     Case: 16-40829    Document: 00514106534      Page: 1   Date Filed: 08/08/2017




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

                                 No. 16-40829
                                                                           Fifth Circuit

                                                                         FILED
                              Conference Calendar                   August 8, 2017
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk


             Plaintiff–Appellee,

v.

MARTIN OVALLE-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 DENNIS, PRADO, and OWEN, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      Martin Ovalle-Garcia pleaded guilty to illegal reentry after conviction of
an aggravated felony under 8 U.S.C. § 1326(a) and (b)(2). He received a 12-
level sentencing enhancement because he was previously deported after a
conviction for a felony that was a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2015). This Court affirmed the conviction and sentence. United States v.
Ovalle-Garcia, 672 F. App’x 421 (5th Cir. 2016) (per curiam). The Supreme
Court then vacated the judgment and remanded for further consideration in
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                                  No. 16-40829
light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Ovalle-Garcia v.
United States, 137 S. Ct. 2215 (2017). In Esquivel-Quintana, the Court
addressed the generic meaning of sexual abuse of a minor, which is an
aggravated felony. See 8 U.S.C. § 1101(a)(43)(A). The Court held that “in the
context of statutory rape offenses that criminalize sexual intercourse based
solely on the age of the participants, the generic federal definition of sexual
abuse of a minor requires that the victim be younger than 16.” Esquivel-
Quintana, 137 S. Ct. at 1568.
        On remand, the parties agree that the predicate offense of which Ovalle-
Garcia was convicted—Tennessee statutory rape—is broader than the generic
crime of statutory rape because the age of consent in Tennessee is 18. Thus,
Ovalle-Garcia’s statutory rape conviction does not qualify either as an
aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) or as a crime of violence
for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
        Ovalle-Garcia requests a limited remand to the district court for the
purpose of correcting the judgment to reflect the fact that he was previously
deported after a conviction of a non-aggravated felony. See United States v.
Quintanilla-Ventura, 616 F. App’x 189 (5th Cir. 2015) (providing this relief);
United States v. Mejia, 589 F. App’x 296 (5th Cir. 2015) (same). We explained
in United States v. Briceno, 681 F. App’x 334 (5th Cir. 2017), that this error in
the judgment is neither harmless nor moot because the erroneous judgment
could    have   collateral   consequences.   Specifically,   a   conviction   under
§ 1326(b)(2)—involving a prior conviction of an aggravated felony—is itself an
aggravated felony, “rendering [the defendant] permanently inadmissible to the
United States.” Id. Thus, we REMAND to the district court for the limited
purpose of correcting the judgment to reflect the correct offense of conviction
as under § 1326(b)(1).


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                                No. 16-40829
      Because Ovalle-Garcia has served his sentence and been deported, he
does not request resentencing. In light of this express waiver of his challenge
to the sentence, we DISMISS his appeal of the sentence.




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