United States v. Garcia-Marcelo

United States of America, Plaintiff-Appellee, v. Israel Garcia-Marcelo, Defendant-Appellant.

No. 21-50700

United States Court of Appeals, Fifth Circuit

August 25, 2022

Appeal from the United States District Court for the Western District of Texas USDC No. 2:21-CR-141-1

Before Jones, Ho, and Wilson, Circuit Judges.

PER CURIAM: ^[*]

Israel Garcia-Marcelo pleaded guilty to one count of illegal reentry. On appeal, he contends that the district court erred in entering judgment under 8 U.S.C. § 1326(b)(2) based on his prior conviction under Louisiana Revised Statutes § 14:81(A). Garcia also argues that his written judgment includes various discretionary conditions of supervised release that were not pronounced at sentencing.

We agree with Garcia as to both issues. Accordingly, we vacate his sentence in part and remand for the district court to reform and amend its written judgment in accordance with this opinion.

I.

In 2016, Garcia, a citizen of Mexico, was convicted of "indecent behavior with a juvenile" in violation of § 14:81(A) of the Louisiana Revised Statutes and sentenced to 32 months' imprisonment. Garcia was deported after serving his sentence. In 2021, Garcia pleaded guilty to illegal reentry in violation of 8 U.S.C. § 1326(a).

Garcia's presentence report (PSR) calculated a guidelines range of 15 to 21 months' imprisonment and explained that, because of his 2016 Louisiana conviction, Garcia was subject to a statutory maximum sentence of twenty years' imprisonment under 8 U.S.C. § 1326(b)(2). The PSR went on to detail six special conditions of supervised release that it recommended imposing "[i]n addition to the mandatory and standard conditions adopted by the Court."

The district court sentenced Garcia to an above-Guidelines sentence of 30 months' imprisonment and a three-year term of supervised release. The district court did not orally adopt the PSR at sentencing. However, the district court did impose special conditions of supervised release that were virtually identical to those recommended in the PSR. The district court also informed Garcia that, in the event he was deported, "[i]t would be a violation of [his] supervised release" to "return to the United States."

After sentencing, the district court issued its written judgment which stated that Garcia was convicted of illegal reentry under 8 U.S.C. § 1326(a) and (b)(2). The written judgment included the special conditions of supervised release that were discussed at sentencing, along with nine "mandatory" and seventeen "standard" conditions of supervised release that the district court had not referenced. Garcia timely appealed.

On appeal, Garcia contends that (1) the district court erred by entering judgment under § 1326(b)(2) based on his Louisiana conviction because it does not qualify as an "aggravated felony" and (2) that the district court failed to orally pronounce discretionary conditions of supervised release that were included in the written judgment.

II.

We start with Garcia's claim that the district court erred by entering judgment under 8 U.S.C. § 1326(b)(2).

A.

Because Garcia raises this argument for the first time on appeal, we review the district court's decision for plain error. See United States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016). To prevail under that standard, Garcia must identify (1) a forfeited error (2) that is clear or obvious, rather than subject to reasonable dispute, and (3) that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he satisfies these three requirements, we may correct the error at our discretion if it "seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (cleaned up).

B.

"When a defendant is convicted of illegal reentry following his removal from the United States, and his prior removal followed a conviction for an 'aggravated felony,' he is subject to a maximum sentence of twenty years." United States v. Trujillo, 4 F.4th 287, 290 (5th Cir. 2021) (quoting 8 U.S.C. § 1326(b)(2)), cert. denied, 142 S.Ct. 837 (2022). But "[i]f his prior removal followed a conviction for a felony that does not qualify as an 'aggravated felony,' . . . he is subject to a maximum sentence of ten years." Id. (quoting 8 U.S.C. § 1326(b)(1)).

Under federal law, "sexual abuse of a minor" is an "aggravated felony." 8 U.S.C. § 1101(a)(43)(A). To determine whether, "for the purpose of § 1326(b)(2)," Garcia's Louisiana conviction qualifies as "sexual abuse of a minor," we "employ a categorical approach by looking to the statute of conviction, rather than to the specific facts underlying the crime." United States v. Montanez-Trejo, 708 Fed.Appx. 161, 165 (5th Cir. 2017) (cleaned up). That approach requires us to ask whether "the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony." Esquivel-Quintana v. Sessions, 137 S.Ct. 1562, 1568 (2017) (quotations omitted). In other words, we must "presume that the state conviction rested upon the least of the acts criminalized by the statute, and then . . . determine whether that conduct would fall within the federal definition of [sexual abuse of a minor]." Id. (cleaned up).

