United States v. Alvarez-Alvarado ( 2023 )

Case: 22-50853 Document: 00516793100 Page: 1 Date Filed: 06/20/2023
United States Court of Appeals
for the Fifth Circuit
_____________
United States Court of Appeals
Fifth Circuit
No. 22-50853
consolidated with FILED
No. 22-50860 June 20, 2023
Summary Calendar Lyle W. Cayce
_____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Amado Alvarez-Alvarado,
Defendant—Appellant.
______________________________
Appeals from the United States District Court
for the Western District of Texas
USDC Nos. 4:22-CR-235-1, 4:22-CR-417-1
______________________________
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam: *
Amado Alvarez-Alvarado appeals his conviction and sentence for
illegal reentry into the United States, as well as the judgment revoking his
term of supervised release for a prior offense. He has not briefed, and
therefore has abandoned, any challenge to the revocation of supervised
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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release or his revocation sentence. See Yohey v. Collins, 985 F.2d 222, 224-
25 (5th Cir. 1993).
First, Alvarez-Alvarado argues the district court erred in entering a
judgment reflecting that his conviction was under 8 U.S.C. § 1326(b)(2)
because none of his prior convictions were aggravated felonies. Because he
did not raise this issue in the district court, our review is limited to plain error.
See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v.
Rodriguez-Flores, 25 F.4th 385, 387 (5th Cir. 2022). To show plain error, he
must demonstrate there is a clear or obvious error that affects his substantial
rights. Puckett, 556 U.S. at 135. If he makes this showing, we have discretion
to correct that error but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks and citation omitted). The Government agrees that the
judgment is incorrect and moves to reform the judgment to reflect the correct
statute of conviction, § 1326(b)(1).
Alvarez-Alvarado has a 2009 Nevada conviction for attempted
burglary. The Nevada burglary statute does not require breaking as an
element of burglary and does not require that the entry be forcible. See State
v. White, 330 P.3d 482, 485 (Nev. 2014); Nev. Rev. Stat. Ann.
§ 205.060(1) (2005). Because it does not require the use, attempted use, or
threatened use of force, it is not a crime of violence under § 1101(a)(43)(F).
See 18 U.S.C. § 16(a). The Nevada burglary statute also does not require
unlawful or unprivileged entry and reaches more structures than generic
burglary. See Nev. Rev. Stat. Ann. § 205.060(1) (2005). For these
reasons, it does not constitute generic burglary under § 1101(a)(43)(G) or an
aggravated felony under § 1326(b)(2). See Descamps v. United States, 570
U.S. 254, 277 (2013) (holding that a very similar California burglary statute
was non-generic burglary because it did not require breaking and entering);
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see also Covarrubias-Sotelo v. Holder, 570 F. App’x 704, 704 (9th Cir. 2014);
United States v. Hiser, 532 F. App’x 648, 648-49 (9th Cir. 2013).
Neither of Alvarez-Alvarado’s other felony convictions qualify as
aggravated felonies under § 1326(b)(2). Because his conviction for
unauthorized absence constituting escape does not have as an element the
use, attempted use, or threatened use of physical force against a person or
property of another, see § 16(a), it does not constitute a crime of violence
under § 1101(a)(43)(F) or an aggravated felony under § 1326(b)(2). See
Nev. Rev. Stat. Ann. § 212.095(1). Given that the attempted burglary
and unauthorized absence convictions do not constitute aggravated felonies,
his prior federal conviction for reentry of a removed alien does not constitute
an aggravated felony. See § 1101(a)(43)(O). Therefore, based on a
straightforward application of the caselaw, the district court’s judgment
stating that the conviction was under § 1326(b)(2) is plainly erroneous. See
Puckett, 556 U.S. at 135; Rodriguez-Flores, 25 F.4th at 390. A conviction under
§ 1326(b)(2) carries collateral consequences because it “is itself an
aggravated felony, rendering the defendant permanently inadmissible to the
United States.” United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir.
2017) (internal quotation marks, brackets, and citation omitted).
Accordingly, we exercise our discretion to correct the error. See Rodriguez-
Flores, 25 F.4th at 390-91.
Next, Alvarez-Alvarado argues § 1326(b) is unconstitutional because
it permits a sentence above the otherwise applicable statutory maximum
based on facts that are neither alleged in the indictment nor found by a jury
beyond a reasonable doubt. He acknowledges this argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but seeks to
preserve it for possible Supreme Court review. The Government moves for
partial summary affirmance on this issue, and in the alternative, an extension
of time to file an appellate brief.
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Summary affirmance is proper where “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). Subsequent Supreme Court decisions
such as Alleyne v. United States, 570 U.S. 99 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres. 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). Thus, partial summary affirmance is
appropriate. See Groendyke Transp., Inc., 406 F.2d at 1162.
Accordingly, the Government’s motion to reform the judgment is
DENIED, and its alternative motion to remand the case to reform the
judgment is GRANTED. The case is REMANDED to the district court
for the limited purpose of reforming the judgment to reflect conviction and
sentencing under § 1326(b)(1). Further, the Government’s motion for
partial summary affirmance is GRANTED, and its alternative motion for an
extension of time to file a brief is DENIED. The judgments are otherwise
AFFIRMED.
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