UNITED STATES OF AMERICA, Plaintiff—Appellee, v. JOHN DAVID NAVARRO, Defendant—Appellant.
No. 19-50662
United States Court of Appeals for the Fifth Circuit
November 23, 2022
Appeal from the United States District Court for the Western District of Texas USDC No. 7:19-CR-35-1
Before SMITH, BARKSDALE, and HAYNES, Circuit Judges.
In 1998, John Navarro pleaded guilty of attempted sexual assault of a minor in Colorado. In 2013, Navarro moved to Texas. In 2019, law enforcement discovered that Navarro was not registered as a sex offender in Texas and arrested him. Navarro pleaded guilty of failing to register as required by the federal Sex Offender Registration and Notification Act (“SORNA“), a crime under
Navarro claims that his guilty plea for failing to register as a sex offender was insufficient as a matter of law because in 2019 he did not have an obligation to register as a sex offender. Agreeing, we vacate the conviction and remand.
I.
Over twenty years ago, Navarro was convicted of a sex offense in Colorado. State police received disturbing reports from child services in October 1997 and, after investigating further, they arrested Navarro on the suspicion that he had engaged in sexual contact with his two younger half-brothers. Once he was in custody, he waived his Miranda rights and signed a confession. Navarro admitted that he inappropriately touched his half-brothers’ genitals and pressured one of them to perform sexual acts on him. Navarro was nineteen at the time; his siblings were around six and eight. He pleaded guilty of attempted sexual assault of a child under
In 2013, Navarro moved to Odessa, Texas.1 At no point did he register as a sex offender with the county sex registration office or otherwise. In January 2019, a Deputy U.S. Marshal was notified that Navarro was living and working in the state. After confirming that Navarro had been convicted in Colorado of a criminal sexual
With the advice of counsel, Navarro entered a voluntary guilty plea before a magistrate judge. The plea was accompanied by a short, one-page document laying out the factual basis for the plea. The document noted Navarro‘s conviction for a sex offense, his move to Texas, and his failure to register with the state. The district court accepted his guilty plea.
At sentencing, the court adopted the recommendations in the presentence report. According to the report, Navarro‘s base offense level was 14, which applies “if the defendant was required to register as a Tier II offender” under SORNA. U.S.S.G. § 2A3.5(a)(2) & n.1. Combining that base offense level with Navarro‘s criminal history, the guideline range was 15–21 months’ imprisonment and 5 years’ supervised release. The court sentenced Navarro to 21 months and to 5 years of supervised release.
Navarro filed a timely notice of appeal, but COVID extensions and issues with Navarro‘s appellate counsel delayed briefing and oral argument. In the meantime, Navarro completed his prison sentence.
Since then, Navarro has violated the terms of his supervised release twice. The second violation occurred in 2022, when he failed to participate in a required sex offender treatment program. In May 2022, he was given an 11-month revocation sentence with no supervised release. He continues to challenge his original
II.
A guilty plea must be supported by a sufficient factual basis.
Because Navarro challenges the basis of his guilty plea for the first time on appeal, we review for plain error. See United States v. Escajeda, 8 F.4th 423, 426 (5th Cir. 2021);
III.
Section 2250(a) has three elements. First, an individual must be a “sex offender” who is “required to register under the Sex Offender Registration and Notification Act.”
Navarro‘s central contention is that he did not have a duty to register as a sex offender under the first prong of
Navarro maintains that both state and federal law are relevant. In his view,
Despite the parties’ agreement that Navarro‘s conviction should be vacated, we are not bound to grant their requested relief on that basis.3 Notably, the United States has not abandoned its position that Navarro had a duty to register as a sex offender under SORNA. Instead, it contends that even if Navarro was obligated to register under SORNA, the fact that he had no state-level duty to register is sufficient to vacate a
The government‘s concession raises a narrow but nonetheless critical issue of first impression for this circuit: Is a conviction under
We conclude that the answer to the question is “no.” Section 2250(a) makes criminal the failure to register under the federal SORNA. States are free to impose stronger or weaker registration requirements on sex offenders, but whether an individual complies with state law has no bearing on whether he has discharged his SORNA obligations. Thus, the United States‘s admission that Navarro had no duty to register under state law is not enough to render his conviction ipso facto invalid.
