United States v. Esquivel-Ruiz ( 2023 )

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Case: 22-50357         Document: 00516755226             Page: 1      Date Filed: 05/18/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50357
consolidated with                                   FILED
No. 22-50363                                May 18, 2023
Summary Calendar                             Lyle W. Cayce
_____________                                     Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Esquivel-Ruiz,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:21-CR-975-1, 4:21-CR-1081-1
______________________________
Before Jones, Haynes, and Oldham, Circuit Judges.
Per Curiam: *
Oscar Esquivel-Ruiz appeals his guilty plea conviction and sentence
for illegal reentry after deportation in violation of

8 U.S.C. § 1326

(a) and
(b)(1), along with the revocation of the term of supervised release he was
serving for a prior illegal reentry offense. He has not briefed the validity of
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50357
c/w No. 22-50363
the revocation of his supervised release or his revocation sentence and has,
therefore, abandoned any challenge to them. See United States v. Reagan,

596 F.3d 251

, 254-55 (5th Cir. 2010).
For the first time on appeal, Esquivel-Ruiz contends that the district
court erred by enhancing his sentence under § 1326(b)(1) because the
indictment and factual basis for his guilty plea only established, and he only
admitted to, a deportation that preceded his three prior felony reentry
convictions. As the parties agree, we review this unpreserved claim for plain
error only. See United States v. Velasquez-Torrez,

609 F.3d 743

, 746 (5th Cir.
2010); see also Puckett v. United States,

556 U.S. 129

, 135 (2009).
Generally, the statutory maximum term of imprisonment for an illegal
reentry offense is two years. § 1326(a). However, the statutory maximum
for an offense is increased to 10 years if the defendant’s “removal was
subsequent to a conviction for . . . a felony (other than an aggravated felony).”
§ 1326(b)(1). The fact that the defendant was removed or deported after the
predicate felony conviction must be either proven beyond a reasonable doubt
or admitted by the defendant. See Velasquez-Torrez,

609 F.3d at 746

; see also
United States v. Rojas-Luna,

522 F.3d 502

, 506-07 (5th Cir. 2008) (citing
Apprendi v. New Jersey,

530 U.S. 466

, 490 (2000)).
According to the presentence report (PSR), immigration records
(which were provided to the defense as discovery) revealed that Esquivel-
Ruiz was deported on three separate occasions after serving sentences for
each of his prior felony reentry convictions. At sentencing, Esquivel-Ruiz
stated that he had reviewed the PSR and, through counsel, affirmed that he
had no corrections to the PSR. In light of these circumstances, it is at least
subject to reasonable dispute whether Esquivel-Ruiz admitted that he was
deported after a felony conviction; thus, the district court did not commit a
clear or obvious error by applying an enhanced statutory maximum.
2
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No. 22-50357
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See Puckett,

556 U.S. at 135

; Velasquez-Torrez,

609 F.3d at 746-48

; United
States v. Ramirez,

557 F.3d 200

, 204-05 (5th Cir. 2009). Moreover, any error
did not seriously affect the fairness, integrity, or public reputation of the
judicial proceedings. See Ramirez,

557 F.3d at 205