasons to establish "good cause” for disposing of the thirty-day publication requirement. See 5 U.S.C. § 553(d). Had the Attorney General provided a rationale similar to that accompanying its interim regulation, we likely would find it inadequate under the reasoning of
Cain.
. For an example of a case in which SORNA’s retroactive application was upheld because the relevant conduct happened after the final SMART guidelines became effective, see
United States v. Coleman,
No. 9-30-ART,
. It is worth noting that if the government’s argument carried any water, it would have required a finding of harmless error — at least with respect to the failure to follow the notice-and-comment procedure — in
Cain
itself, which was heard on April 28, 2009, after the final SMART regulations had gone into effect.
. Even before SORNA, Congress had criminalized the failure of sex offenders to register in accordance with state law in the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act. 42 U.S.C. § 14071. Under that statute, a violation was punishable by up to one year in prison. § 14072(i). The retroactive application of SORNA, which makes failure to register punishable by up to ten years of incarceration, would violate the Ex Post Facto Clause because SORNA increases the punishment for a criminal act.
See Collins v. Youngblood,