United States v. Torres, 050619 FED5, 16-20191

Docket Nº:16-20191
Opinion Judge:LESLIE H. SOUTHWICK JUDGE.
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee v. ALBIN ALEXANDER TORRES, also known as Alvin Alexander Torres, also known as Albin Alexander Torres-Menjivar, also known as Albin Torres-Menjybar, Defendant-Appellant
Judge Panel:Before JOLLY, SOUTHWICK, and OLDHAM, Circuit Judges.
Case Date:May 06, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee

v.

ALBIN ALEXANDER TORRES, also known as Alvin Alexander Torres, also known as Albin Alexander Torres-Menjivar, also known as Albin Torres-Menjybar, Defendant-Appellant

No. 16-20191

United States Court of Appeals, Fifth Circuit

May 6, 2019

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, SOUTHWICK, and OLDHAM, Circuit Judges.

LESLIE H. SOUTHWICK JUDGE.

In 2017, we summarily affirmed the defendant's sentence for his conviction of an illegal reentry subsequent to a deportation. We relied on Fifth Circuit precedent that his prior Texas aggravated assault conviction was a crime of violence under 18 U.S.C. § 16(b), which permitted a higher maximum sentence for his illegal reentry. The Supreme Court granted the defendant's petition for writ of certiorari, vacated our decision, and remanded for us to consider the effect of that Court's decision that Section 16(b) was unconstitutionally vague. Consideration given, we conclude the prior state conviction is a crime of violence under Section 16(a). AFFIRMED.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2015, Albin Alexander Torres pled guilty to violating 8 U.S.C. § 1326(a) for his illegal reentry into the United States after being removed in 2012. Relevant to his sentence was a 2010 conviction for aggravated assault under a Texas statute. We will examine the Texas conviction in more detail later, but for now it suffices to say the presentence report considered that conviction to have been for an aggravated felony. The district court agreed. This is important because 8 U.S.C. § 1326(b)(2) increases the maximum sentence of imprisonment for a Section 1326(a) conviction to 20 years when the alien's "removal was subsequent to a conviction for commission of an aggravated felony." The district court did not sentence anywhere near that maximum, imposing 56 months in prison.

Section 1326 is part of the Immigration and Nationality Act, which lists more than a score of aggravated felonies. See 8 U.S.C. § 1101(a)(43). The relevant one here is "a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year." § 1101(a)(43)(F). The referenced Section 16 identifies two categories of crimes of violence: (a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or

(b) 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.

When we first considered Torres's argument that Section 1326(b)(2) should not apply, we applied a recent en banc decision of this court to hold that the language of Section 16(b) was not unconstitutionally vague. See United States v. Torres, 677 Fed.Appx. 145, 146 (5th Cir. 2017) (citing United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc), vacated, 138 S.Ct. 2668 (2018)). We therefore granted the government's motion for summary affirmance. See id. The Supreme Court returned this case to us for further consideration in light of Sessions v. Dimaya, 138 S.Ct. 1204 (2018), which declared Section 16(b) to be unconstitutionally vague. See Aguirre-Arellano v. United States, 138 S.Ct. 1978 (2018) (opinion addressing several petitioners, including Torres).

We received supplemental briefing and now take another look.

DISCUSSION

In the district court, Torres made the argument he has remade ever since, that his Texas aggravated assault was not a crime of violence under either subsection of Section 16. He was right about Section 16(b). We give de novo review to preserved legal issues such as Torres's argument on Section 16(a), and we review any relevant fact-finding by the district court for clear error. See United States v. Solis-Garcia, 420 F.3d 511, 514 (5th Cir. 2005).

Torres's sentence of 56 months' imprisonment is well under the 10-year maximum applicable even if his prior Texas assault conviction is not an aggravated felony. See 8 U.S.C. § 1326(b)(1). The goal of the appeal, though, is to have the...

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