Case: 22-10109 Document: 00516704491 Page: 1 Date Filed: 04/07/2023 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 22-10109 April 7, 2023 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Alfredo Martinez-Rubio, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CR-225-1 Before Ho, Oldham, and Douglas, Circuit Judges. Per Curiam:* Alfredo Martinez-Rubio pled guilty to illegally reentering the United States after removal. The district court sentenced him to 10 years’ imprisonment and 3 years’ supervised release. Martinez-Rubio claims (1) that the district court plainly erred by considering his 1995 murder conviction when enhancing the statutory maximum punishment and (2) that the * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 22-10109 Document: 00516704491 Page: 2 Date Filed: 04/07/2023 No. 22-10109 prosecution should have alleged his murder conviction in the indictment. We disagree. I. In 2021, immigration officials found Alfredo Martinez-Rubio in the United States illegally. Because he had previously been removed from the United States in 2017, the Government indicted Martinez-Rubio for illegal reentry after removal in violation of 8 U.S.C. § 1326. He pled guilty. Martinez-Rubio’s presentence report (“PSR”) identified a guidelines range of 84 to 105 months’ imprisonment. The PSR also noted that Martinez- Rubio had a 1995 Texas murder conviction. This prior “aggravated felony” increased the applicable statutory maximum from 2 years to 20. See 8 U.S.C. § 1326(b)(2). At sentencing, the district court imposed an above-guidelines yet below-statutory-maximum sentence of 10 years’ imprisonment and 3 years’ supervised release. Martinez-Rubio timely appealed. Our jurisdiction is proper under 18 U.S.C. § 3742(a). II. Martinez-Rubio alleges two errors. He (A) argues that his 1995 murder conviction is not an “aggravated felony” under 8 U.S.C. § 1326(b)(2). Then he (B) contends that because his murder conviction increased the statutory maximum, it should have been alleged in the indictment. Both claims fail. A. Start with Martinez-Rubio’s challenge to the § 1326(b)(2) statutory- maximum enhancement. Ordinarily, the maximum punishment for a § 1326 violation is 2 years’ imprisonment. Id. § 1326(a). Congress, however, increased the maximum to 10 years when the convict has a prior felony 2 Case: 22-10109 Document: 00516704491 Page: 3 Date Filed: 04/07/2023 No. 22-10109 conviction, id. § 1326(b)(1), and to 20 years if that felony is “aggravated,” id. § 1326(b)(2). The court below applied the 20-year maximum because it considered Martinez-Rubio’s murder conviction an “aggravated felony.” For the first time on appeal, Martinez-Rubio challenges that determination. Under 8 U.S.C. § 1101(a)(43), an “aggravated felony” is defined in relevant part as either an enumerated offense such as “murder” or any other “crime of violence” for which a term of imprisonment of at least one year was imposed. Id. § 1101(a)(43)(A), (F). And an offense is a “crime of violence” if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § …
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