United States v. Navarro ( 2022 )

Case: 19-50662 Document: 00516556298 Page: 1 Date Filed: 11/23/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 23, 2022
No. 19-50662
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
John David Navarro,
Defendant—Appellant.
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.
Jerry E. Smith, Circuit Judge: *
In 1998, John Navarro pleaded guilty of attempted sexual assault of a
minor in Colorado. In 2013, Navarro moved to Texas. In 2019, law enforce-
ment discovered that Navarro was not registered as a sex offender in Texas
*
Judge Haynes joins only in the judgment vacating the conviction and remanding
accordingly; she would have granted the government’s unopposed motion to vacate and
remand.
Case: 19-50662 Document: 00516556298 Page: 2 Date Filed: 11/23/2022
No. 19-50662
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 18 U.S.C. § 2250(a). He completed his term of imprisonment
but violated the terms of his supervised release twice and is serving an
11-month revocation sentence.
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 Colo-
rado. 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 nine-
teen at the time; his siblings were around six and eight. He pleaded guilty of
attempted sexual assault of a child under Colo. Rev. Stat. § 18-3-405(1998). He was sentenced to three years in prison, beginning July 22, 1998.
He served his term of imprisonment.
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 Janu-
1
Both the investigation preceding Navarro’s arrest in Texas and the factual basis
supporting his guilty plea averred that Navarro had been living and working in Odessa since
August 2015. ROA.90, 120. But Navarro separately stated that he moved to Odessa in late
2013. ROA.125.
2
Case: 19-50662 Document: 00516556298 Page: 3 Date Filed: 11/23/2022
No. 19-50662
ary 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 offense, the Marshals’ Office sought and
obtained an arrest warrant. Authorities discovered Navarro at a detention
center in Odessa, where he was being held on an out-of-state warrant from
Colorado. After he was transferred into federal custody, Navarro was in-
dicted on one count of failure to register as a sex offender under § 2250(a).
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 pre-
sentence 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 sen-
tenced 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 § 2250(a) conviction while he serves his term of
imprisonment. He asks this court to vacate the underlying conviction and
3
Case: 19-50662 Document: 00516556298 Page: 4 Date Filed: 11/23/2022
No. 19-50662
end his resultant revocation sentence.
II.
A guilty plea must be supported by a sufficient factual basis. Fed. R.
Crim. P. 11(b)(3). “[T]he factual conduct admitted by the defendant” must
be “sufficient as a matter of law to establish a violation of the statute to which
he entered his plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010)
(emphasis removed).
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); Fed. R. Crim. P. 52(b). We first analyze whether
the facts accompanying Navarro’s plea were sufficient to establish guilt under
§ 2250(a) “as a matter of law.” Trejo, 610 F.3d at 313 (emphasis removed).
Concluding the factual basis was insufficient, we then consider whether that
was plain error.
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.” § 2250(a)(1), (2)(A). Second, he must travel in inter-
state commerce. § 2250(a)(2)(B). Third, he must “knowingly fail[] to regis-
ter or update a registration as required by [SORNA].” § 2250(a)(3).
Navarro’s central contention is that he did not have a duty to register
as a sex offender under the first prong of § 2250(a). Yet our circuit has not
been precise about which law determines a sex offender’s duty to register.
Sex offender registries are governed by a combination of state and federal law,
and Texas and SORNA set different registration requirements. This case
requires us to decide whether SORNA (federal law) or Texas (state law)
defined Navarro’s duty to register.
4
Case: 19-50662 Document: 00516556298 Page: 5 Date Filed: 11/23/2022
No. 19-50662
Navarro maintains that both state and federal law are relevant. In his
view, § 2250(a) requires the government to prove that he had an obligation to
register under SORNA and under Texas law. In its initial briefing, the United
States did not contest that premise, insisting instead that both SORNA and
Texas law required Navarro to register. Yet after the briefs were filed (and
before oral argument), the United States conceded that Navarro had no
obligation to register under Texas state law.2 Because the government agreed
with Navarro’s framing that a state-law duty to register was a necessary com-
ponent of § 2250(a), it moved to vacate the conviction and remand; it moved
separately for an expedited ruling on the motion to vacate. Navarro—for
obvious reasons—did not oppose the motions. This panel carried both
motions with the case and heard oral argument as scheduled.
