United States v. Ixcopal-Hernandez

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 9, 2023
• Docket: 21-50807
• Status: Unpublished

Opinion

Case: 21-50807 Document: 00516640334 Page: 1 Date Filed: 02/09/2023

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 21-50807 Summary Calendar FILED ____________ February 9, 2023 Lyle W. Cayce United States of America, Clerk

Plaintiff—Appellee,

versus

Alex Estuardo Ixcopal-Hernandez,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 4:21-CR-249-1 ______________________________

Before King, Higginson, and Willett, Circuit Judges. Per Curiam: * Alex Estuardo Ixcopal-Hernandez appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326(b)(2). He argues that his judgment should reflect a conviction pursuant to § 1326(b)(1) because his predicate offense, a prior California conviction for possession of a controlled substance

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 21-50807 Document: 00516640334 Page: 2 Date Filed: 02/09/2023

No. 21-50807

for sale, was not properly classified as an aggravated felony such that it would support a conviction under § 1326(b)(2). Because Ixcopal-Hernandez did not object to the entry of a conviction under § 1326(b)(2), we review for plain error only. See United States v. Trujillo, 4 F.4th. 287, 291 (5th Cir. 2021), cert. denied, 142 S. Ct. 837 (2022). As an initial matter, although Ixcopal-Hernandez has been released from prison and may have already been removed from the United States, this appeal is not moot because his conviction under § 1326(b)(2) has continuing collateral consequences. See United States v. Vega, 960 F.3d 669, 673 (5th Cir. 2020); United States v. Tzacir-Garcia, 928 F.3d 448, 450 & n.3 (5th Cir. 2019). Courts employ a categorical approach to determine whether a state offense qualifies as an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013); Vega, 960 F.3d at 675. We have determined that a conviction pursuant to California Health and Safety Code § 11378 is not categorically an aggravated felony. See United States v. Castellon-Aragon, 772 F.3d 1023, 1024-26 (5th Cir. 2014). Under the modified categorical approach, a conviction would constitute an aggravated felony only if documents, such as the charging document or plea agreement, establish that the defendant’s conviction was based on a substance prohibited under the Controlled Substances Act (CSA). See United States v. Gomez-Alvarez, 781 F.3d 787, 792, 794-96 (5th Cir. 2015). Ixcopal-Hernandez argues that the record did not contain any approved documents from which the district court could have determined that his conviction under § 11378 involved a substance prohibited under the CSA. He is correct. However, the Government has supplemented the record on appeal. Among the documents submitted by the Government was a felony complaint charging Ixcopal-Hernandez with a violation of California

2 Case: 21-50807 Document: 00516640334 Page: 3 Date Filed: 02/09/2023

Health and Safety Code § 11378, asserting that he unlawfully possessed methamphetamine for the purpose of a sale. Because the felony complaint served as the charging document, the complaint is an approved source to establish the fact of a prior conviction under the modified categorical approach. See Gomez-Alvarez, 781 F.3d at 794-96. Accordingly, the district court did not plainly err in concluding that Ixcopal-Hernandez’s prior California conviction of possession for sale of a controlled substance was an aggravated felony. See Castellon-Aragon, 772 F.3d at 1024-26.

The judgment of the district court is AFFIRMED.