United States v. Jerome Martinez

Case: 17-40620 Document: 00514414272 Page: 1 Date Filed: 04/04/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40620
FILED
April 4, 2018
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JEROME ARISTEDES MARTINEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-1070-1
Before REAVLEY, PRADO ∗, and GRAVES, Circuit Judges.
PER CURIAM: ∗∗
Following a jury trial, Jerome Aristedes Martinez was convicted of
attempted illegal reentry in violation of 8 U.S.C. § 1326. The district court
sentenced him to 33 months of imprisonment and one year of supervised
release. On appeal, Martinez asserts that the district court erred in using the
Fifth Circuit’s pattern jury instruction instead of the Ninth Circuit’s pattern
∗
This opinion was concurred in by Judge Prado prior to his retirement from the court
on April 2, 2018.
∗∗
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40620
jury instruction to instruct the jury on the offense elements of attempted illegal
reentry. Specifically, he maintains that attempted illegal reentry is a specific
intent offense, which requires the Government to prove that “‘the defendant
had the conscious desire to reenter the United States without consent.’”
We ordinarily review “a jury instruction for abuse of discretion, affording
substantial latitude to the district court in describing the law to the jury.”
United States v. Williams, 610 F.3d 271, 285 (5th Cir. 2010). However, we
review de novo “whether the jury instruction misstated an element of the
statutory crime.” United States v. Morales-Palacios, 369 F.3d 442, 445 (5th
Cir. 2004).
In Morales-Palacios, we held that “for an attempted illegal reentry under
section 1326 specific intent is not an element of the statute.” Id. at 449.
Although Martinez argues that Morales-Palacios was wrongly decided, one
panel of this court may not overrule a decision made by a prior panel “[a]bsent
an intervening Supreme Court or en banc decision or a change in statutory
law.” United States v. Treft, 447 F.3d 421, 425 (5th Cir. 2006). Accordingly,
the district court did not err in denying Martinez’s request to instruct the jury
on the Ninth Circuit’s specific intent requirement for attempted illegal reentry.
In addition, Martinez argues that the felony and aggravated felony
provisions of § 1326(b)(1) and (b)(2) are unconstitutional because they allow for
an increased statutory maximum sentence without the predicate conviction
being alleged in the indictment and proven beyond a reasonable doubt.
However, he correctly concedes that this argument is foreclosed under
Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 235 (1998). See
United States v. Pineda-Arellano, 492 F.3d 624, 625-26 (5th Cir. 2007).
Finally, we note that there is a clerical error in the judgment. Martinez
was convicted by the jury of attempted illegal reentry, while the written
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No. 17-40620
judgment states that his offense was “[r]e-entry of a deported alien.”
“[A]ttempted reentry under § 1326 constitutes an offense distinct from either
reentry or being found in the United States under § 1326.” United States v.
Buendia-Rangel, 553 F.3d 378, 379 n.1 (5th Cir. 2008); see § 1326(a)(2); United
States v. Angeles-Mascote, 206 F.3d 529, 531 (5th Cir. 2000).
Accordingly, the judgment of the district court is AFFIRMED. The case
is REMANDED to the district court for the limited purpose of correcting the
clerical error in the judgment.
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