Despite the parties’ agreement that Navarro’s conviction should be
vacated, we are not bound to grant their requested relief on that basis.3 Nota-
bly, 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 § 2250(a) conviction. But that
2
Texas requires sex offenders to register with the state if their out-of-state crime of
conviction was “substantially similar” to a Texas sex offense. Tex. Code Crim. Proc.
arts. 62.001(5)(H), 62.051(a). Such sex offenders must register for life. Id. art. 62.101(a).
By contrast, offenders convicted of “attempt” of a reportable offense need only register for
10 years following their release from prison. See id. art. 62.101(b); 62.001(5)(G). Navarro’s
predicate sex offense was reportable in Texas, see ROA.279, but he pleaded guilty of
“attempted” sexual assault of a minor in Colorado. ROA.122, 230. He finished his prison
sentence for that crime in 2001. Id. Thus, his 10-year obligation to register ended in 2011,
years before he moved to Texas and long before he was arrested for failure to register as a
sex offender.
3
“A court is not bound by the parties’ stipulations of law, particularly when those
stipulations are erroneous.” King v. United States, 641 F.2d 253, 258 (5th Cir. Unit B
Mar. 1981).
5
Case: 19-50662 Document: 00516556298 Page: 6 Date Filed: 11/23/2022
No. 19-50662
conclusion does not follow from the statute and the caselaw. We write espe-
cially to clarify the law in this regard.
The government’s concession raises a narrow but nonetheless critical
issue of first impression for this circuit: Is a conviction under § 2250(a) in-
sufficient merely because the defendant had no duty to register as a sex
offender under state law?
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 admis-
sion 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
§ 2250(a) is determined by federal law. Section 2250(a) is clear about which
law applies—it incorporates SORNA by reference three separate times.4 It
states in no uncertain terms that individuals are guilty of the offense if they
are “required to register under [SORNA]” and fail to do so. § 2250(a).
SORNA, in turn, lays out a complex regime for who must register as a sex
offender and for how long, depending on the nature of an individual’s sex
offense. See 34 U.S.C. §§ 20911–15.
4
The threshold element of the crime is that the defendant was “required to register
under the Sex Offender Registration and Notification Act.” § 2250(a)(1) (emphasis added).
The individual must be “a sex offender as defined for the purposes of the Sex Offender Reg-
istration and Notification Act.” § 2250(a)(2)(A) (emphasis added). And he must “knowingly
fail[] to register or update a registration as required by the Sex Offender Registration and
Notification Act.” § 2250(a)(3) (emphasis added).
6
Case: 19-50662 Document: 00516556298 Page: 7 Date Filed: 11/23/2022
No. 19-50662
Yet the parties put a critical gloss on the statutory scheme. They insist
that an individual cannot be convicted under § 2250(a) unless he had both an
obligation to register as a sex offender under SORNA and an obligation to
register under state law.
That interpretation has no basis in the statutory text. Neither
§ 2250(a) nor SORNA refers to a state’s registration requirements. SORNA
applies to “sex offender[s],” a term defined by federal statute. See
§§ 20911(1), 20913(a). Those offenders are required to “register, and keep
the registration current, in each jurisdiction” where they “reside[].”
§ 20913(a). SORNA also specifies when the obligation to register begins and
when it ends, depending on what kind of sex crime the offender committed.
See §§ 20913(b), 20915. To put it another way: SORNA establishes of its
own force who must register, where they must register, and for how long they
must register. Failure to follow any of those rules is a federal crime.
§ 2250(a). A state may impose differing obligations on sex offenders, but that
has no impact on whether an individual is “required to register under
[SORNA].” Id.
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 § 20913(a). Navarro contends that
because individual states maintain their own registries, state law necessarily
controls whether an individual has an obligation to register.
Yet in § 20913(a), SORNA merely tells sex offenders where to register;
it does not give states the power to decide whether offenders must register as
a matter of federal law. If § 20913(a) really delegated such power to states—
or implicitly incorporated states’ registration requirements—it would obviate
the rest of SORNA’s registration scheme. It would mean that even where
SORNA required an individual to register for a period of years, if a state
7
Case: 19-50662 Document: 00516556298 Page: 8 Date Filed: 11/23/2022
No. 19-50662
imposed a lesser obligation on that offender (or even no obligation at all), he
would not violate SORNA and could not be convicted under § 2250(a).
