United States v. Huerta-Rodriguez ( 2023 )

Case: 21-50875 Document: 00516692766 Page: 1 Date Filed: 03/28/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 28, 2023
No. 21-50875
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Josue De Jesus Huerta-Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-2852
Before Stewart, Willett, and Oldham, Circuit Judges.
Don R. Willett, Circuit Judge:
Under federal immigration law, a noncitizen who unlawfully reenters
the United States is subject to a maximum prison term of 20 years if he was
previously deported “subsequent to a conviction for commission of an
Case: 21-50875 Document: 00516692766 Page: 2 Date Filed: 03/28/2023
No. 21-50875
aggravated felony.”1 But what constitutes an aggravated felony? And what if
what counted as aggravated yesterday is considered non-aggravated today?
Josue de Jesus Huerta-Rodriguez, a criminal noncitizen with a
burglary conviction and two subsequent illegal-reentry convictions, was
convicted of illegal reentry for a third time. The district court characterized
his burglary conviction as an aggravated felony. The district court also
characterized his two prior illegal-reentry convictions as aggravated felonies
under a statutory provision stating that illegal reentry is itself an aggravated
felony when committed by someone previously deported following an
aggravated-felony conviction. The designation “aggravated felony” is
significant because it subjects the alien to a maximum prison sentence of 20
years.
On appeal, Huerta argues that the district court mischaracterized his
past offenses because, under an intervening Supreme Court case, his
predicate burglary conviction no longer qualifies as an aggravated felony. He
insists the district court erred in sentencing him under § 1326(b)(2). Instead,
Huerta argues, the district court should have sentenced him under
§ 1326(b)(1), which imposes a 10-year maximum sentence when a defendant
has been removed subsequent to a non-aggravated felony. Importantly,
Huerta does not challenge the sentence itself, which is far below either the
10- or 20-year maximum; rather, he asks us to remand to the district court to
reform the judgment to clarify that he was sentenced under § 1326(b)(1)
rather than § 1326(b)(2).
We find Huerta’s arguments unavailing. Although his predicate
burglary offense may no longer qualify as an aggravated felony, the first of his
three intervening illegal-reentry convictions was correctly considered an
1
8 U.S.C. § 1326(b)(2).
2
Case: 21-50875 Document: 00516692766 Page: 3 Date Filed: 03/28/2023
No. 21-50875
aggravated felony. Thus, Huerta was properly sentenced under § 1326(b)(2).
However, because the judgment below lists only the generic illegal-reentry
statute rather than the precise provision under which Huerta was sentenced,
we REFORM the judgment to reflect that Huerta was sentenced under §
1326(b)(2) and AFFIRM the judgment as reformed.
I
A
We begin by briefly describing the statutory background.
Illegal reentry into the United States is governed by 8 U.S.C. § 1326.
Specifically, § 1326(a) forbids a previously deported alien from returning to
the United States without special permission, authorizing a maximum prison
term of two years for those who illegally reenter. Section 1326(b) ratchets up
the reentry penalties for certain categories of removed aliens. Relevant here,
§ 1326(b)(1) authorizes a maximum prison sentence of 10 years if the
“removal was subsequent to a conviction for commission of three or more
misdemeanors involving drugs, crimes against the person, or both, or a felony
(other than an aggravated felony)[.]”2 And § 1326(b)(2) authorizes a
maximum 20-year term if the previous removal was “subsequent to a
conviction for commission of an aggravated felony[.]”3
2
8 U.S.C. § 1326(b)(1)
3
§ 1326(b)(2) (emphasis added). In Almendarez-Torres v. United States, the
Supreme Court labeled § 1326(b)(2) as a “penalty provision, which simply authorizes a
court to increase the sentence for a recidivist.” 523 U.S. 224, 226 (1998). Thus, because
“[i]t does not define a separate crime,” the Government is not required to charge the fact
of a prior aggravated felony conviction in the indictment. Id. at 226–27.
