United States v. Nimaja-Pol ( 2023 )

Case: 23-50245 Document: 00516980133 Page: 1 Date Filed: 11/27/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-50245
Summary Calendar FILED
____________ November 27, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Pedro Nimaja-Pol,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:22-CR-757-1
______________________________
Before Elrod, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Pedro Nimaja-Pol appeals his conviction and sentence for illegal
reentry following removal. He first argues the district court erred in entering
a judgment reflecting that his conviction was under 8 U.S.C. § 1326(b)(2)
because he did not have a prior conviction for an aggravated felony. Because
he did not raise this issue in the district court, our review is limited to plain
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-50245
error. See Puckett v. United States, 556 U.S. 129, 135 (2009). To show plain
error, he must demonstrate a clear or obvious error that affects his substantial
rights. Id. 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 it to reflect the correct statute of conviction, § 1326(b)(1).
Nimaja-Pol has a 2018 state conviction for one count of possession of
child pornography and one count of possession or promotion of child
pornography. The Texas child pornography statute prohibits the possession
of material visually depicting a child under 18 years of age engaging in sexual
conduct, including “lewd exhibition of . . . any portion of the female breast
below the top of the areola.” Tex. Penal Code Ann. § 43.25(a)(2); see
Tex. Penal Code Ann. § 43.26(a). The Texas statute sweeps more
broadly than the federal statute prohibiting the possession of child
pornography, which does not cover such conduct. See 18 U.S.C.
§§ 2252(a)(4), 2256(2)(A)(v). Thus, the Texas offense of possession of or
promoting child pornography is not categorically an aggravated felony under
8 U.S.C. § 1101(a)(43)(I). See United States v. Vega, 960 F.3d 669, 675 (5th
Cir. 2020). We therefore exercise our discretion to correct the error. See
United States v. Rodriguez-Flores, 25 F.4th 385, 390–91 (5th Cir. 2022).
Next, Nimaja-Pol argues for the first time on appeal that his sentence
exceeds the statutory maximum and is therefore unconstitutional because the
district court enhanced his sentence under § 1326(b) based on facts that were
neither alleged in the indictment nor found by a jury beyond a reasonable
doubt. While he acknowledges this argument is foreclosed by Almendarez-
Torres v. United States, 523 U.S. 224 (1998), he nevertheless seeks to preserve
it for possible Supreme Court review. The Government agrees and has filed
a motion for summary affirmance.
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Case: 23-50245 Document: 00516980133 Page: 3 Date Filed: 11/27/2023
No. 23-50245
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). Thus, Nimaja-Pol is correct that his argument is foreclosed,
and summary disposition is appropriate. See Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969).
The Government’s motion to reform the judgment is DENIED, and
the Government’s 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). The Government’s motion for summary
affirmance is GRANTED, and its alternative motion for an extension of
time is DENIED. The judgment is otherwise AFFIRMED.
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