Unreported / Non-Citable
Background
Pedro Garcia Lopez was convicted of illegally reentering the United States in violation of 8 U.S.C. § 1326 and received a within-guidelines sentence. The written judgment cited § 1326(a) and the aggravated-felony enhancement in § 1326(b)(2).
On appeal, Lopez argued for the first time that § 1326(b)(2) did not apply because his pre-removal offenses resulted in deferred-adjudication probation rather than aggravated-felony convictions. He also challenged the term of supervised release as insufficiently individualized and preserved an argument that § 1326(b)’s recidivism enhancement is unconstitutional.
The Court’s Holding
The Fifth Circuit agreed that Lopez had not sustained an aggravated-felony conviction before removal and that the judgment therefore should not cite § 1326(b)(2). Because Lopez did not raise the issue below, however, plain-error review applied, and he failed to show that the mistake affected his substantial rights. The court accordingly affirmed his conviction and sentence while remanding for the judgment to be reformed to reflect § 1326(b)(1).
The court also upheld supervised release. It concluded that the district court conducted an individualized assessment based on the statutory sentencing factors and Lopez’s criminal history, reasonably finding supervision necessary to protect the public and add deterrence. Lopez’s constitutional challenge to § 1326(b) was foreclosed by circuit precedent.
Key Takeaways
- Deferred-adjudication probation did not qualify Lopez for § 1326(b)(2)’s aggravated-felony enhancement.
- The erroneous statutory citation did not warrant reversal under plain-error review because Lopez failed to establish an effect on his substantial rights.
- The Fifth Circuit affirmed the conviction, sentence, and supervised-release term but remanded to correct the judgment to cite § 1326(b)(1).
Why It Matters
The decision distinguishes between a reversible sentencing error and an incorrect statutory designation in the written judgment. Even when a defendant was sentenced under the wrong subsection of § 1326(b), failure to satisfy plain-error review may leave the sentence intact while requiring only correction of the judgment.
It also confirms that supervised release in an illegal-reentry case may be upheld when the sentencing court ties it to the defendant’s history, public protection, and deterrence rather than imposing it without individualized reasoning.