3
Case: 21-50875 Document: 00516692766 Page: 4 Date Filed: 03/28/2023
No. 21-50875
A list of offenses that qualify as aggravated felonies is set out in the
“Definitions” Section of the Immigration and Nationality Act (INA).4
Relevant to Huerta, included in the list of aggravated felonies is: “[a] burglary
offense for which the term of imprisonment [is] at least one year[.]”5
Moreover, an illegal reentry in violation of § 1326 is itself an aggravated felony
when it is “committed by one who has previously been deported following an
aggravated felony conviction.”6 Specifically, 8 U.S.C. § 1101(a)(43)(O) lists
as an aggravated felony:
an offense described in section 1325(a) or 1326 of this title [an
illegal entry or reentry offense] committed by an alien who was
previously deported on the basis of a conviction for an offense
described in another subparagraph of this paragraph [an
aggravated-felony offense][.]7
B
We now turn to the factual and procedural history.
Josue De Jesus Huerta-Rodriguez is a Mexican citizen with a long
criminal history in the United States consisting of a burglary and multiple
illegal reentries. Huerta’s burglary occurred in Iowa in 2002 when he and
several gang members burglarized a residence while in possession of a
4
8 U.S.C. § 1101(a)(43). Originally enacted in 1952, the Immigration and
Nationality Act has been amended many times over the years and contains important
provisions of immigration law. Immigration and Nationality Act, Pub. L. No. 82-414, § 101,
66 Stat. 163 (1952) (codified as amended at 8 U.S.C. § 1101).
5
Id. § 1101(a)(43)(G).
6
United States v. Piedra-Morales, 843 F.3d 623, 624 (5th Cir. 2016) (per curiam)
(citing 8 U.S.C. § 1101(a)(43)(O)).
7
8 U.S.C. § 1101(a)(43)(O).
4
Case: 21-50875 Document: 00516692766 Page: 5 Date Filed: 03/28/2023
No. 21-50875
dangerous weapon.8 Huerta was convicted of first-degree burglary and
sentenced to prison for up to 25 years.9 In January 2007, he was paroled and
deported to Mexico.
In 2015, Huerta was discovered in Texas by federal agents. He pleaded
guilty to and was convicted of illegal reentry.10 The presentence report (PSR)
identified his Iowa burglary conviction as an aggravated felony and increased
Huerta’s offense level accordingly.11 The PSR also listed the maximum
sentence as 20 years, citing § 1326(b)(2).12 Huerta did not object to the PSR,
and the district court adopted it.13 The judgment, which sentenced Huerta to
roughly 11 months in prison and three years of supervised release, did not
8
The record indicates that there were two victims of the burglary. “One of the
victims was stabbed and assaulted, and the other victim was shot at close range and stabbed
five times.”
9
The record does not specify the exact sentence imposed on Huerta for his Iowa
burglary but indicates that he was “[i]mprisoned for a period not to exceed 25 years.”
10
See Judgment and Commitment, United States v. Huerta-Rodriguez, No. 2:15-CR-
726 (W.D. Tex. 2015), ECF No. 28. Documents from Huerta’s first and second illegal-
reentry proceedings are not included in the record. However, we “may take judicial notice
of prior court proceedings as matters of public record.” In re Deepwater Horizon, 934 F.3d
434, 440 (5th Cir. 2019) (per curiam).
11
See Revised Presentence Report, No. 2:15-CR-726 (W.D. Tex. 2015), ECF No.
23, ¶ 9. At the time of Huerta’s first reentry, a previous deportation following an
aggravated-felony conviction triggered an increase in the illegal-reentry offense level.
However, the Sentencing Guidelines have since been amended to account for recidivism in
a different way. See U.S. Sentencing Comm’n., U.S. Sentencing Guidelines Manual, Supp.
to App. C, 146–159 (2016) (discussing amendment 802).
12
See Revised Presentence Report, No. 2:15-CR-726 (W.D. Tex. 2015), ECF No.
23 ¶ 47.
13
See Statement of Reasons, No. 2:15-CR-726 (W.D. Tex. 2015), ECF No. 29.
5
Case: 21-50875 Document: 00516692766 Page: 6 Date Filed: 03/28/2023
No. 21-50875
reference § 1326(b)(2) but listed only § 1326(a) as the statute of conviction.14
Upon release from prison in 2016, Huerta was again removed to Mexico.
Following Huerta’s first illegal-reentry conviction, the Supreme
Court decided Mathis v. United States.15 Mathis held that Iowa burglary is not
“generic burglary” because the elements of Iowa’s burglary statute are
broader than those of a generic burglary offense.16 This holding, that Iowa
burglary is broader than generic burglary, when paired with the “categorical
approach” used to determine if a prior crime is a “burglary offense” under
§ 1101(a)(43)(G) of the INA, meant that after Mathis, Huerta’s Iowa
burglary no longer qualified as an aggravated felony.17
14
See Judgment and Commitment, No. 2:15-CR-726 (W.D. Tex. 2015), ECF No.