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 § 2250(a) criminalizes a failure to register under SORNA,
SORNA mandates that sex offenders follow their respective states’ regis-
tration requirements.6 Again, however, SORNA does not merely direct sex
offenders to follow state law registration rules: It sets up its own requirements
for which sex offenders have to register and when. §§ 20911–15. It is incon-
ceivable that Congress would go to the trouble of devising SORNA’s elabor-
ate scheme only for a state’s weaker registration requirements to supplant the
federal ones.
Instead of the statutory text, the parties rely on United States v. Shep-
herd, 880 F.3d 734 (5th Cir. 2018) (Smith, J.). The Shepherd panel summar-
ized the requirements of § 2250(a) by stating that a “defendant is subject to
SORNA’s provisions if . . . he or she . . . knowingly fails to register or update
his or her registration as required by state law.” Id. at 740 (quoting United
States v. LeTourneau, 534 F. Supp. 2d 718, 720 (S.D. Tex. 2008)) (emphasis
added). The parties place all their weight on that final phrase. To them,
Shepherd means that a defendant has a duty to register as a sex offender for
the purposes of § 2250(a) only if state law requires him to register.
But Shepherd does not go as far as the parties say. First, the quoted
5
Oral Argument at 11:25, United States v. Navarro (No. 19-50662),
https://www.ca5.uscourts.gov/OralArgRecordings/19/19-50662_11-9-2022.mp3.
6
Id. at 4:15.
8
Case: 19-50662 Document: 00516556298 Page: 9 Date Filed: 11/23/2022
No. 19-50662
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 § 20913(a). Sex-offender registries are creatures of state
law. Therefore, “SORNA requires sex offenders to register with state-run
sex-offender registries and to keep their registrations current.” United States
v. Torres, 767 F.3d 426, 427 (5th Cir. 2014) (emphasis added). SORNA does
not, however, adopt states’ separate requirements for who must register and
when—SORNA sets its own rules for when sex offenders must register with
state authorities.
Second, and more importantly, Shepherd does not control this dispute
because it did not directly interpret the meaning of § 2250(a) or SORNA.
Though the defendant in Shepherd was convicted under § 2250(a), his appeal
was based on a 28 U.S.C. § 2255 motion that sought to invalidate his guilty
plea because of ineffective assistance of counsel. Shepherd, 880 F.3d at 737.
The court dealt only with the ineffective-assistance claim and explicitly
declined to determine whether Shepherd was actually innocent under
§ 2250(a). Id. at 740. In resolving the ineffective-assistance question, the
court emphasized that counsel in Shepherd was abnormally inept: He advised
the defendant to plead guilty, even though state caselaw suggested that the
defendant had no duty to register in the state. Id. at 741–43. The attorney
later testified that he would have advised his client to plead differently if he
had done further research. Id. at 743. The Shepherd court held that such
failure was ineffective assistance of counsel because it would have demon-
strably changed the attorney’s recommendation to plead guilty. Id. at 746.
Critically, this court did not hold that Shepherd’s conviction under
§ 2250(a) was invalid just because he had no duty to register under Texas
law—the question of actual innocence was left open. See id. There is thus no
Fifth Circuit precedent that justifies a departure from SORNA’s unambigu-
ous language.
9
Case: 19-50662 Document: 00516556298 Page: 10 Date Filed: 11/23/2022
No. 19-50662
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 § 2250(a) in a way that
makes certain that federal law determines whether an individual has a duty to
register as a sex offender under SORNA (not state law).7 Meanwhile, our sis-
ter circuits have consistently held that an individual can be convicted of fail-
ing to register under SORNA even if the state does not require him to regis-
ter.8 Similarly, in its most recent rulemaking, the Justice Department clari-
fied that “SORNA’s registration requirements are independent of state law
registration requirements,” so “SORNA requires sex offenders to register in
states whose own laws do not require registration by those offenders.”9
7
See Carr v. United States, 560 U.S. 438, 447 (2010) (Ҥ 2250(a) can only be satis-
fied when a person ‘is required to register under the Sex Offender Registration and Notifica-
tion Act.’” (quoting § 2250(a))); United States v. Montgomery, 966 F.3d 335, 337 (5th Cir.
2020) (noting that § 2250 criminalizes the failure to register under SORNA); see also United
States v. Gonzalez-Medina, No. 1:12-CR-830, 2013 WL 12098680, at *3 (S.D. Tex. Apr. 17,
2013) (“18 U.S.C. § 2250(a) . . . imposes a duty to register on sex offenders, regardless of
whether state law requires them to register or not.”), aff’d, 757 F.3d 425 (5th Cir. 2014).
