     Case: 16-41140      Document: 00514823749         Page: 1    Date Filed: 02/05/2019




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

                                                                                   FILED
                                      No. 16-41140                           February 5, 2019
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


              Plaintiff - Appellee

v.

MARCO ANTONIO HERNANDEZ-PRADO,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-961-1


Before JOLLY, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
       Marco Antonio Hernandez-Prado pleaded guilty to illegally reentering
this country following a deportation that was subsequent to an aggravated
felony. He admitted at rearraignment that he had been convicted of Texas
aggravated assault with a deadly weapon in April 2001. The district court
classified this prior conviction as an aggravated felony under 8 U.S.C.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-41140
§ 1326(b)(2), 1 which increased Hernandez-Prado’s statutory maximum from
two years to 20 years and affected his Guidelines calculation. 2 See 8 U.S.C.
§ 1326(a), (b)(2). Hernandez-Prado was ultimately sentenced to 72 months,
five months below the suggested Guidelines range of 77 to 96 months. He
appeals, arguing that he was subject to the two-year maximum sentence set
out in § 1326(a), and, because his 72-month sentence exceeds that maximum,
the sentence is illegal. We AFFIRM.
                                              I.
       Under 8 U.S.C. § 1326(a), an illegal-reentry defendant faces a maximum
sentence of two years in prison. That statutory maximum increases to 10 years
for an illegal-reentry defendant whose prior removal was subsequent to a
felony conviction, 8 U.S.C. § 1326(b)(1), and it increases to 20 years for an
illegal-reentry defendant whose prior deportation was subsequent to an
aggravated felony, 8 U.S.C. § 1326(b)(2). Hernandez-Prado argues that his
conviction for Texas aggravated assault with a deadly weapon was not an
aggravated felony under § 1326(b)(2), and therefore his proper statutory
maximum sentence was two years.
       Hernandez-Prado’s argument is unavailing. Section 1326(b)(1) provides
for a 10-year maximum prison term for defendants whose prior removal was
subsequent to any felony conviction other than an aggravated felony.
§ 1326(b)(1). We have previously found that a Texas conviction for aggravated


       1 The judgment in this case reflects that Hernandez-Prado was convicted under
§ 1326(b), but it does not identify any specific subsection. However, the judgment describes
the offense as illegal reentry following a prior deportation that was subsequent to the
commission of an aggravated felony, and that description indicates that the conviction is
under § 1326(b)(2).
       2 The PSR referred to the prior conviction as an aggravated felony and used it to apply

a 16-level increase in Hernandez-Prado’s offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and
to assign him three criminal history points under U.S.S.G. § 4A1.1(a) and U.S.S.G.
§ 4A1.2(k)(1). Hernandez-Prado does not challenge the application of the Guidelines in this
appeal.
                                              2
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                                 No. 16-41140
assault qualifies as a felony for purposes of § 1326(b)(1) as long as a term of
imprisonment is imposed. See United States v. Mondragon-Santiago, 564 F.3d
357, 367-69 (5th Cir. 2009). Hernandez-Prado was sentenced to serve five
years in prison for his Texas aggravated assault conviction, which the parties
agree could correctly be classified as a felony conviction for purposes of
§ 1326(b)(1).   As the below-Guidelines 72-month sentence imposed upon
Hernandez-Prado does not exceed the 10-year statutory maximum sentence
applicable to an offense under § 1326(b)(1), his argument that he received an
illegal sentence is without merit.
                                      II.
      That Hernandez-Prado’s sentence is legal, however, does not answer the
question whether his conviction under § 1326(b)(2) was proper. To be convicted
of illegal reentry under § 1326(b)(2), a defendant’s removal must have been
“subsequent to a conviction for commission of an aggravated felony.” The term
“aggravated felony” is defined at 8 U.S.C. § 1101(a)(43) to include a “crime of
violence” for which the term of imprisonment is at least one year. A crime of
violence is defined in 18 U.S.C. § 16—under the “elements clause” of § 16(a) as
“an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another,” and under the now-
invalid “residual clause” of § 16(b) as “any other offense that is a felony and
that, by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.” 18 U.S.C. § 16(a)-(b); Sessions v. Dimaya, 138 S. Ct. 1204, 1210-11
(2018) (finding that § 16(b), as incorporated into the Immigration and
Nationality Act, is unconstitutionally vague). If Hernandez-Prado’s sentence
under § 1326(b)(2) rested solely on § 16(b), it is improper, and the conviction
must be reformed to reflect that he was sentenced under § 1326(b)(1). United
States v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018). However, if the predicate
                                       3
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                                      No. 16-41140
offense qualifies as a crime of violence under the elements clause of § 16(a), the
judgment under § 1326(b)(2) is proper. See United States v. Garrido, 736 F.
App’x 77, 78 (5th Cir. 2018).
       Hernandez-Prado concedes that, at sentencing, he did not challenge the
classification of his prior conviction as an aggravated felony. 3                  Because
Hernandez-Prado did not raise this claim before the district court, we review
for plain error. See United States v. Suarez, 879 F.3d 626, 630 (5th Cir. 2018).
To establish plain error, Hernandez-Prado must prove (1) some error or defect
(2) that is clear or obvious (3) that affected his substantial rights. Puckett v.
United States, 556 U.S. 129, 135 (2009). If those elements are met, we have
the discretion to remedy the error if it “seriously affects the fairness, integrity
or public reputation of judicial proceedings.” Id. (cleaned up). Given the
conflicting caselaw in our circuit, we cannot say that the district court plainly
erred in classifying Hernandez-Prado’s conviction for aggravated assault with
a deadly weapon as a crime of violence. See United States v. Perez-de Leon, No.
15-40761, 2018 WL 6118685, at *1-4 (5th Cir. Nov. 20, 2018) (identifying
conflicting decisions). The judgment of the district court is AFFIRMED.




       3  Though defense counsel at rearraignment reserved the right to contest the
classification of Hernandez-Prado’s prior conviction as an aggravated felony at sentencing,
counsel did not raise any objection at sentencing and in fact conceded that Hernandez-Prado’s
prior conviction was an aggravated felony. Hernandez-Prado was represented by different
attorneys at rearraignment and sentencing.
                                             4
