     Case: 15-50691      Document: 00513682888         Page: 1    Date Filed: 09/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 15-50691                                   FILED
                                  Summary Calendar                         September 19, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUAN ANTONIO AGUERO AGUILAR,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:15-CR-378-1


Before HIGGINBOTHAM, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Juan Antonio Aguero Aguilar appeals the 24-month sentences imposed
following his guilty plea convictions for illegal reentry and false personation in
immigration matters. Relevant to this appeal, at sentencing, Aguilar received
an eight-level enhancement for having been previously deported following a
conviction of an aggravated felony.            He challenges this enhancement by
arguing that his prior conviction under Georgia Code Annotated § 16-11-131


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 15-50691       Document: 00513682888         Page: 2     Date Filed: 09/19/2016


                                       No. 15-50691

was not an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C) because the
Georgia statute defines a prior felony conviction more broadly than does
18 U.S.C. § 922(g)(1) (the statute referenced in the guidelines). 1 Specifically,
he argues that Georgia law defines a felony as a crime punishable by “‘one year
or more’” in prison, whereas § 922(g)(1) criminalizes possession of a firearm by
an individual previously convicted of “‘crime punishable by imprisonment for
a term exceeding one year.’” (emphasis added).
       Because Aguilar did not raise this specific objection in the district court,
we review only for plain error. United States v. Escalante-Reyes, 689 F.3d 415,
419 (5th Cir. 2012)(en banc)(explaining the elements of plain error review).
The term “aggravated felony,” for purposes of § 2L1.2(b)(1)(C), “has the
meaning given that term in 8 U.S.C. 1101(a)(43).” § 2L1.2 comment. (n. 3(A)).
Among the offenses that constitute an aggravated felony under 8 U.S.C.
§ 1101(a)(43) is “an offense described in” § 922(g)(1). § 1101(a)(43)(E)(ii).
       Generally, to determine whether a prior state conviction constitutes an
aggravated felony, we use a categorical approach, reviewing the statutory
elements of the prior state conviction (rather than the underlying facts) to
determine whether the state offense necessarily constitutes an aggravated
felony. See Nieto Hernandez v. Holder, 592 F.3d 681, 684, 686 (5th Cir. 2009);
United States v. Gutierrez-Rostro, 537 F. App’x 586, 586-87 (5th Cir. 2013)
(addressing whether § 16-11-131 swept more broadly than § 922(g)(1), and
therefore did not constitute an aggravated felony for purposes of
§ 2L1.2(b)(1)(C), because § 16-11-131 prohibited possession of antique
firearms).    If a statute has disjunctive subsections, we apply a modified

       1   Aguero also argues that his § 2L1.2(b)(1)(C) enhancement is improper because §
16-11-131 does not include an interstate commerce element; in his initial brief, he conceded
that this argument is foreclosed by this court’s decision in United States v. Nieto Hernandez,
592 F.3d at 681, 684-86 (5th Cir. 2009). Since that time, the Supreme Court rejected this
argument in Torres v. Lynch, 136 S. Ct. 1619, 1622-23 (2016).


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                                 No. 15-50691

categorical approach to ascertain under which statutory subsection the
defendant was convicted. Descamps v. United States, 133 S. Ct. 2276, 2283-86
(2013).
      Both parties agree that this case presents an issue of first impression in
this court. The parties also engage in a complex analysis of the statutes, and
they disagree about whether the definition of felony as “exceeding” one year or
“one year or more” is even subject to the categorical or modified categorical
approach. While the fact that a case is one of first impression does not preclude
a finding of plain error, where, as here, the questions and relevant analytical
framework are both complex and unanswered, the error, if any, is not plain.
See United States v. Bishop, 603 F.3d 279, 281 (5th Cir. 2010); United States v.
Ellis, 564 F.3d 370, 377 (5th Cir. 2009)(where court has to “traverse” a complex
“decisional path,” any resulting error is not “plain”). We AFFIRM.




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