United States v. Jefferson Aspirlla ( 2018 )

Case: 18-20028 Document: 00514648728 Page: 1 Date Filed: 09/19/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20028 FILED
Summary Calendar September 19, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEFFERSON RIASCOS ASPIRLLA, also known as Kevin Caceres,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CR-565-1
Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *
Defendant-Appellalnt Jefferson Riascos Aspirlla was convicted of illegal
reentry and sentenced to a within-guidelines 23-month prison term and a one-
year term of supervised release. See 8 U.S.C. § 1326. In this appeal, he seeks
reformation of the judgment to reflect sentencing under § 1326(b)(1) instead of
§ 1326(b)(2) because, in his view, his Texas burglary conviction was not for an
aggravated felony. We review for plain error because Riascos Aspirlla did not
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20028
avail himself of the opportunity to raise this claim before the district court. See
Puckett v. United States, 556 U.S. 129, 135-36 (2009).
We agree that Riascos Aspirlla’s burglary conviction was not for an
aggravated felony within the purview of § 1326(b)(2). Notwithstanding the
Government’s foreclosed argument to the contrary, his burglary conviction was
not for an enumerated burglary offense under 8 U.S.C. § 1101(a)(43)(G). See
United States v. Herrold, 883 F.3d 517, 522-26, 530-37 (5th Cir. 2018) (en
banc), petitions for cert. filed (Apr. 18, 2018) (No. 17-1445) and (May 21, 2018)
(No. 17-9127). Neither was his burglary conviction for a crime of violence
under 8 U.S.C. § 1101(a)(43)(F). See Sessions v. Dimaya, 138 S. Ct. 1204, 1223
(2018) (concerning 18 U.S.C. § 16(b)); United States v. Rodriguez-Guzman, 56
F.3d 18, 20 (5th Cir. 1995) (concerning § 16(a)), abrogated on other grounds as
recognized in United States v. Turner, 305 F.3d 349, 350-51 (5th Cir. 2002).
The judgment must “be reformed to reflect that [Riascos Aspirlla] was
sentenced according to 8 U.S.C. § 1326(b)(1), which provides for a 10-year
maximum sentence for a defendant whose removal was subsequent to a
conviction for commission of a felony (other than an aggravated felony).”
United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018), as revised (June 25,
2018) (internal quotation marks, citation, and ellipsis omitted). Riascos
Aspirlla’s rights and liabilities under the immigration laws are implicated by
the judgment’s incorrect citation of § 1326(b)(2) and mistaken description of
the crime as “[i]llegal reentry by a previously deported alien after an
aggravated felony conviction.” See United States v. Mondragon-Santiago, 564
F.3d 357, 369 (5th Cir. 2009); see also Dimaya, 138 S. Ct. at 1211. As Riascos
Aspirlla’s federal prison term is not challenged, however, “reformation [of the
judgment] does not require alteration to the ordered sentence.” Godoy, 890
F.3d at 542.
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No. 18-20028
The Government’s argument for holding this appeal in abeyance
(pending disposition of particular matters in the Supreme Court in other cases)
is unaccompanied by citation to legal authority addressing the abeyance issue.
Moreover, the Government’s request is at odds with our usual practice. See,
e.g., Ellis v. Collins, 956 F.2d 76, 79 (5th Cir. 1992); Wicker v. McCotter, 798
F.2d 155, 157-58 (5th Cir. 1986). We therefore REMAND for correction of the
judgment to reflect that the statutory sentencing provision is § 1326(b)(1), not
§ 1326(b)(2), and for deletion of the incorrect description of the offense as illegal
reentry of a deported alien following an aggravated felony conviction. See 28
U.S.C. § 2106. In all other respects, the judgment is AFFIRMED.
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