28.
15
579 U.S. 500 (2016). The issue in Mathis was whether an Iowa burglary
conviction could give rise to a sentence enhancement under the Armed Career Criminal
Act, which imposes a mandatory minimum on a defendant convicted of being a felon in
possession of a firearm who also has three prior convictions “for a violent felony” including
“burglary, arson, or extortion.” Id. at 503 (citing 18 U.S.C. § 924(e)). The Court held that
Iowa burglary could not give rise to the sentence enhancement because Iowa burglary is
broader than generic burglary in that it includes unlawful entry into a broader range of
locations than generic burglary. See id. at 507 (“The generic offense requires unlawful entry
into a ‘building or other structure.’ Iowa’s statute, by contrast, reaches a broader range of
places: ‘any building, structure, [or] land, water, or air vehicle.’”) (emphasis in original)
(citations omitted).
16
See id. at 507.
17
We use a categorical approach to decide whether a prior crime is a “burglary
offense,” and thus an aggravated felony under § 1101(a)(43)(G). See, e.g., United States v.
Vega, 960 F.3d 669, 675–76 (5th Cir. 2020). Under this categorical approach, we do not
look to the defendant’s actual conduct, but to whether the elements of the offense of
conviction match the definition of a generic version of a crime. Id. at 675. Thus, even
though Huerta’s actual conduct may have fallen within the definition of “generic
burglary,” Huerta’s burglary was not an aggravated felony under § 1101(a)(43)(G) because
the elements of Iowa burglary are broader than the generic version of burglary. See Mathis,
579 U.S. at 507.
6
Case: 21-50875 Document: 00516692766 Page: 7 Date Filed: 03/28/2023
No. 21-50875
Less than two months after Huerta’s 2016 removal, federal agents
found Huerta in Texas yet again. And he was convicted of illegal reentry yet
again. The PSR identified both Huerta’s Iowa burglary and his first reentry
as aggravated felonies.18 It raised Huerta’s offense level accordingly and,
citing § 1326(b)(2), listed the maximum sentence as 20 years.19 This time,
Huerta objected to the PSR, arguing that an aggravated-felony enhancement
should not apply because, after Mathis, his Iowa burglary conviction no
longer qualified as an aggravated felony.20 The district court disagreed,
adopting the PSR without change21 and sentencing Huerta to a two-year
prison term for illegal reentry.22 The judgment listed only § 1326 as the
statute of conviction, again failing to expressly reference § 1326(b)(2).23
Huerta did not appeal and was deported in August 2018.
This brings us to the present case.
Barely a year after Huerta’s 2018 deportation, federal agents again
found Huerta in Texas. He again pleaded guilty of illegal reentry in violation
of § 1326. At sentencing, Huerta again objected to the PSR’s treatment of his
18
See United States v. Huerta-Rodriguez, Revised Presentence Report, No. 2:16-CR-
939 (W.D. Tex. 2016), ECF No. 23 ¶ 9 (“[Huerta’s burglary] conviction qualifies as an
aggravated felony under USSG §2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(G)”), ¶ 10
(“[Huerta’s illegal re-entry] conviction qualifies as an aggravated felony under USSG
§2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(O).”). Again, we take judicial notice of the
docket in Huerta’s second reentry proceedings “as [a] matter[] of public record.”
Deepwater Horizon, 934 F.3d at 440.
19
See Revised Presentence Report, 2:16-CR-939 (W.D. Tex. 2016), ECF No. 23 ¶
53.
20
See Addendum to Presentence Report, 2:16-CR-939 (W.D. Tex. 2016), ECF No.
23–1.
21
See Statement of Reasons, 2:16-CR-939 (W.D. Tex. 2016), ECF No. 29.
22
See Judgment and Commitment, 2:16-CR-939 (W.D. Tex. 2016), ECF No. 28.
23
See Judgment and Commitment, 2:16-CR-939 (W.D. Tex. 2016), ECF No. 28.
