United States v. Jossue Agrueta-Vasquez

697 F. App'x 419

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 22, 2017
• Docket: 15-41132 Summary Calendar
• Status: Unpublished

Opinion

PER CURIAM: *

Jossue Agrueta-Vasquez appeals his guilty plea conviction for illegal reentry into the United States. He contends that the judgment erroneously indicates that he was convicted and sentenced under 8 U.S.C. § 1326(b)(2), which applies when the defendant was previously removed subsequent to a conviction for an aggravated felony. Although Agrueta-Vasquez has completed his federal sentence and has been deported, his challenge is not moot because an erroneous conviction under § 1326(b)(2) could have collateral consequences for him, including rendering him permanently inadmissible to the United States. See United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017).

According to Agrueta-Vasquez, the district court erred in determining that his 1996 Virginia conviction for petit larceny constituted an aggravated felony for purposes of § 1326(b)(2) because, unlike the generic definition of theft, larceny in Virginia can be committed based on the acquisi tion of property through fraudulently obtained consent. Because Agrueta-Vasquez presents this argument for the first time on appeal, plain error review applies. See United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009).

To satisfy the plain error standard, “the legal error must be clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). As Agrueta-Vasquez concedes, he cannot demonstrate plain error in light of the decision in United States v. Rodriguez-Salazar, 768 F.3d 437, 438 (5th Cir. 2014).

AFFIRMED.

* Pursuant to 5th Cir, R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.