     Case: 16-40206      Document: 00513886503         Page: 1    Date Filed: 02/22/2017




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

                                      No. 16-40206                            FILED
                                                                       February 22, 2017
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

              Plaintiff - Appellee

v.

JUAN ARRIAGA NUNEZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC 5:15-CR-900-1


Before REAVLEY, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       This Defendant appeals from a judgment adjudicating him guilty of
8 U.S.C. §§1326(a) and 1326(b)(2). His claim is that he was convicted under
§ 1326(b)(1) and not § 1326(b)(2), and he argues that his prior conviction was
not for an aggravated felony.
       Only in this appeal has this question been raised. The presentence
report stated that Defendant was subject to the 20-year term of imprisonment


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40206
pursuant to § 1326(b)(2) because he had been convicted of attempted sexual
abuse in the first degree and of attempted delivery of a controlled substance to
a minor. The Defendant pleaded guilty without any objection to this PSR. The
Government says Defendant pleaded guilty to attempted delivery of a
controlled substance to a minor, an aggravated felony.
       The Defendant does not seek to be resentenced, only a change of the
offense as decided in the district court. This court has no cause to change the
crime because Defendant now says it is not correct. 1
       AFFIRMED.




       1 Relying on the principle that a judgment may be affirmed for any reason supported
by the record, we have in similar circumstances affirmed sentencing under § 1326(b)(2) where
the defendant has a qualifying conviction other than that identified at sentencing. United
States v. Garcia-Hernandez, 613 F. App’x 437, 438 (5th Cir. 2015) (per curiam). Here, while
the Government concedes that the conviction for attempted sexual abuse does not qualify as
an aggravated felony, the parties hotly contest whether the drug offense does qualify.
Nunez’s arguments run headlong into the plain error standard of review. There is no
authority supporting the proposition that Nunez has lucked into a more forgiving standard
of review through inaction, and no authority for the proposition that affirming the judgment
on an alternative basis deprives the defendant of his right to be present at sentencing.
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                                  No. 16-40206
JAMES E. GRAVES, JR., Circuit Judge, dissenting:
      I would remand for the limited purpose of reforming the judgment to
reflect Juan Arriaga Nunez’s conviction under 8 U.S.C. §1326(b)(1) because the
parties agree that attempted sexual abuse is not an aggravated felony under 8
U.S.C. §1326(b)(2). Therefore, I respectfully dissent.
      Section 1326(b)(2) states that an alien “whose removal was subsequent
to a conviction for commission of an aggravated felony, such alien shall be fined
under such title, imprisoned not more than 20 years, or both.”            8 U.S.C.
§1326(b)(2).
      Arriaga Nunez pleaded guilty without objection to the presentence
report (PSR). The PSR specifically identified the aggravated felony which
subjected Arriaga Nunez to the penalty provision of section 1326(b)(2), as
follows:
      Accordingly, the defendant is subject to the penalty provisions
      pursuant to 8 U.S.C. §1326(b)(2) based on his prior crime of
      violence conviction for Attempted Sexual Abuse in the First Degree
      in the Circuit Court of the State of Oregon for the County of
      Washington, under Case No. C041998CR, and subsequent
      deportation to Mexico on June 23, 2015, which is the controlling
      date of deportation.

      The district court adopted the PSR without change. Further, the district
court explicitly stated that it was sentencing Arriaga Nunez “one month above
the low end in consideration” of certain factors such as his employment and
the fact that this was his first conviction for illegal reentry.
       “[A] defendant has a constitutional right to be present at sentencing.”
United States v. Bigelow, 462 F.3d 378, 380 (5th Cir. 2006) (alteration in
original); see also Fed. R. Crim. P. 43. If a defendant fails to object, we review
for plain error. See United States v. Jones, 484 F.3d 783, 792 (5th Cir. 2007).

