United States v. Elder Tzacir-Garcia

928 F.3d 448

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 1, 2019
• Docket: 14-41437
• Status: Published

Opinion

E. GRADY JOLLY, Circuit Judge:

In 2014, Elder Rocael Tzacir-Garcia pled guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326 (a) and 1326(b)(2). Tzacir-Garcia was sentenced to forty-one months' imprisonment. He appealed, arguing that the district court committed plain error by concluding that he qualified for a sentencing enhancement under § 1326(b)(2) 1 because of a previous conviction for an aggravated felony, as defined in 8 U.S.C. § 1101 (a)(43). Section 1101(a)(43) incorporates the definition of crime of violence used in 18 U.S.C. § 16 (b). We summarily affirmed Tzacir-Garcia's sentence, concluding that his prior Texas robbery conviction was a crime of violence under § 16(b). United States v. Tzacir-Garcia , 674 F. App'x 387 (5th Cir. 2017) ; see Tex. Penal Code Ann. § 29.02 (a)(1).

The Supreme Court vacated our decision and remanded for us to reconsider in the light of Sessions v. Dimaya , --- U.S. ----, 138 S.Ct. 1204 , 200 L.Ed.2d 549 (2018), which held § 16(b) was unconstitutionally vague. Alvaro-Velasco v. United States , --- U.S. ----, 138 S.Ct. 1977 , 201 L.Ed.2d 238 (2018). At that time, Tzacir-Garcia's conviction for Texas robbery was not a crime of violence under § 16(a) because we had held that it lacked as an element the "use, attempted use, or threatened use of physical force." United States v. Burris , 896 F.3d 320 (5th Cir. 2018).

Upon remand, we directed the parties to file supplemental briefing. Tzacir-Garcia asked that we remand this case for the district court to amend the judgment to reflect conviction and sentencing under § 1326(b)(1), 2 not § 1326(b)(2). 3 The United States agreed that we should reform the judgment. See United States v. Godoy , 890 F.3d 531 , 542 (5th Cir. 2018) (reforming judgment to reflect sentencing under § 1326(b)(1) without remanding to the district court).

Since that supplemental briefing was filed, however, the opinion in Burris was withdrawn, and the panel, in the light of Stokeling v. United States , --- U.S. ----, 139 S.Ct. 544 , 202 L.Ed.2d 512 (2019), and United States v. Reyes-Contreras , 910 F.3d 169 (5th Cir. 2018) (en banc), issued a new opinion holding that Texas robbery requires the "use, attempted use, or threatened use of physical force" and is therefore a crime of violence under the Armed Career Criminal Act. United States v. Burris , 920 F.3d 942 , 945 (5th Cir. 2019). Accordingly, Tzacir-Garcia's conviction for Texas robbery is also a crime of violence under § 16(a) and thus an aggravated felony for purposes of § 1326(b)(2). See United States v. Plaza-Montecillo , No. 18-10688, 772 Fed.Appx. 84 , 84-85, 2019 WL 2406627 , at *1 (5th Cir. June 6, 2019) (per curiam) (unpublished) (holding Texas robbery conviction qualified as an aggravated felony). We perceive no error in Tzacir-Garcia's conviction and sentence under § 1326(b)(2). The judgment of the district court is therefore

AFFIRMED.

1 Section 1326(b)(2) provides that any alien "whose removal was subsequent to a conviction for commission of an aggravated felony ... shall be fined under such title, imprisoned not more than 20 years, or both."

2 Section 1326(b)(1) provides that any alien "whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony) ... shall be fined under Title 18, imprisoned not more than 10 years, or both."

3 While Tzacir-Garcia has completed his sentence, this issue is not moot because a conviction under § 1326(b)(2) has the collateral consequence of rendering an alien permanently inadmissible to the United States. See United States v. Ovalle-Garcia , 868 F.3d 313 , 314 (5th Cir. 2017).