8
Willman v. Att’y Gen., 972 F.3d 819, 824 (6th Cir. 2020) (“[F]ederal SORNA
obligations are independent of state-law sex offender duties.”), cert. denied, 141 S. Ct. 1269(2021); United States v. Del Valle-Cruz, 785 F.3d 48, 55 (1st Cir. 2015) (holding that
SORNA’s registration obligations do not depend on state registration requirements); United
States v. Billiot, 785 F.3d 1266, 1269 (8th Cir. 2015) (“SORNA imposes an independent
federal obligation for sex offenders to register that does not depend on, or incorporate, a
state-law registration requirement.”); United States v. Pendleton, 636 F.3d 78, 86 (3d Cir.
2011) (“[Defendant’s] federal duty to register under SORNA was not dependent upon his
duty to register under [state] law.”); cf. United States v. Taylor, 777 F.3d 434, 442–43 & n.4
(7th Cir. 2015) (describing how SORNA imposes registration obligations independent of
state law); United States v. Brown, 586 F.3d 1342, 1349 (11th Cir. 2009) (noting widespread
agreement that “a sex offender is not exempt from SORNA’s registration requirements
merely because the jurisdiction in which he is required to register has not yet implemented
SORNA”).
9
Registration Requirements Under the Sex Offender Registration and Notification
Act, 86 Fed. Reg. 69856, 69866 (Dec. 8, 2021).
10
Case: 19-50662 Document: 00516556298 Page: 11 Date Filed: 11/23/2022
No. 19-50662
In short, a § 2250(a) conviction imposes a duty to register under
SORNA. And SORNA sets federal registration requirements that are inde-
pendent of state law.10 Although we accept the government’s concession that
Navarro did not have a duty to register under Texas law, that has no bearing
on whether he had a duty to register under § 2250(a).
B.
Because Navarro was convicted for failing to register “under
[SORNA],” § 2250, we cannot vacate his conviction unless we determine
that he had no duty to register under SORNA. After carefully parsing our
precedents, we conclude that Navarro had no duty to register under SORNA
in 2019.
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 stat-
ute,11 Navarro had a duty to register beginning at the conclusion of his first
10
State law is relevant only in one narrow circumstance. If it is impossible for an
offender to register in the state in which he resides, either because that state lacks proper
procedures or does not allow that offender to register, then the offender has an affirmative
defense to a § 2250(a) charge. See 18 U.S.C. § 2250(c); 28 C.F.R. §§ 72.7(g)(2), 72.8(a)(2)
& ex. 2. Said another way, where an offender has a duty to register under SORNA in a given
state, he must register if it is possible for him to do so, regardless of whether the state requires
him to. There was no contention in this case, however, that it was impossible for Navarro
to register in Texas.
11
SORNA requires all “sex offender[s]” to register. § 20913(a). A “sex offender”
is defined broadly as “an individual who was convicted of a sex offense,” § 20911(1), while
a “sex offense” includes, among other things, a state or federal criminal offense “that has
an element involving a sexual act or sexual contact with another,” § 20911(5)(A)(i).
Navarro was convicted under Colo. Rev. Stat. § 18-3-405(1) (1998), an element of
which involves “knowingly subjecti[ng]” a child “to any sexual contact.” Because the state
offense has “sexual contact” as an element, Navarro committed a “sex offense” and is a
“sex offender” for the purposes of SORNA.
11
Case: 19-50662 Document: 00516556298 Page: 12 Date Filed: 11/23/2022
No. 19-50662
prison sentence. See § 20913(a)–(b); see also 28 C.F.R. § 72.7(a)(1). Navarro
was convicted of his predicate sex offense in July 1998. Given his three-year
sentence, his obligation to register began (at the latest) around July 2001.
2.
The more difficult issue is how long Navarro’s registration require-
ment 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 §§ 20911, 20915. A tier I offender must keep his registration cur-
rent for 15 years; a tier II offender must do so for 25 years; a tier III offender’s
registration obligation lasts for life. § 20915(a).
A defendant’s “tier” is dictated by the nature of his underlying of-
fense. Tier I is the baseline—all offenders who are not tier II or tier III offend-
ers are tier I offenders by default. § 20911(2). A tier II offender is an individ-
ual who, among other things, was convicted of an offense “against a minor”
that “is comparable to or more severe than” a list of enumerated federal
crimes. See § 20911(3). An offender is tier III if he is convicted of an offense
that “is comparable to or more severe than” a list of more egregious federal
sex crimes. See § 20911(4).
