           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 7, 2009
                                     No. 08-50284
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

RYAN ANTHONY ARMS,

                                                   Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                              No. 3:07-CR-2797-ALL




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Ryan Arms was on probation for violating federal drug laws. The district
court modified the terms of probation, ordering Arms to register as a sex offen-



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                   No. 08-50284

der under Texas law based on two previous state convictions of indecent expos-
ure. On appeal, Arms argues that the court (1) lacked subject matter jurisdic-
tion to make the state law determination, (2) failed to make sufficient findings
about the modified terms of probation, and (3) erred in determining that he had
a second conviction of indecent exposure requiring registration under state law.
Additionally, Arms collaterally attacks his prior indecent exposure convictions,
urging that charging his conduct as two counts violated the Fifth Amendment’s
Double Jeopardy Clause. Rejecting each contention, we affirm.


                                         I.
      Arms pleaded guilty in the Central District of California of one count of
conspiring to distribute and possess with intent to distribute controlled sub-
stances and one count of conspiring to launder money. He was sentenced to a
six-month home detention program and a three-year term of probation. Shortly
afterward, Arms’s supervision was transferred to the Western District of Texas.
      On February 1, 2008, Arms’s probation officer filed a Petition for Warrant
or Summons for Offender Under Supervision. The officer stated that she had in-
formed Arms that he had a duty to register as a sex offender in Texas in light of
two state convictions of indecent exposure occurring on December 4, 2002. Arms
refused to register. The probation officer then asked that the terms of probation
be modified to add a requirement that Arms register as a sex offender, undergo
a sex offender evaluation, and participate in a sex offender treatment program
if directed to do so by his probation officer.
      Pursuant to 18 U.S.C. § 3563(c), the district court held a hearing on the
probation officer’s request. After briefing by both parties, the district court de-
termined that Arms was required to register as a sex offender under Texas law
and issued an order modifying the terms of probation to that effect. It is that or-
der that Arms appeals.

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                                   No. 08-50284

                                         II.
      Arms contends that the district court lacked subject matter jurisdiction to
determine whether he was required to comply with the Texas sex offender regis-
tration statute. A jurisdictional claim may be raised for the first time on appeal,
and we review it de novo. Paulsson Geophysical Serv. Inc. v. Sigmar, 529 F.3d
303, 306 (5th Cir. 2008).
      Arms argues that the court was without the power to order the registra-
tion, because Texas has not implemented the Sex Offender Registration and No-
tification Act (“SORNA”) and because Arms has not been convicted of a sex of-
fense under 18 U.S.C. § 4042(c)(4). See U.S.S.G. § 5B1.3(a)(9). Basically, Arms’s
position is that he is not required to register as a sex offender as a matter of fed-
eral law, so a federal court cannot order him to register. This position is unper-
suasive.
      A federal court has the power to add a state law requirement to a federal
defendant’s terms of probation. In United States v. Talbert, 501 F.3d 449, 452
(5th Cir. 2007), this court affirmed the imposition of a condition of supervised re-
lease that required the defendant to “register as a sex offender under state law
if required to do so.” Indeed, we said, “it is axiomatic that a district court can in-
clude as a condition that the defendant obey the law,” id., even a state law.
      The plain language of the sentencing guidelines contemplates as much.
Under U.S.S.G. § 5B1.3, it is a mandatory condition of probation “for any offense,
[that] the defendant shall not commit another federal, state or local offense.” See
also 18 U.S.C. § 3563(a)(1). The court retains jurisdiction to modify the condi-
tions of probation as need be through 18 U.S.C. § 3565(c), which by its terms in-
corporates “the provisions applicable to the initial setting of conditions of proba-
tion”SSthat is to say, 18 U.S.C. § 3563(a) and (b).
      To be sure, the district court went one step further than did the court in
Talbert. Though the district court in Talbert was content to leave open the ques-

                                          3
                                      No. 08-50284

tion of state law, here the court resolved it. Yet Talbert hardly stands for the
proposition that the district court cannot resolve the state law question. Instead,
we noted, “presumably whether Talbert is required to register under state law
is a mechanical, straightforward questionSSone the court did not address merely
for lack of definitive information about Talbert’s prior sex related convictions
and state law.” Talbert, 501 F.3d at 453. Indeed, in Talbert we went so far as
to affirm the district court’s decision to delegate to the probation officer the au-
thority to determine whether state law required the defendant to register. Id.
       Arms nevertheless contends that the district court did not have the au-
thority to make the state law determination. But in United States v. Teran, 98
F.3d 831, 836 (5th Cir. 1996), we upheld a district court’s revocation of probation
based on the defendant’s commission of an offense of which he had been acquit-
ted in state court. The district court in Teran made an independent determina-
tion, based on state law, that the defendant had committed the offense by a pre-
ponderance of the evidence. Implicit in our Teran holding is the recognition that
a federal district court can make conclusions of state law as part of its broad
power to make federal parole determinations.1


                                            III.
       In a similar vein, Arms contends that the district court erred by implicitly
concluding that registration was a mandatory probation requirement. Specifi-
cally, he argues that U.S.S.G. § 5B1.3(a)(9) does not mandate registration, be-
cause his state convictions were not defined sex offenses and because Texas has
not adopted SORNA. Arms maintains that, as a result, the district court could
order sex offender registration only as a discretionary probation condition and


       1
         See also 18 U.S.C. §§ 3563(a) (power to impose mandatory probation conditions);
3563(b) (power to impose discretionary probation conditions); 3563(c) (power to modify proba-
tion conditions); 3565 (power to revoke probation).