7
Case: 21-50875 Document: 00516692766 Page: 8 Date Filed: 03/28/2023
No. 21-50875
Iowa burglary and his two prior illegal reentries as aggravated felonies. The
parties briefed the issue, with Huerta reiterating his argument that his Iowa
burglary and previous reentries did not count as aggravated felonies after
Mathis. He asked that the PSR be amended to show the offense as enhanced
under § 1326(b)(1) instead of § 1326(b)(2). The Government conceded that
Huerta’s burglary no longer qualified as an aggravated felony under Mathis
but argued that § 1326(b)(2) still applied because Huerta’s first illegal-
reentry conviction, which directly followed the burglary conviction, was itself
an aggravated felony under 8 U.S.C. § 1101(a)(43)(O). The district court
agreed with the Government, concluding that Huerta was subject to the 20-
year prison term under § 1326(b)(2). But the court imposed a prison sentence
of just 57 months, well below the maximum term in either § 1326(b)(1) or §
1326(b)(2). Once again, the written judgment failed to cite the specific
sentencing provision, listing only § 1326 as the statute of conviction. Huerta
timely appealed.
II
We review de novo whether a defendant’s prior offense qualifies as an
“aggravated felony.”24
III
On appeal, Huerta argues that the district court erred in sentencing
him under § 1326(b)(2) for the third illegal-reentry offense because his prior
burglary conviction is no longer an aggravated felony after Mathis, and
therefore, his prior illegal-reentry offenses are also not aggravated felonies.
He requests a remand to the district court to correct the judgment to specify
24
See United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003); United
States v. Teran-Salas, 767 F.3d 453, 457 (5th Cir. 2014).
8
Case: 21-50875 Document: 00516692766 Page: 9 Date Filed: 03/28/2023
No. 21-50875
that his illegal-reentry offense was enhanced under § 1326(b)(1) rather than
§ 1326(b)(2).
In addressing these arguments, we begin with a threshold question:
whether Huerta is entitled to relief even assuming he is correct that he should
have been sentenced under § 1326(b)(1) rather than § 1326(b)(2). Finding
ample precedent for granting relief under these circumstances, we next
consider the Government’s argument that, by pleading guilty in his first
illegal-reentry case, Huerta conceded that he was previously removed
“subsequent to a conviction for commission of an aggravated felony.”
Concluding there was no concession, we turn to the core interpretive
question: Must a court reexamine the aggravated-felony characterization of a
predicate offense in light of new case law in order to sentence an alien under
§ 1326(b)(2)? We hold that when a court in an intervening illegal-reentry
proceeding25 characterized the defendant’s predicate offense as an
aggravated felony and sentenced him under § 1326(b)(2), there is no
requirement for a court to revisit the predicate offense. Under these
circumstances, the intervening illegal-reentry conviction is itself an
aggravated felony that supports a § 1326(b)(2) sentence. We thus conclude
that Huerta was correctly sentenced under § 1326(b)(2).
A
At first glance, the relief Huerta requests—reformation of his
judgment to list § 1326(b)(1) specifically instead of § 1326 generally—may
seem insubstantial. But we have reformed judgments in similar
circumstances before, reasoning that an erroneous judgment implying that a
25
By intervening illegal-reentry proceeding, we mean one that came between the
predicate offense and the change in law that calls into question the aggravated-felony status
of the predicate offense.
9
Case: 21-50875 Document: 00516692766 Page: 10 Date Filed: 03/28/2023
No. 21-50875
defendant’s past crime was an aggravated felony rather than a felony “could
have collateral consequences.”26 This is the case even when, as here, the
alleged error in the judgment did not affect the sentence.27 And because the
judgment below cites only § 1326, whether we decide in favor of Huerta or in
favor of the Government, it is proper that the judgment be corrected to reflect
the precise provision under which Huerta should have been sentenced.
B
Relying on our precedent in United States v. Gamboa-Garcia,28 the
Government’s principal argument is that Huerta made a concession during
his first illegal-reentry case that precludes his argument here. In Gamboa-
Garcia, the government sought enhanced penalties for illegal reentry under
§ 1326(b)(2) for a defendant who had a prior § 1326(b)(2) illegal-reentry
conviction that was based on an underlying accessory-to-murder
conviction.29 The defendant argued that her accessory-to-murder conviction
had been wrongly categorized as an aggravated felony, and as such, her first
illegal-reentry conviction was also not an aggravated felony.30 The Gamboa-
Garcia court refrained from wading into the “interpretive dispute” whether
§ 1326(b)(2) requires a court to revisit aggravated-felony characterizations of
past convictions.31 Instead, the panel held that because the judgment in the
26
United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017).