If Navarro was a tier II offender, then his 25-year registration obliga-
tion 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
12
The district court did not state this explicitly, but the court adopted the pre-
sentence report, which gave Navarro the recommended sentence of a tier II offender. See
ROA.121, 132; see also U.S.S.G. § 2A3.5(a)(2) & n.1.
12
Case: 19-50662 Document: 00516556298 Page: 13 Date Filed: 11/23/2022
No. 19-50662
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).”
§ 20911(3)(A)(iv) (emphasis added). “[A]busive sexual contact,” in turn, is
defined as any of six additional federal crimes. 18 U.S.C. § 2244(a). Two of
those six crimes are relevant here:
1. 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.
2. 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 (§ 2241(c))—his half-brothers were both younger than twelve when
he abused them—the United States asserts that Navarro’s predicate crime
was “comparable” to “abusive sexual contact” and was thus a tier II offense.
Though that approach is facially plausible, it is not how our circuit has
interpreted and applied SORNA. To determine whether an offender’s predi-
cate offense is “comparable” to a crime listed in SORNA, we use the “cate-
gorical approach” that is familiar to federal criminal law. United States v.
Escalante, 933 F.3d 395, 398 (5th Cir. 2019); United States v. Young, 872 F.3d
742, 745–46 (5th Cir. 2017).
Under the categorical approach, the specific circumstances of a defen-
dant’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
13
Case: 19-50662 Document: 00516556298 Page: 14 Date Filed: 11/23/2022
No. 19-50662
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. Colo. Rev. Stat. § 18-3-405(1) (1998).
The two relevant federal statutes criminalize slightly different conduct—
§ 2243(a) criminalizes sexual acts with a minor between the ages of twelve
and sixteen so long as the victim is at least four years younger than the
offender, and § 2241(c) prohibits all sexual acts with children younger than
twelve.
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 § 2243(a) because it criminalizes
sexual contact with children younger than twelve, while § 2243(a) only crim-
inalizes contact with children between twelve and sixteen years of age.
Meanwhile, the Colorado statute is broader than § 2241(c) because it covers
illicit sexual contact with twelve- to fourteen-year-olds, but § 2241(c) stops
before age twelve. In short, the Colorado statute “sweeps more broadly” than
13
Once a crime is judged to be “comparable” under the categorical approach, a
court may conduct a second “circumstance-specific inquiry” to decide whether the crime
of conviction was against a “minor” (the second requirement of SORNA’s tier II status).
See Escalante, 933 F.3d at 401–02 (citing § 20911(3)). But there is no dispute that Navarro
committed his crime against two minors. The contested question is whether the Colorado
statute of conviction is “comparable” to one of the federal crimes that can justify a tier II
offense. See § 20911(3)(A). To answer that question, we use the categorical approach.
14
Case: 19-50662 Document: 00516556298 Page: 15 Date Filed: 11/23/2022
No. 19-50662
either of the comparable federal statutes. Descamps, 570 U.S. at 261.14
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 consensual sexual activity with some-
one aged fourteen to fifteen. See id. at 397 n.3. The only federal crime in
SORNA’s tier II that was theoretically comparable was § 2243(a), which
criminalizes sex with twelve- to fifteen-year-olds. But the federal statute
“requires, as an element, that the government prove at least a four-year age
differential” between the offender and the victim. Escalante, 933 F.3d at 400.
In other words, “[T]he Utah statute criminalized consensual sexual activity
between an 18-year-old and a 15-year-old,” while the federal statute did not.
Id. at 401. Therefore, the court held that “under the categorical approach,
the Utah offense ‘sweeps more broadly’ than the comparable federal offense
and cannot serve as a proper predicate for a SORNA tier II sex offender
designation.” Id. at 402 (quoting Descamps, 570 U.S. at 261).
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, § 2243(a) criminalizes sex with
14
The United States makes a passing suggestion that Navarro may have been a
tier III offender because tier III includes sexual activity with children younger than thirteen.
But the same categorical analysis that applies to the tier II offense of sexual contact with a
child under twelve would apply to the tier III offense. Compare § 20911(3)(A)(iv) (incor-
porating 18 U.S.C. § 2244 (incorporating 18 U.S.C. § 2241(c))), with § 20911(4)(A)(ii).
Why those two nearly identical crimes are in separate tiers appears to be a confusing quirk
of SORNA—or perhaps a congressional oversight.