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                                    No. 08-50284

thus only after considering the factors in 18 U.S.C. § 3553(a). See 18 U.S.C.
§ 3563(b); U.S.S.G. § 5B1.3(b).
      Because the record shows that Arms never challenged the district court’s
basis for imposing the probation condition, we review for plain error. See Tal-
bert, 501 F.3d 449, 452 (5th Cir. 2007) (supervised release). Plain error arises
where “(1) there was an error; (2) the error was clear and obvious; and (3) the er-
ror affected the defendant’s substantial rights.” United States v. Villegas, 404
F.3d 355, 358 (5th Cir. 2005). This court does not exercise its discretion to cor-
rect the error unless it “seriously affects the fairness, integrity, or public reputa-
tion of judicial proceedings,” id. at 359, and “result[s] in a miscarriage of justice,”
United States v. Surasky, 974 F.2d 19, 21 (5th Cir. 1992); United States v. Lopez,
923 F.2d 47, 50 (5th Cir. 1991). Arms does not make the requisite showing.
      Although Arms is correct that his prior offenses did not warrant registra-
tion under one particular mandatory probation condition, U.S.S.G. § 5B1.3(a)(9),
that is not the only possible mandatory condition. As noted above, a probationer
also must “not commit another federal, state or local offense” during the term of
probation. U.S.S.G. § 5B1.3(a)(1); see also 18 U.S.C. § 3563(a). An individual re-
quired to register who fails to comply commits a state felony. T EX. C ODE C RIM.
P ROC. A NN. art. 62.102(a), (b)(1) (Vernon 2009). And under Texas law, a prosecu-
tion may proceed if the defendant has received actual notice or a reasonable
probability of noticeSSsuch as the probation officer’s statement to ArmsSSof a du-
ty to register under the sex offender statute. See Varnes v. State, 63 S.W.3d 824,
830-32 (Tex. App.SSHouston [14th Dist.] 2001, no writ).
      Even were it not for § 5B1.3(a)(1), the district court’s discretionary modifi-
cation of Arms’s probation conditions pursuant to U.S.S.G. § 5B1.3(b) would sat-
isfy plain error review. Indeed, the fact that a defendant was not sentenced for
a sexual offense or even has no history of sexual convictions does not necessarily
prohibit a court from requiring registration. See United States v. Ybarra, 289 F.

                                          5
                                  No. 08-50284

App’x 726, 732-33 (5th Cir.), cert. denied, 129 S. Ct. 751 (2008). Plainly, given
Arms’s criminal past, the district court was within its discretion to do so here.
      Arms complains, though, that the record does not reveal a need for regis-
tration and that the court did not make a specific finding that registration was
necessary pursuant to the § 3553(a) factors. He is correct that the court must
consider those factors before imposing a discretionary probation condition. See
U.S.S.G. 5B1.3(b), 18 U.S.C. § 3563(b). He also accurately states that the district
court did not make any explicit § 3553(a) findings.
      This is, however, plain error review. In United States v. Mondragon-Santi-
ago, 564 F.3d 357, 363-64 (5th Cir. 2009), cert. denied, 2009 U.S. LEXIS 6109
(U.S. Oct. 5, 2009), the defendant challenged, under the plain-error standard,
the sufficiency of the court’s reasons for imposing a sentence. This court con-
cluded that, although the district court’s reasons were insufficient and amounted
to clear or obvious error, there was no reversible plain error, because the defen-
dant’s substantial rights were not affected. Id.
      Similarly, Arms has not shown that the lack of more detailed reasons for
ordering the probation condition affected his substantial rights, because there
is no indication that a more thorough explanation by the court would have re-
sulted in a conclusion that the condition was not necessary. Arms thus has not
established that the failure to provide additional reasons is plain error.