27
Id. (remanding to the district court for the purpose of correcting the judgment to
reflect the fact that defendant was previously deported after a conviction of a non-
aggravated rather than an aggravated felony, even after defendant had already served his
sentence and was deported).
28
620 F.3d 546 (5th Cir. 2010).
29
Id. at 547.
30
Id. at 548.
31
Id. at 549.
10
Case: 21-50875 Document: 00516692766 Page: 11 Date Filed: 03/28/2023
No. 21-50875
defendant’s first illegal-reentry case stated that the defendant pleaded guilty
to violating § 1326(a) with a sentencing enhancement under § 1326(b)(2), the
defendant admitted she was previously removed “subsequent to a conviction
for commission of an aggravated felony.”32 We thus concluded that the
district court did not err in categorizing the defendant’s accessory-to-murder
conviction and first illegal-reentry conviction as aggravated felonies. The
“guilty plea expressly eliminate[d] the interpretive question.”33
Gamboa-Garcia has generated a host of decisions holding that a court
will not revisit an underlying aggravated-felony characterization if the
judgment accompanying the previous illegal-reentry conviction reflects that
the defendant pleaded guilty to illegal reentry under § 1326(b)(2).34 United
States v. Piedra-Morales upheld that principle even when, as here, intervening
case law had called into question whether the state conviction would still be
treated as an aggravated felony today.35
This case does not present a straightforward application of Gamboa-
Garcia and Piedra-Morales because, in those cases, the previous illegal-
reentry judgments specifically reflected that the defendants had pleaded
guilty under § 1326(b)(2).36 Here, in contrast, the judgments for both of
32
Id. (citation omitted).
33
Id.
34
See, e.g., United States v. Cuellar, 738 F. App’x 320, 321 (5th Cir. 2018) (per
curiam); United States v. Riojas-Ordaz, 756 F. App’x 498, 498 (5th Cir. 2019) (per curiam);
United States v. Barrieta-Barrera, 2022 WL 885091, at *1 (5th Cir. Mar. 25, 2022) (per
curiam).
35
843 F.3d 623, 624–25 (5th Cir. 2016) (holding prior guilty plea under
§ 1326(b)(2) precluded defendant from arguing that previous conviction was not an
aggravated felony when intervening Supreme Court decision meant that offenses
underlying prior illegal-reentry convictions no longer qualified as aggravated felonies).
36
See Gamboa-Garcia, 620 F.3d at 549; Piedra-Morales, 843 F.3d at 625.
11
Case: 21-50875 Document: 00516692766 Page: 12 Date Filed: 03/28/2023
No. 21-50875
Huerta’s prior illegal-reentry convictions list only § 1326 and do not specify
a subsection. Thus, unlike in Gamboa-Garcia and Piedra-Morales, we cannot
say that Huerta “conceded” that he sustained an aggravated felony
conviction. Only the PSR’s in Huerta’s prior reentry cases, not the
judgments, mentioned § 1326(b)(2). And failing to object to a PSR with
nothing more is not a concession to the accuracy of its contents.37 Finding
that Huerta did not clearly make a concession under Gamboa-Garcia, we turn
to the “interpretive dispute” left open in that case and later cases.
C
Must courts act out “a variation on the movie Groundhog
Day,”38 repeatedly reconsidering aggravated-felony characterizations from
past convictions in order to sentence a defendant under § 1326(b)(2)? This is
the question left open by Gamboa-Garcia. Today we answer “no”—but only
for the narrow set of circumstances before us. When a defendant has a prior
illegal-reentry conviction under § 1326(b)(2) that came before any intervening
change in law calling into question the aggravated-felony status of the
predicate offense, a district court does not err in sentencing the defendant
under § 1326(b)(2). Under these circumstances, the prior illegal-reentry
conviction is itself an aggravated felony that supports a subsequent
§ 1326(b)(2) sentence. Here, Huerta was convicted under § 1326(b)(2) in his
first illegal-reentry case. That conviction occurred before the Supreme
Court’s Mathis decision called into question the aggravated felony status of
37
See United States v. Rojas-Luna, 522 F.3d 502, 507 (5th Cir. 2008). Although
Huerta failed to object to the PSR in his first illegal-reentry case, he did object to the PSR
in his second illegal-reentry case, which occurred after the Supreme Court’s Mathis
decision. See United States v. Huerta-Rodriguez, Addendum to Presentence Report, 2:16-
CR-00939 (W.D. Tex. 2016), ECF No. 23–1.
