from the United States District Court for the Western
District of Texas
JONES, SMITH, and PRADO, Circuit Judges.
E. SMITH, Circuit Judge
Shepherd appeals the denial of his 28 U.S.C. § 2255
motion. Because his guilty plea was rendered involuntary by
ineffective assistance of counsel ("IAC"), we
reverse and grant the motion.
exposed himself to two minor girls in Arizona in 2002.
Arizona charged him with one count of indecent exposure to a
minor (Count 1-a class six felony) and one count of public
sexual indecency to a minor (Count 2-a class five felony).
Under a plea agreement, Count 1 was dismissed, and Shepherd
pleaded guilty to an amended Count 2.
exact nature of the amended charge is disputed. Shepherd was
originally charged with the class five felony of
"[p]ublic sexual indecency to a minor."
See Ariz. Rev. Stat. Ann. § 13-1403(c)
(emphasis added). Conversely, general "[p]ublic sexual
indecency is a class 1 misdemeanor." Ariz. Rev. Stat.
Ann. § 13-1403(c). The plea agreement, however,
described the charge as "Count 2, Amended, Attempted
Public Sexual Indecency, a class 6 designated
felony, in violation of A.R.S. 13-1403, . . . 13-1001 . .
." Section 13-1403 is titled "Public
sexual indecency; public sexual indecency to a minor;
classification, " and Arizona punishes
"attempt" offenses as one class below the completed
offense. See Ariz. Rev. Stat. Ann. §
13-1001(c). The amended charge does not indicate that "a
minor under the age of fifteen years was present, " and
the classification of the offense changed. Shepherd was given
a suspended sentence of 230 days and lifetime
probation and was required to register as a sex
his 2003 conviction, Shepherd moved to Nevada. In 2006, he
exposed himself to two girls (ages unknown) in Nevada and was
charged with "INDECENT EXPOSURE, a violation of N.R.S.
201.220, a felony." In 2007, Shepherd pleaded guilty and
was sentenced to 12 to 34 months and was required under
Nevada law to register for life as a sex offender.
moved to Texas in 2011 but did not register as a sex
offender. In 2012, Nicholas Rose, a Deputy U.S.
Marshal Criminal Investigator, was notified by police that
Shepherd was an unregistered sex offender. According to
Rose, he "checked the Texas DPS website that has a list
of all registered sex offenders in Texas and Adam Shepherd
was not listed." He then requested Shepherd's
documents of conviction from Arizona and Nevada and contacted
the Texas Department of Public Safety ("DPS"). Upon
review, DPS stated, "Only the AZ offense would require
registration . . . ."
was arrested in June 2012 and indicted the next month. He was
charged with "knowingly fail[ing] to register and update
his registration as required by the Sex Offender Registration
and Notification Act, [a]ll in violation of Title 18 United
States Code, Section 2250(a)." Shepherd acknowledged
that he had been living in Texas since 2011 and that he had
not registered because he believed he was not required to
register under Texas law.
entered a plea of "not guilty" and filed an
"Unopposed Motion to Continue." Counsel indicated
that he had "recently received discovery" and
needed "[a]dditional time . . . so that [he] may review
discovery with Mr. Shepherd as well as confer with Assistant
United States Attorney Tracy Thompson." The court
granted the motion in September 2012, and later that month
Shepherd pleaded guilty.
plea hearing, the magistrate judge requested the government
provide the factual basis for the offense. The government
responded that "[i]f this case proceeded to trial . . .
the Government would prove" that Shepherd was convicted
in Arizona and Nevada for indecent exposure and that
"[b]oth of those convictions qualify Mr. Shepherd as a
sex offender under the Sex Offender Registration and
Notification Act." Further, the government claimed it
would prove that "at no time did Mr. Shepherd register
as a sex offender anywhere in the state of Texas." When
questioned, Shepherd stated that he understood and agreed
with the government's factual basis.
December 19, 2012, the district court sentenced Shepherd to
twenty-four months of imprisonment, thirty years of
supervised release, and a $100 special assessment. Shepherd
challenged the supervised release on appeal, and we affirmed.
See United States v. Shepherd, 542 Fed.Appx. 346
(5th Cir. 2013).
being released from prison, Shepherd attempted to register as
a sex offender in Texas. But DPS informed him that he did not
have a duty to register based on either his Arizona or Nevada
conviction. Shepherd thus filed a motion to vacate his
sentence per 28 U.S.C. § 2255 in October
2014. He claims that he is not currently, nor
ever was, under a legal duty to register in Texas and that
his trial attorney was ineffective for failing to make that
request to show cause by the magistrate judge, Shepherd
submitted a letter dated January 6, 2015, from Randy Ortega,
the managing attorney for the crime records service
department of DPS. Ortega stated that he reviewed the Arizona
and Nevada convictions, and "[he] do[es] not see that
[Shepherd] has a duty to register as a sex offender for
either case, as the elements of these offenses as disposed
are not substantially similar to a Texas Reportable
Conviction . . . ." Ortega testified that "[he is]
the attorney currently who makes the determinations"
concerning sex offender registration.
then explained that before August 30, 2012, DPS utilized a
different method to determine whether an out-of-state offense
was substantially similar to a reportable Texas
offense. Under the old method, DPS looked both to
the elements of and the facts underlying the out-of-state
offense. On August 30, 2012, however, the Texas Third Court
of Appeals issued a decision in Texas Department of
Public Safety v. Anonymous Adult Texas Resident, 382
S.W.3d 531 (Tex. App.-Austin 2012, no pet.), repudiating that
method. Anonymous Adult restricts DPS to comparing
only the elements of an out-of-state offense with the
elements of a Texas reportable offense. Id. at 535.