C.

The Louisiana statute under which Garcia was convicted makes it a felony to engage in "[a]ny lewd or lascivious act" with a child "under the age of seventeen, where there is an age difference of greater than two years between the two persons." La. Rev. Stat. § 14:81(A)(1) (emphasis added). It also criminalizes "[t]he transmission, delivery or utterance of any . . . communication depicting lewd or lascivious conduct . . . to any person reasonably believed to be under the age of seventeen and reasonably believed to be at least two years younger than the offender." Id. § 14:81(A)(2) (emphasis added).

But in Esquivel-Quintana v. Sessions, the Supreme Court held that "in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16." 137 S.Ct. at 1568. "Because the [Louisiana] statute at issue in this case does not categorically fall within that definition," it does not qualify as an "aggravated felony under § 1101(a)(43)(A)" that warrants entry of judgment under § 1326(b)(2). Id.

The Government, for its part, does not dispute any of this or otherwise contend that Garcia's state conviction qualifies as an "aggravated felony." Instead, it simply asserts that "[n]o federal court has ever determined whether the Louisiana statute under which Garcia was convicted qualifies as an . . . aggravated felony," and so any error on the part of the district court cannot be "obvious plain error."

We disagree. To determine whether an error is plain, "we look to the state of the law at the time of appeal, and we must decide whether controlling circuit or Supreme Court precedent has reached the issue in question, or whether the legal question would be subject to reasonable dispute." United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015) (quotations omitted). Here, the district court's error is not "subject to reasonable dispute" in light of Esquivel-Quintana.^[1] Id. (quotations omitted). So the district court plainly erred by treating Garcia's Louisiana conviction as an "aggravated felony" that warranted entry of judgment under § 1326(b)(2).

The third prong of the plain error test is met, as we have previously recognized that "[e]ntering conviction based on § 1326(b)(2) rather than § 1326(b)(1) can have collateral consequences for the defendant, such as permanent inadmissibility to the United States." Trujillo, 4 F.4th at 291. And as to the fourth prong, we exercise our discretion to correct the district court's error. See United States v. Rodriguez-Flores, 25 F.4th 385, 290 (5th Cir. 2022). In similar cases, we have remanded to the district court for the limited purpose of reforming the judgment to reflect the proper statute of conviction, even when reviewing for plain error. See, e.g., id. at 390-91; United States v. Medrano-Camarillo, 653 Fed.Appx. 239, 240 (5th Cir. 2016); United States v. Quintanilla-Ventura, 616 Fed.Appx. 189, 190 (5th Cir. 2015). We do so here as well.

III.

That leaves Garcia's challenge to various conditions of supervised release that were included in his written judgment.

A.

"The district court's obligation to orally pronounce its sentence is grounded in the defendant's right to be present at sentencing, which in turn is derived from the Fifth Amendment's Due Process Clause." United States v. Gomez, 960 F.3d 173, 178 (5th Cir. 2020). "If the in-court pronouncement differs from the judgment that later issues, what the judge said at sentencing controls." United States v. Diggles, 957 F.3d 551, 557 (5th Cir. 2020) (en banc), cert. denied, 141 S.Ct. 825 (2020).

This pronouncement requirement applies to certain conditions of supervised release. See id. So our court has established a framework "for determining which conditions of supervised release require oral pronouncement." Gomez, 960 F.3d at 179 (citation omitted). Under that framework, a district court must pronounce at sentencing any condition of supervised release that is not required by 18 U.S.C. § 3583(d). Diggles, 957 F.3d at 559.

A district court satisfies the pronouncement requirement by giving the defendant notice at sentencing as to what conditions it is imposing, along with an opportunity to object. Id. at 560. "Oral in-court adoption of a written list of proposed conditions" is one method of providing "the necessary notice." Id. But "the mere existence of such a document is...