38
Gamboa-Garcia, 620 F.3d at 549.
12
Case: 21-50875 Document: 00516692766 Page: 13 Date Filed: 03/28/2023
No. 21-50875
Huerta’s Iowa burglary. Thus, Huerta’s first illegal-reentry conviction
qualifies as an aggravated felony itself under § 1101(a)(43)(O), and Huerta
was correctly sentenced below under § 1326(b)(2). We reach this conclusion
for two primary reasons.
First, categorizing a past illegal-reentry conviction under § 1326(b)(2)
as an aggravated felony regardless of the present status of the predicate
conviction is faithful to the most natural reading of § 1101(a)(43)(O). Again,
§ 1101(a)(43)(O) categorizes as an “aggravated felony”:
an offense described in section 1325(a) or 1326 of this title [an
illegal entry or reentry offense] committed by an alien who was
previously deported on the basis of a conviction for an offense
described in another subparagraph of this paragraph [an
aggravated felony offense][.]39
The provision is written in past tense, anchoring the relevant timeframe of
the inquiry in the past rather than the present. It classifies as an aggravated
felony an illegal-reentry offense committed by an alien “who was previously
deported on the basis of a conviction for . . . [an aggravated-felony
offense].”40 Quite simply, whether or not Huerta’s Iowa burglary is now
considered an aggravated felony, it is impossible to alter the historical fact
that he was convicted of a crime considered at the time to be an aggravated
felony and then deported.
Second, as the Government points out, Huerta’s interpretation would
render § 1101(a)(43)(O) functionally superfluous. Again, that provision,
included within a list of offenses that qualify as “aggravated felonies” within
the context of the INA,41 provides that an illegal reentry is itself an
39
8 U.S.C. § 1101(a)(43)(O).
40
Id.41
8 U.S.C. § 1101(a)(43)(O) is situated in the “Definitions” section of the INA,
which defines the meaning of terms “as used in this chapter.” “This chapter” refers to
13
Case: 21-50875 Document: 00516692766 Page: 14 Date Filed: 03/28/2023
No. 21-50875
aggravated felony when it is “committed by one who has previously been
deported following an aggravated felony conviction.”42 The term
“aggravated felony” is used throughout the INA several times, usually as a
trigger of negative consequences such as a sentence enhancement in illegal-
reentry convictions or an exception to eligibility for cancellation of removal.43
The INA does not distinguish between one aggravated felony in an alien’s
past or multiple. Put differently, throughout the INA, one aggravated felony
triggers the same consequence as multiple. Thus, if the application of
§ 1101(a)(43)(O) always depends on a predicate crime simultaneously
qualifying as an aggravated felony, then the provision would do no work. The
predicate crime would always count as an aggravated felony in the
defendant’s past anyway, and the Government would not bother to prove
that an illegal reentry was also an aggravated felony, since the consequences
for one past aggravated felony are the same as the consequences for multiple
under the INA. Because courts avoid interpretations that would render a
provision largely superfluous, this weighs heavily against Huerta’s
interpretation.44
Chapter 12 of Title 8 of the United States code, also known as the Immigration and
Nationality Act. See § 1101(a).
42
United States v. Piedra-Morales, 843 F.3d 623, 624 (5th Cir. 2016).
43
See e.g., 8 U.S.C. § 1158(b)(2)(B)(i) (exception to authority to apply for asylum);
§ 1182(a)(9)(A) (inadmissible aliens); § 1226(d)(1) (identification of criminal aliens);
§ 1227(a)(2)(A)(iii) (deportable aliens); § 1228 (expedited removal); § 1229b(a)(3)
(ineligibility for cancellation of removal); § 1231(b)(3)(ii) (exception to restriction on
removal); § 1326(b)(2) (illegal-reentry sentence enhancement); § 1327 (aiding or assisting
certain aliens to enter).