A.
Whether a person has an obligation to register as a sex offender under
Yet the parties put a critical gloss on the statutory scheme. They insist that an individual cannot be convicted under
That interpretation has no basis in the statutory text. Neither
Navarro points out that SORNA does not create a national sex offender registry and, instead, requires offenders to register in the state in which they live, work, or study. See
Yet in
Indeed, the parties all but concede that their view makes SORNA‘s registration requirements superfluous. The United States represented at oral argument that if state registration requirements are different from the federal ones, the state requirements “trump[].”5 So too, Navarro‘s counsel agreed that even though
Instead of the statutory text, the parties rely on United States v. Shepherd, 880 F.3d 734 (5th Cir. 2018) (Smith, J.). The Shepherd panel summarized the requirements of
But Shepherd does not go as far as the parties say. First, the quoted language is accurate in the narrow sense that sex offenders must register in the state where they reside, work, or go to school—that much SORNA says. Compare id., with
Second, and more importantly, Shepherd does not control this dispute because it did not directly interpret the meaning of
Critically, this court did not hold that Shepherd‘s conviction under
The weight of additional authority confirms our limiting reading of Shepherd. In direct appeals of SORNA convictions, both our court and the Supreme Court have articulated the requirements of
In short, a
B.
Because Navarro was convicted for failing to register “under [SORNA],”
1.
There is no dispute that Navarro initially fell within the ambit of SORNA. Because he was a “sex offender” within the meaning of the statute,11 Navarro
2.
The more difficult issue is how long Navarro‘s registration requirement lasted. SORNA divides the universe of sex offenders into three “tiers,” and the length of an offender‘s duty to register depends on his assigned “tier.” See
A defendant‘s “tier” is dictated by the nature of his underlying offense. Tier I is the baseline—all offenders who are not tier II or tier III offenders are tier I offenders by default.
If Navarro was a tier II offender, then his 25-year registration obligation would have run from 2001 to 2026, and he would have been required to register in Texas in 2019. But Navarro contends that he was a tier I offender. If he is correct, then his 15-year registration obligation would have expired in 2016, three years before he was federally indicted for failure to register.
The district court treated Navarro as a tier II offender.12 Recall that an offender qualifies as tier II if his sex offense was “committed against a minor” and “is comparable to or more severe than” a list of federal crimes, including, “abusive sexual contact (as described in section 2244 of Title 18).”
18 U.S.C. § 2243(a) , which criminalizes “knowingly engag[ing] in a sexual act” with a “minor” who is at least twelve but not yet sixteen, so long as the victim is at least four years younger than the perpetrator.18 U.S.C. § 2241(c) , which prohibits “knowingly engag[ing] in a sexual act with another person who has not attained the age of 12 years.”
Because Navarro‘s conduct would satisfy the second of those two federal offenses (
Though that approach is facially plausible, it is not how our circuit has interpreted and applied SORNA. To determine
Under the categorical approach, the specific circumstances of a defendant‘s crime are irrelevant. All that matters is whether the elements of the state crime match the elements of the federal crime. Descamps v. United States, 570 U.S. 254, 260–61 (2013). If the state crime “sweeps more broadly” than the federal offense, it is not comparable and, therefore, cannot be a predicate offense. United States v. Montgomery, 966 F.3d 335, 338 (5th Cir. 2020) (quoting Descamps, 570 U.S. at 261). A crime “sweeps more broadly” when it criminalizes more conduct than the federal crime would reach by its terms. See id.13
Using the categorical approach, we readily conclude that Navarro‘s Colorado statute of conviction is broader than either of the federal crimes listed in tier II of SORNA. Navarro‘s crime of conviction proscribes sexual contact with a child younger than fifteen, so long as the offender is at least four years older than the victim.
There is some overlap between those statutes, as the government points out. Nevertheless, under the categorical approach, overlap is not enough. Colorado‘s statute is broader than
Our conclusion follows directly from Escalante, in which this court held that a Utah sex offense was not “comparable” to any of the federal crimes in SORNA‘s tier II. 933 F.3d at 400–01. Escalante was convicted under a Utah statute that criminalized
This case presents the same situation—by criminalizing conduct that the federal statutes do not, Colorado‘s statute sweeps too broadly to serve as a predicate SORNA offense.