15
Case: 19-50662 Document: 00516556298 Page: 16 Date Filed: 11/23/2022
No. 19-50662
fifteen-year-olds where there is a four-year age gap between the participants
whereas the Colorado statute does not. Compare § 2243(a), with Colo.
Rev. Stat. § 18-3-405 (1998). But the state statute in Escalante was
narrower in the same sense—the relevant federal statutes criminalized some
conduct that the Utah statute did not. See Escalante, 933 F.3d at 397 n.3.
Nevertheless, Escalante held that the Utah statute swept “more broadly”
because it criminalized more conduct than the federal statute. Id. at 402 (quo-
tation omitted). Similarly, the Colorado statute criminalizes conduct that
neither § 2243(a) nor § 2241(c) criminalizes. That over-inclusiveness means
the statutes are not “comparable.” Escalante, 933 F.3d at 402.
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
§ 20911(3)(A)(iv)). After adopting the categorical approach, Judge Barrett
held that it was not. Id. at 580, 582. As in this case, the United States in
Walker suggested that the Colorado statute prohibited the same conduct as
did §§ 2243(a) and 2241(c). Id. at 582. Still, the court reasoned that “the
Colorado statute sweeps more broadly than § 2243(a) because it covers sexual
contact against some victims under 12, and § 2243(a) does not.” Id. Mean-
while, Colorado’s statute is broader than § 2241(c) because the state law
“covers some victims between the ages of 12 and 15, and § 2241(c) does not.”
Id. In other words, “a conviction under the Colorado statute doesn’t neces-
sarily satisfy the elements of either federal offense and so fails the categorical
analysis.” Id. The Seventh Circuit’s persuasive conclusion is equally applica-
ble here.
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 reg-
16
Case: 19-50662 Document: 00516556298 Page: 17 Date Filed: 11/23/2022
No. 19-50662
ister ended in 2016 and was no longer operative at the time of his indictment.
Therefore, Navarro could not be convicted of a § 2250(a) offense, and, as the
government now concedes (albeit for a different, flawed reason), the factual
basis supporting his guilty plea was insufficient as a “matter of law.” Trejo,
610 F.3d at 313.
IV.
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 pro-
ceedings.’” 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. § 2250(a). The
admitted facts were insufficient to establish his guilt as a matter of law. Trejo,
610 F.3d at 313; see also Fed. R. Crim. P. 11(b)(3).
Second, the error was “plain.” Greer, 141 S. Ct. at 2096. It is well-
established that this circuit takes a categorical approach to interpreting
17
Case: 19-50662 Document: 00516556298 Page: 18 Date Filed: 11/23/2022
No. 19-50662
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 pre-
cedential 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; Mont-
gomery, 966 F.3d at 338. Our most recent opinion made clear that any predi-
cate 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 Col-
orado 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
defendant challenging the sufficiency of a guilty plea under Rule 11 must
show “a reasonable probability that, but for the error, he would not have
entered the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
15
See Young, 872 F.3d at 746 (“[I]n line with at least four other circuits, we follow
the categorical approach in determining whether [a state offense] is comparable to or more
severe than the generic crimes listed in 34 U.S.C. § 20911(4)(A).”); Escalante, 933 F.3d
at 398 (“We employ the categorical approach when classifying the SORNA tier of a defen-
dant’s state law sex offense.”); Montgomery, 966 F.3d at 338 (“Our court and others deter-
mine an offender’s SORNA tier by comparing the offense for which they were convicted
with SORNA’s tier definitions using the categorical approach.”).
18
Case: 19-50662 Document: 00516556298 Page: 19 Date Filed: 11/23/2022
No. 19-50662
It is hard to deny that Navarro would not have pleaded guilty if he had cor-
rectly 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 sen-
tencing of an actually innocent defendant.” See Olano, 507 U.S. at 736. We
accordingly conclude that the error is reversible.
* * *
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.
16
See United States v. Smith, 997 F.3d 215, 225 (5th Cir. 2021) (vacating a guilty plea
that was accepted by the district judge when the defendant was likely “innocent” of the
underlying crime).
17
Although Navarro’s current imprisonment is due to a revocation sentence, it was
based on a violation of a supervised release that was itself imposed because of his erroneous
§ 2250(a) conviction. See United States v. Navarro, 7:19-CR-35-1 (W.D. Tex. May 24, 2022),
ECF No. 82.
19