44
See City of Chicago v. Fulton, 141 S. Ct. 585, 591 (2021). For what it’s worth, our
holding also makes perfect policy sense. It is probable that, through § 1101(a)(43)(O),
Congress wished to deter aliens from illegally reentering when they had past convictions
that qualified, at the time of reentry, as aggravated felonies. It makes little sense to let a
defendant off the hook because his predicate offense no longer qualifies as an aggravated
14
Case: 21-50875 Document: 00516692766 Page: 15 Date Filed: 03/28/2023
No. 21-50875
To be sure, in United States v. Fuentes-Rodriguez, we decided in favor
of reconsidering the defendant’s past aggravated felony.45 There, the
defendant illegally reentered the United States after having been previously
convicted of family-violence assault under Texas law. He pleaded guilty
under § 1326(b)(2) but argued on appeal that his underlying family-violence
assault conviction did not constitute an aggravated felony. 46 We initially
disagreed, affirming the lower court conviction under § 1326(b)(2).47
However, following a Supreme Court decision that made clear that
defendant’s family-violence conviction was not an aggravated felony, the
Supreme Court granted the defendant’s pending petition for a writ of
certiorari, vacated our prior judgment, and remanded to us for further
consideration.48 On remand, we vacated the district court’s judgment and
remanded for entry of a reformed judgment reflecting that the defendant was
sentenced under § 1326(b)(1) rather than § 1326(b)(2), reasoning that the
predicate family-violence assault offense was not an aggravated felony in the
felony years later, when he previously reentered the United States with full knowledge of
the status of his conviction. Holding that a prior illegal-reentry conviction under
§ 1326(b)(2) qualifies as an aggravated felony under § 1101(a)(43)(O) also dispels a key
policy concern highlighted in Gamboa-Garcia. Namely, Huerta’s interpretation “would
render § 1101(a)(43)(O) essentially meaningless by undermining the finality of []
convictions, requiring courts repeatedly to reconsider arcane issues regarding prior
convictions.” 620 F.3d at 549.
45
22 F.4th 504 (5th Cir. 2022) (per curiam).
46
Id. at 505.
47
Id.48
Id.15
Case: 21-50875 Document: 00516692766 Page: 16 Date Filed: 03/28/2023
No. 21-50875
wake of the new Supreme Court precedent.49 We reached a similar
conclusion in United States v. Olvera-Martinez.50
At first glance, Fuentes-Rodriguez and Olvera-Martinez seem to spell
victory for Huerta, but a critical distinction makes all the difference. In our
past cases, we were not faced with the unique set of facts we face here. In this
case, sandwiched between the predicate conviction and the illegal reentry
appealed from, the defendant racked up intervening illegal entry convictions
under § 1326(b).51 Fuentes-Rodriguez and Olvera-Martinez, by contrast, did
not implicate § 1101(a)(43)(O) in any way. Here, it is significant that, in
Huerta’s first reentry case, which came before Mathis altered the legal
landscape, the district court considered the predicate burglary offense an
aggravated felony and sentenced him under § 1326(b)(2). Thus, Huerta’s
first illegal-reentry conviction itself qualifies as an aggravated felony under
§ 1101(a)(43)(O).
IV
Putting the pieces together, Huerta was correctly sentenced under
§ 1326(b)(2) because he was previously removed “subsequent to a conviction
for commission of an aggravated felony.” Huerta’s first illegal reentry, for
which he was sentenced under § 1326(b)(2), was an aggravated felony under
49
Id. at 505–06.
50
United States v. Olvera-Martinez, 858 F. App’x 145 (5th Cir. 2021) (per curiam).
51
It is important to note, however, that in United States v. Martinez-Zamorano, 228
F. App’x 497, 498 (5th Cir. 2007) (per curiam), we did face similar circumstances in which
a defendant had an intervening illegal-reentry conviction. There, we held that that it was
plain error to classify a defendant’s prior illegal-reentry conviction as an aggravated felony
after a Supreme Court decision held that the defendant’s underlying marijuana possession
offense was no longer an aggravated felony. Id. at 498. However, Martinez is an unpublished
case, and Gamboa-Garcia explicitly declined to follow it. See Gamboa-Garcia, 620 F.3d at
548, n. 3.
16
Case: 21-50875 Document: 00516692766 Page: 17 Date Filed: 03/28/2023
No. 21-50875
§ 1101(a)(43)(O). Because the judgment cites only the general statute of
§ 1326, we REFORM the judgment to reflect that Huerta was convicted and
sentenced under § 1326(b)(2). We AFFIRM the judgment as reformed.
17