The facts generally cannot be reviewed.
regard to Shepherd's Arizona conviction, Ortega explained
that DPS originally reviewed the underlying facts and
determined "the facts . . . [were] substantially similar
to behavior that would otherwise be qualified as a
report-able conviction." So "there may have been a
prior duty" to register under the old method, but under
the current method, where the facts cannot be considered,
Shepherd is not required to register. Ortega viewed the
Arizona conviction as "attempted public sexual
indecency, " which does not correlate to any reportable
Texas offense. He agreed that "because the offense
[Shepherd] pled to removed the word 'minor' from the
conviction title, " Shepherd "no longer would have
to register." The ambiguity of the plea document in
regard to the offense caused him to "err[ ] on the side
of caution" and "g[i]ve the defendant the benefit
of the doubt." Further, Ortega testified that if asked
on August 31, 2012, whether Shepherd had a duty to register,
he likely would have said no.
the recommendation of the magistrate judge, the district
court denied Shepherd's § 2255 motion, reasoning
"that the DPS erred in concluding in January 2015 that
Shepherd was not required to register" because
"Ariz. R.S. § 13-1403 is substantially similar to
Texas Penal Code § 21.11." Shepherd v. United
States, Civil Action No. SA-12-CR-643-XR, 2015 WL
5163401, at *3 (W.D. Tex. Sept. 1, 2015). The court granted a
certificate of appealability on (1) whether Shepherd's
plea was rendered involuntary by "his lack of knowledge
about DPS' change in position . . . that his Arizona
conviction did not, after all, require that he report"
and (2) whether Shepherd was actually innocent of the federal
Offender Registration and Notification Act
("SORNA"), Title I of the Adam Walsh Child
Protection & Safety Act, requires "[a] sex offender
[to] register, and keep the registration current, in each
jurisdiction where the offender resides . . . ." 34
U.S.C. § 20913(a). "SORNA makes it a federal crime
for anyone required to register as a sex offender to travel
in interstate commerce and knowingly fail to register or
update his or her registration." United States v.
LeTourneau, 534 F.Supp.2d 718, 720 (S.D. Tex. 2008)
(citing 18 U.S.C. § 2250(a)). "A defendant is
subject to SORNA's provisions if (i) he or she has a
state law sex offense requiring registration as a sex
offender; (ii) then travels in interstate commerce; and (iii)
knowingly fails to register or update his or her registration
as required by state law." Id. (citing 34
U.S.C. §§ 20911, 20912, 20913).
out-of-state sex offender is required to register in Texas if
his offense falls within the requirements of Texas Code of
Criminal Procedure Chapter 62. The DPS determines whether an
out-of-state offense is substantially similar to a reportable
Texas offense so as to require the out-of-state offender to
register. Tex. Crim. Proc. Code Ann. § 62.003(a). A
conviction of indecency with a child is a Texas offense
requiring registration. Id. § 62.001(5)(A).
both raises a freestanding claim of actual innocence and
challenges the validity of his guilty plea. "[O]ur
caselaw does not recognize freestanding actual innocence
claims, " United States v. Fields, 761 F.3d
443, 479 (5th Cir. 2014), so we review only the validity of
appeal of the denial of a § 2255 motion, we review the
district court's factual findings for clear error and its
legal conclusions de novo. United States v.
Underwood, 597 F.3d 661, 665 (5th Cir. 2010). The
district court's determinations concerning
ineffective-assistance claims are reviewed de novo, as are
its rulings concerning the voluntariness of a guilty
longstanding test for determining the validity of a guilty
plea is 'whether the plea represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant.'" "The conditions for
a valid plea require, among other things, that the defendant
have notice of the charges against him, understand the
constitutional protections waived, and have access to the
advice of competent counsel." Shepherd asserts that his
plea was rendered involuntary on "two closely related,
yet legally distinct grounds": (1) IAC and (2) "the
fact that neither he, nor any of the parties― including
the District Court―were aware that he was no longer
required to register under Texas law." Because we
ultimately agree with Shepherd on the first ground, we do not
address the second.
as here, a defendant is represented by counsel during the
plea process and enters his plea upon the advice of counsel,
the voluntariness of the plea depends on whether
counsel's advice 'was within the range of competence
demanded of attorneys in criminal
cases.'" The decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides the
appropriate standard for assessing
"ineffective-assistance claims arising out of the plea
process." Hill, 474 U.S. at 57. "First,
the defendant must show that counsel's performance was