Escalante also rebuts the government‘s contention that Navarro‘s crime is “comparable” to a tier II offense because it is narrower than some of the offenses listed in SORNA. Namely,
Navarro‘s claim finds additional support in United States v. Walker, 931 F.3d 576 (7th Cir. 2019) (Barrett, J.). Walker was convicted under the same Colorado statute as Navarro and failed to register after he was released. Id. at 578. The Seventh Circuit had to decide whether the Colorado statute was “comparable” to any of the offenses in SORNA‘s tier II. Id. (quoting
In sum, Navarro had no federal duty to register as a sex offender in 2019. He was a tier I offender under SORNA, and so his 15-year duty to register ended in 2016 and was no longer operative at the time of his indictment. Therefore, Navarro could not be convicted of a
Our final consideration is whether Navarro‘s faulty conviction is “plain error.” To succeed under plain-error review, a defendant must establish four things. First, the district court must err. Greer v. United States, 141 S. Ct. 2090, 2096 (2021). Second, the error must be “plain,” id., “clear[,] or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). Third, “the error must affect ‘substantial rights,’ which generally means that there must be ‘a reasonable probability that, but for the error, the outcome of the proceeding would have been different.‘” Greer, 141 S. Ct. at 2096 (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904–05 (2018)). Finally, “[i]f those three requirements are met, an appellate court may grant relief if it concludes that the error had a serious effect on ‘the fairness, integrity or public reputation of judicial proceedings.‘” Id. at 2096–97 (quoting Rosales-Mireles, 138 S. Ct. at 1905).
Even though plain error is an exacting standard, see, e.g., United States v. Young, 470 U.S. 1, 15 (1985), all four elements are met here.
First, the district court erred. Greer, 141 S. Ct. at 2096. Navarro did not have an obligation to register “under [SORNA]” in 2019.
Second, the error was “plain.” Greer, 141 S. Ct. at 2096. It is well-established that this circuit takes a categorical approach to interpreting SORNA‘s tiers.15 Nevertheless, the district court treated Navarro as a tier II offender without any meaningful comparison of the state and federal statutes.
The government suggests that the categorical approach to comparing SORNA offenses may not have been evident to the district court at the time it accepted Navarro‘s guilty plea. See United States v. Olano, 507 U.S. 725, 734 (1993) (noting that a district court‘s mistake cannot be plain error if the law was unclear). Yet on plain-error review, we determine whether the law was “settled” based on the law at the time of the appeal, not the time of conviction. United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc). As of this appeal, the Fifth Circuit has stated, in at least three precedential opinions, that we use the categorical approach to compare offenses under SORNA. See Young, 872 F.3d at 746; Escalante, 933 F.3d at 398; Montgomery, 966 F.3d at 338. Our most recent opinion made clear that any predicate state offense that criminalizes more conduct than a related federal offense “sweeps more broadly” and therefore cannot be “comparable.” Montgomery, 966 F.3d at 338 (quotations omitted). In treating Navarro‘s Colorado conviction as a tier II offense, the district court departed from that established mandate.
Third, the error affects substantial rights. Greer, 141 S. Ct. at 2096. A
It is hard to deny that Navarro would not have pleaded guilty if he had correctly understood the tier of his predicate sex offense. Similarly, the district court would likely not have accepted the guilty plea if it had known Navarro had failed to satisfy the first element of the crime.16 Indeed, in Montgomery, this court held that the failure correctly to classify a defendant‘s tier under SORNA was “plain error” both because the correct tiering was “clear under current law” and because the mistake “resulted in [the defendant‘s] serving additional time in prison.” 966 F.3d at 339. The same is true here.17
Finally, affirming Navarro‘s conviction would undermine the integrity of judicial proceedings by permitting the continued punishment of a man who is not guilty of the crime charged. See Greer, 141 S. Ct. at 2097. We have been instructed to “correct a plain forfeited error that causes the conviction or sentencing of an actually innocent defendant.” See Olano, 507 U.S. at 736. We accordingly conclude that the error is reversible.
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The judgment of conviction is VACATED. The motions carried with the case are DENIED as moot, and the case is REMANDED for the district court to ensure the termination of Navarro‘s revocation sentence and for any other proceedings not inconsistent with this opinion.