United States v. Juventino Mendoza Soto ( 2018 )

Case: 17-50354 Document: 00514738093 Page: 1 Date Filed: 11/27/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50354 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
November 27, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JUVENTINO MENDOZA SOTO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:14-CR-2369-1
Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
Juventino Mendoza Soto was convicted of attempted illegal reentry and
false personation in immigration matters. The district court sentenced him to
33 months in prison. He seeks to appeal his sentence. We may consider the
instant appeal even though Mendoza Soto failed to file a timely notice of appeal
because the Government has waived the issue. See United States v. Martinez,
496 F.3d 387, 388 (5th Cir. 2007).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 17-50354
Mendoza Soto argues that the district court erred in concluding that he
previously was removed after a conviction of an aggravated felony that merited
an adjustment under U.S.S.G. § 2L1.2(b)(1)(C). Because Mendoza Soto did not
raise this issue in the district court, we review the claim for plain error. See
United States v. Castañeda, 740 F.3d 169, 171 (5th Cir. 2013).
While Mendoza Soto focuses his argument on whether his prior Colorado
conviction for attempted second-degree kidnapping is an “aggravated felony,”
the record indicates that the district court enhanced his sentence pursuant to
§ 2L1.2(b)(1)(C) (2014) because he previously pleaded guilty to illegal reentry
after a conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a)
and (b)(2). That offense is an “aggravated felony” under § 2L1.2(b)(1)(C), and,
thus, merits the enhancement. See United States v. Piedra-Morales, 843 F.3d
623, 624-25 (5th Cir. 2016), cert. denied, 137 S. Ct. 1361 (2017); United States
v. Gamboa-Garcia, 620 F.3d 546, 548-49 (5th Cir. 2010). His previous Colorado
conviction, which was the predicate aggravated felony for his prior conviction
and sentence under § 1326(b)(2), is not subject to reconsideration. See Piedra-
Morales, 843 F.3d at 624-25; Gamboa-Garcia, 620 F.3d at 548-49.
Moreover, Mendoza Soto fails to show that the Colorado conviction was
not an “aggravated felony.” He specifically has not shown that the conviction
does not meet the residual definition of “crime of violence” in 18 U.S.C, § 16(b).
His claim that the residual definition is unconstitutionally vague and, thus, no
enhancement under § 2L1.2(b)(1)(C) (2014) can be applied under that provision
lacks merit. See United States v. Godoy, 890 F.3d 531, 540 (5th Cir. 2018).
Mendoza Soto also suggests that the district court improperly sentenced
him under § 1326(b)(2). This claim is unavailing because his prior conviction
for illegal reentry following a conviction for an aggravated felony rendered him
subject to § 1326(b)(2). See Gamboa-Garcia, 620 F.3d at 548. However, while
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Case: 17-50354 Document: 00514738093 Page: 3 Date Filed: 11/27/2018
No. 17-50354
he was sentenced pursuant to § 1326(b)(2), the judgment of conviction states
only that he was convicted of violating § 1326. Thus, the case is remanded
pursuant to Federal Rule of Criminal 36 for the limited purpose of correcting
the clerical error in the judgment to reflect that Mendoza Soto was convicted
and sentenced under § 1326(a) and (b)(2), rather than § 1326.
AFFIRMED; LIMITED REMAND TO CORRECT JUDGMENT.
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