Case: 15-50991 Document: 00514324820 Page: 1 Date Filed: 01/26/2018 REVISED January 26, 2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals No. 15-50991 Fifth Circuit FILED January 26, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellee, versus ADAM DANIEL SHEPHERD, Defendant–Appellant. Appeals from the United States District Court for the Western District of Texas Before JONES, SMITH, and PRADO, Circuit Judges. JERRY E. SMITH, Circuit Judge: Adam 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. Case: 15-50991 Document: 00514324820 Page: 2 Date Filed: 01/26/2018 No. 15-50991 I. Shepherd 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. The exact nature of the amended charge is disputed. Shepherd was orig- inally charged with the class five felony of “[p]ublic sexual indecency to a minor.” See ARIZ. REV. STAT. ANN. § 13-1403(c) (emphasis added). 1 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 . . .” 2 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 1The indictment stated that Shepherd “intentionally or knowingly engaged in an act of sexual contact and was reckless about whether a minor under the age of fifteen years was present, in violation of A.R.S. § 13-1403 . . .” The Court Information Sheet specified, “COUNT 2: PUBLIC SEXUAL INDECENCY TO A MINOR, A CLASS 5 FELONY.” 2The Arizona order suspending Shepherd’s sentence also states, “OFFENSE: Amended Count II: Attempted Public Sexual Indecency Class 6 Felony . . . .” 2 Case: 15-50991 Document: 00514324820 Page: 3 Date Filed: 01/26/2018 No. 15-50991 lifetime probation 3 and was required to register as a sex offender. 4 After 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.” 5 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. Shepherd moved to Texas ...
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