     Case: 14-41437     Document: 00515017531        Page: 1    Date Filed: 07/01/2019




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit


                                  No. 14-41437                                FILED
                                Summary Calendar                           July 1, 2019
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

              Plaintiff - Appellee

v.

ELDER ROCAEL TZACIR-GARCIA,

              Defendant - Appellant




                  Appeal from the United States District Court
                       for the Southern District of Texas


 ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before JOLLY, SMITH, and GRAVES, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      In 2014, Elder Rocael Tzacir-Garcia pled guilty to one count of illegal
reentry in violation of 8 U.S.C. § 1326(a) and 1326(b)(2). Tzacir-Garcia was
sentenced to forty-one months’ imprisonment. He appealed, arguing that the
district court committed plain error by concluding that he qualified for a
sentencing enhancement under § 1326(b)(2) 1 because of a previous conviction


      1  Section 1326(b)(2) provides that any alien “whose removal was subsequent to a
conviction for commission of an aggravated felony . . . shall be fined under such title,
imprisoned not more than 20 years, or both.”
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                                       No. 14-41437
for an aggravated felony, as defined in 8 U.S.C. § 1101 (a)(43).                      Section
1101(a)(43) incorporates the definition of crime of violence used in 18 U.S.C.
§ 16(b). We summarily affirmed Tzacir-Garcia’s sentence, concluding that his
prior Texas robbery conviction was a crime of violence under § 16(b). United
States v. Tzacir-Garcia, 674 F. App’x 387 (5th Cir. 2017); see Tex. Penal Code
Ann. § 29.02(a)(1).
       The Supreme Court vacated our decision and remanded for us to
reconsider in the light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which held
§ 16(b) was unconstitutionally vague. Alvaro-Velasco v. United States, 138
S.Ct. 1977 (2018). At that time, Tzacir-Garcia’s conviction for Texas robbery
was not a crime of violence under § 16(a) because we had held that it lacked as
an element the “use, attempted use, or threatened use of physical force.”
United States v. Burris, 896 F.3d 320 (5th Cir. 2018).
       Upon remand, we directed the parties to file supplemental briefing.
Tzacir-Garcia asked that we remand this case for the district court to amend
the judgment to reflect conviction and sentencing under § 1326(b)(1), 2 not
§ 1326(b)(2). 3 The United States agreed that we should reform the judgment.
See United States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018) (reforming
judgment to reflect sentencing under § 1326(b)(1) without remanding to the
district court).




       2 Section 1326(b)(1) provides that any alien “whose removal was subsequent to a
conviction for commission of three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony) . . . shall be fined under Title
18, imprisoned not more than 10 years, or both.”
       3 While Tzacir-Garcia has completed his sentence, this issue is not moot because a
conviction under § 1326(b)(2) has the collateral consequence of rendering an alien
permanently inadmissible to the United States. See United States v. Ovalle-Garcia, 868 F.3d
313, 314 (5th Cir. 2017).

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                                 No. 14-41437
      Since that supplemental briefing was filed, however, the opinion in
Burris was withdrawn, and the panel, in the light of Stokeling v. United States,
139 S.Ct. 544 (2019), and United States v. Reyes-Contreras, 910 F.3d 169 (5th
Cir. 2018) (en banc), issued a new opinion holding that Texas robbery requires
the “use, attempted use, or threatened use of physical force” and is therefore a
crime of violence under the Armed Career Criminal Act. United States v.
Burris, 920 F.3d 942, 945 (5th Cir. 2019).        Accordingly, Tzacir-Garcia’s
conviction for Texas robbery is also a crime of violence under § 16(a) and thus
an aggravated felony for purposes of § 1326(b)(2). See United States v. Plaza-
Montecillo, No. 18-10688, 2019 WL 2406627, at *1 (5th Cir. June 6, 2019) (per
curiam) (unpublished) (holding Texas robbery conviction qualified as an
aggravated felony). We perceive no error in Tzacir-Garcia’s conviction and
sentence under § 1326(b)(2). The judgment of the district court is therefore
                                                                   AFFIRMED.




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