United States v. Oscar Perdomo

Case: 15-40958 Document: 00513679361 Page: 1 Date Filed: 09/15/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-40958 FILED
Summary Calendar September 15, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
OSCAR VIRGILIO PERDOMO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:14-CR-766-1
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *
Oscar Virgilio Perdomo (Perdomo) pleaded guilty to illegal reentry
following deportation. He contends that the district court erred by entering a
judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2), and he
maintains that this court should remand the case to the district court to reform
the judgment to reflect a conviction pursuant to § 1326(b)(1). Perdomo
contends that he did not have a qualifying conviction for an aggravated felony
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-40958
and that the district court erroneously relied upon his prior conviction in
Arkansas for residential burglary. Because Perdomo raises his arguments for
the first time on appeal, we review for plain error only. See Puckett v. United
States, 556 U.S. 129, 135 (2009).
Section 1326(b)(2) subjects an alien to a maximum term of imprisonment
of 20 years if his prior removal was after a conviction for an aggravated felony.
The term “aggravated felony” is defined in 8 U.S.C. § 1101(a)(43) as, inter alia,
an enumerated offense, like burglary, for which the prison term is at least one
year, or a “crime of violence,” as defined in 18 U.S.C. § 16, for which the prison
term is at least one year. § 1101(a)(43)(F), (G).
Perdomo maintains that his prior conviction in Arkansas for residential
burglary, pursuant to Arkansas Code § 5-39-201(a)(1), does not constitute the
enumerated offense of burglary and, therefore, the crime is not an aggravated
felony under § 1101(a)(43)(G). He asserts that the Arkansas statute is broader
than the generic definition of “burglary” because it includes the unlawful entry
of vehicles. Perdomo also argues that his conviction is not a “crime of violence”
for purposes of § 1101(a)(43)(F). He alleges that the offense does not have the
element of force needed to qualify it as a “crime of violence” under § 16(a), and
cannot be a “crime of violence” under § 16(b) because the definition of “crime of
violence” in that subsection must be struck as unconstitutionally vague in light
of the Supreme Court’s decision invalidating a similar clause in Johnson v.
United States, 135 S. Ct. 2551 (2015).
We need not resolve whether Perdomo’s offense is the equivalent of the
enumerated offense of “burglary” for purposes of § 1101(a)(43)(G) because he
has not established that the conviction is not an aggravated felony pursuant to
§ 1101(a)(43)(F). His argument that § 16(b) is unconstitutionally vague on its
face in light of Johnson is foreclosed by our recent decision in United States v.
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No. 15-40958
Gonzalez-Longoria, ___ F.3d ___, No. 15-40041, 2016 WL 4169127, 2-6 (5th Cir.
Aug. 5, 2016) (en banc), and § 16(b) is not vague as applied to him. See Leocal
v. Ashcroft, 543 U.S. 1, 10 (2004); United States v. Echeverria-Gomez, 627 F.3d
971, 977 (5th Cir. 2010). He does not otherwise contest whether his conviction,
by its nature, involves a substantial risk that physical force against the person
or property of another may be used during the course of the offense and, thus,
has waived any claim that his conviction does not, in fact, satisfy the definition
of “crime of violence” in § 16(b). See United States v. Scroggins, 599 F.3d 433,
446-47 (5th Cir. 2010).
In light of the foregoing, Perdomo has not shown that the district court
plainly erred in finding that his Arkansas conviction for residential burglary
is an aggravated felony. Thus, the district court correctly entered judgment
pursuant to § 1326(b)(2), and no reformation of the judgment is warranted. His
conviction and sentence are AFFIRMED.
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