United States v. Bueno-Chavira ( 2023 )

Case: 22-50807 Document: 00516705994 Page: 1 Date Filed: 04/10/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-50807
Summary Calendar FILED
____________ April 10, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Gerardo Arturo Bueno-Chavira,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-210-1
______________________________
Before Davis, Duncan, and Engelhardt, Circuit Judges.
Per Curiam: *
Gerardo Arturo Bueno-Chavira appeals his sentence for illegal reentry
under 8 U.S.C. § 1326(a) and (b)(2). He raises two issues on appeal. First,
he argues that the district court erred by entering judgment against him under
8 U.S.C. § 1326(b)(2). Second, he avers that § 1326(b) is unconstitutional
because it permits a sentence above the otherwise-applicable statutory
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50807
maximum based on facts not charged or proved beyond a reasonable doubt.
In response, the Government has filed two unopposed motions to reform the
judgment and for summary affirmance in part.
As to whether the district court erred by entering judgment against
Bueno-Chavira under § 1326(b)(2), review is for plain error because he did
not raise this issue in the district court. United States v. Rodriguez-Flores, 25
F.4th 385, 387 (5th Cir. 2022). To prevail on plain error review, he must
show that there was (1) an error, (2) that is clear or obvious, and (3) that
affected his substantial rights. Id. “Once those three conditions have been
met, the court of appeals should exercise its discretion to correct the forfeited
error if the error seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Rosales-Mireles v. United States, 138 S. Ct. 1897,
1905 (2018) (internal quotation marks and citation omitted).
The district court clearly erred because Bueno-Chavira did not have
any prior qualifying aggravated felony convictions. Moreover, this error
affected his substantial rights because the erroneous judgment could have
collateral consequences. See United States v. Ovalle-Garcia, 868 F.3d 313, 314
(5th Cir. 2017). We also exercise our discretion to correct the error. See
Rodriguez-Flores, 25 F.4th at 390. Thus, the judgment must be reformed to
reflect the correct statutory subsection.
Regarding Bueno-Chavira’s second claim, the parties are correct that
this issue is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224(1998). See United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019);
United States v. Wallace, 759 F.3d 486, 497 (5th Cir. 2014). Summary
affirmance thus is appropriate. See Groendyke Transp., Inc. v. Davis, 406 F.2d
1158, 1162 (5th Cir. 1969).
Accordingly, the Government’s motion for summary affirmance as to
the Almendarez-Torres claim is GRANTED, the judgment is AFFIRMED
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No. 22-50807
as to that issue, and the Government’s alternative motion for an extension of
time to file a brief is DENIED. In addition, the Government’s motion to
remand is GRANTED, and we REMAND to the district court for the
limited purpose of reforming its judgment to reflect Bueno-Chavira’s
conviction and sentencing under 8 U.S.C. § 1326(b)(1). The Government’s
alternative request that we reform the judgment on appeal is DENIED.
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