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                                  No. 16-40206
To establish plain error, Arriaga Nunez must show there was plain error that
affected his substantial rights and seriously affected the fairness, integrity or
public reputation of the judicial proceedings. Id.
      Arriaga Nunez’s sentence of 42 months imprisonment and three years of
supervised release does not exceed the sentence available under § 1326(b)(1) of
ten years’ imprisonment and three years of supervised release. But, the
determination that the statutory maximum term was twenty years under
§1326(b)(2) based on the attempted sexual abuse conviction may very well have
influenced the district court’s choice of sentence. See Apprendi v. New Jersey,
530 U.S. 466, 522 (2000).
      The statutory maximum penalty for an offense is an indicator of the
seriousness of the offense to which the district court must tailor its sentence.
See 18 U.S.C. § 3553(a)(2). Also, a conviction under 8 U.S.C. § 1326(b)(2) is
itself considered an aggravated felony. See 8 U.S.C. §1101(a)(43)(O); see also
United States v. Gamboa-Garcia, 620 F.3d 546, 549 (5th Cir. 2010) (prior
judgment reflecting conviction and sentencing under § 1326(b)(2) precluded
attack on “aggravated felony” enhancement).
      The inability to show that an error affected the sentencing outcome may
prohibit vacatur of a sentence or resentencing. United States v. Mondragon-
Santiago, 564 F.3d 357, 369 (5th Cir. 2009). Notwithstanding that Arriaga
Nunez is arguably able to show that it affected his substantial rights, this court
is not precluded from remanding for the sole purpose of reforming the
judgment to reflect the proper statute of conviction. Id.
      On appeal, the Government concedes that the prior conviction for
attempted sexual abuse does not qualify as an aggravated felony. Under our
precedent, that is sufficient for this matter to be remanded to the district court
for reformation of the judgment. See Mondragon-Santiago, 564 F.3d at 369;
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                                       No. 16-40206
see also United States v. Pineda-Oyuela, 644 F. App’x 309, 310 (5th Cir. 2016);
United States v. Medina-Villarreal, 608 F. App’x 255 (5th Cir. 2015); United
States v. Jimenez-Laines, 342 F. App’x 978 (5th Cir. 2009); and United States
v. Campos, 277 F. App’x 505, 506 (5th Cir. 2008).
       The majority declines to remand for reformation and dismisses the
appeal based on the Government’s argument that Arriaga Nunez’s prior
conviction for attempt to deliver a controlled substance to a minor should be
used as the aggravated felony.             But the PSR explicitly states that the
attempted sexual abuse conviction is the basis for the aggravated felony
enhancement.       Further, Arriaga Nunez disputes that the drug conviction
qualifies as an aggravated felony.
       Regardless, neither the Government nor the majority offers any
authority for the proposition that the Government should now be able to
substitute the drug conviction. 1          While the PSR recounted all of Arriaga
Nunez’s criminal history, it explicitly stated that attempted sexual abuse was
the aggravated felony under section 1326(b)(2). The district court adopted the
PSR without change and indicated it was only considering what was in that
report. There is no indication that the district court made any finding that the
drug conviction qualified as an aggravated felony.
       Where a defendant had no opportunity to address the issue, this court
reviews for an abuse of discretion. See United States v. Torres-Aguilar, 352



       1 The majority cites United States v. Garcia-Hernandez, 613 F. App’x 437, 438 (5th
Cir. 2015). However, notwithstanding that Garcia-Hernandez is an unpublished case and
not binding precedent under Fifth Circuit Rule 47.5.4, this court cited authority that Garcia’s
conviction from Illinois for unlawful use of a firearm by a felon indeed qualified as an
aggravated felony. Here, the majority merely swaps the sexual abuse conviction explicitly
stated in the PSR and adopted by the district court for the drug offense without reaching the
conclusion that the drug offense even qualifies as an aggravated felony and without giving
Nunez an opportunity to object, as discussed herein.
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                                 No. 16-40206
F.3d 934, 935 (5th Cir. 2003); see also United States v. Warden, 291 F.3d 363,
365 n.1 (5th Cir. 2002); United States v. Sahakian, 14 F. App’x 876, 877 (5th
Cir. 2001). Further, the Government has the burden of proving the elements
of the offense and the application of any enhancements. See United States v.
Romans, 823 F.3d 299, 317-18 (5th Cir. 2016); see also United States v.
Rodriguez, 630 F.3d 377, 380 (5th Cir. 2011). This court has also said:
     While the Government has the burden to prove, by a
     preponderance of the evidence, the facts which are necessary to
     support the enhancement, “[a]s a general rule, information in the
     pre-sentence report is presumed reliable and may be adopted by
     the district court without further inquiry if the defendant fails to
     demonstrate by competent rebuttal evidence that the information
     is materially untrue, inaccurate, or unreliable.”
United States v. Olivares, 833 F.3d 450, 452 (5th Cir. 2016).
      To allow the Government to now substitute the drug conviction would
effectively eliminate Arriaga Nunez’s ability to be present or object to any
claim that he is subject to the penalty provisions of 8 U.S.C. §1326(b)(2) based
on his prior crime of attempt to deliver a controlled substance to a minor. Also,
we are unable to review for an abuse of discretion the district court’s decision
on whether the drug conviction qualified as an aggravated felony because the
district court adopted the PSR without change and the PSR explicitly stated
that the attempted sexual abuse conviction qualified as the aggravated felony.
There is no indication that the district court made any determination of
whether Arriaga Nunez’s prior conviction for attempt to deliver a controlled
substance to a minor qualifies as an aggravated felony.           Any potential
conjecture as to whether Arriaga Nunez would have objected to the PSR if the
drug offense had served as the qualification for section 1326(b)(2) would be
inappropriate. In an immigration context, the Supreme Court has found no



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                                No. 16-40206
basis for such conjecture. Carachuri –Rosendo v. Holder, 560 U.S. 563, 580
(2010).
      For these reasons, I would remand for reformation of the judgment to
properly reflect conviction and sentencing under §1326(b)(1) rather than (2).
Respectfully, I dissent.




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