                                       IV.
      Arms contends that the district court erred in determining that he had a
second conviction for indecent exposure and so was required to register as a sex
offender under Texas law. Article 62.051(a) of the Texas Code of Criminal Pro-
cedure states, “A person who has a reportable conviction or adjudication or who
is required to register as a condition of parole, release to mandatory supervision,
or community supervision shall register . . . .” A “reportable conviction” is de-

                                        6
                                   No. 08-50284

fined, in relevant part, as a “second violation of Section 21.08 (Indecent expos-
ure), Penal Code, but not if the second violation results in a deferred adjudica-
tion.” T EX. C ODE C RIM. P ROC. A NN. art. 62.001(5)(F) (Vernon 2009). The word
“second” is undefined in the statute.
       Arms argues that the district court misconstrued the word “second” in the
definition of reportable convictions. Applying what he calls a plain-language
reading of article 62.001(5)(F), he argues that the reference to a “second” viola-
tion necessarily implies the existence of a distinct “first,” which means there
must be a sequence of convictions. Although Arms points to no cases to support
his definition, he does turn to a number of secondary sources. It is hardly sur-
prising to learn that, for instance, Black’s Law Dictionary at one point defined
“second” as “denot[ing] either sequence in time or inferiority,” B LACK’S L AW D IC-
TIONARY    1064 (2d ed. 1910), or that Webster’s College Dictionary defines it, in
part, as “next after the first . . . .” W EBSTER’S N INTH N EW C OLLEGIATE D ICTION-
ARY 1060   (1984). After all, that is a reasonable interpretation. But it is not the
only one.2 And, unfortunately for Arms, it is not the one that Texas courts have
chosen to make.
       To interpret the Texas statute, the district court turned properly to state
law. Concluding that there were no higher Texas authorities that had weighed
in on the subject, the court cited Fuller v. State, 194 S.W.3d 52, 53 (Tex. App.SS
Fort Worth 2006, pet. ref’d), for the proposition that “any second conviction for
indecent exposure is a reportable conviction” irrespective of whether the convic-
tions occurred in sequential order. Confronted with Arms’s two convictions for
indecent exposure, the district court found the state registration statute applica-
ble.
       Arms appears to be correct that the facts in Fuller do not mirror exactly

       2
        See, e.g., RANDOM HOUSE DICTIONARY OF THE ENG LISH LANG UAG E 1288 (unabridged
ed. 1967) (defining “second” as “being one of two equal parts”).

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                                       No. 08-50284

the facts in his previous indecent exposure convictions. We say “appears” be-
cause Arms’s failure to create a sufficient record in this case leaves some of the
facts about those previous convictions shrouded in mystery. The facts in Fuller,
too, are not as pellucid as they could be.
       But we do know in Fuller that the defendant’s two separate public inde-
cency convictions at least occurred on the same day.3 Perhaps they also occurred
as part of the same incident, as Arms alleges his did; it is not discernable from
the opinion. Nevertheless, the court went on to explain its reasoning: “The fact
that the legislature chose not to include language in article 62.01(5) [now
62.001(5)] that would require convictions to occur in a specified order demon-
strates a clear legislative intent not to require the State to prove that the con-
victions occurred in sequential order or that they arose from separate transac-
tions.” Id.
       Although the district court could not treat Fuller as a definitive statement
of Texas law,4 in the absence of controlling opinions from higher authorities it
was free to turn to a lower state court opinion for guidance on how the state’s
highest court would rule.5 Arms cannot point to a single Texas state opinion
that conflicts with the reasoning in Fuller or even that calls it into question. In-
deed, quite the contrary is the case: The reasoning in Fuller has already been
followed by another Texas court.6 The district court did not err in turning to


       3
         See Fuller, 194 S.W.3d at 53 (“Nothing in the statute requires that when two or more
convictions occur on the same day, as did the convictions at issue, they must occur in sequen-
tial order for one of the convictions to qualify as the second conviction.”).
       4
        St. Paul Fire & Marine Ins. Co. v. Convalescent Servs., Inc., 193 F.3d 340, 342 (5th
Cir. 1999); Transcontinental Gas v. Transp. Ins. Co., 953 F.2d 985, 988 (5th Cir. 1992).
       5
       , Matheny v. Glen Falls Ins. Co., 152 F.3d 348, 354 (5th Cir. 1998); Green v. Walker,
910 F.2d 291, 294 (5th Cir.1990).
       6
           See Mungia v. State, 2008 WL 2406140 (Tex. App.SSDallas 2008, no writ) (unpub-
                                                                            (continued...)

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                                       No. 08-50284

Fuller, which itself cited higher Texas authorities in reaching its conclusion, for
guidance on Texas law.


                                              V.
       Arms collaterally challenges his two 2002 indecent exposure convictions,
arguing that his conduct was charged as two counts in violation of the Fifth
Amendment’s Double Jeopardy Clause. Because Arms failed to provide the court
with a record sufficient enough to consider his previous convictions, United
States v. Sullivan, 227 F. App’x 380, 381 (5th Cir. 2007), he has not made a pri-
ma facie nonfrivolous double jeopardy claim and has not demonstrated plain er-
ror. See United States v. Delgado, 256 F.3d 264, 270 (5th Cir. 2001).
       The judgment is AFFIRMED.




       6
         (...continued)
lished) (citing Fuller’s treatment of article 62.001(5)(F) in construing similar language in ar-
ticle 62.101(a)(3)).

                                               9
