Case: 18-40762 Document: 00515188586 Page: 1 Date Filed: 11/06/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 18-40762 FILED November 6, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. GERARDO ROSALES-OROZCO, also known as Geraldo Rosales, also known as Geraldo S Rosales, also known as Gerardo Rosales, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:18-CR-267-1 Before STEWART, CLEMENT, and HO,* Circuit Judges. PER CURIAM:** Defendant-Appellant Gerardo Rosales-Orozco timely appeals his 21- month imprisonment sentence for illegal reentry under 8 U.S.C. § 1326. He contends that the district court erroneously classified his prior state-court conviction as a section 1326(b)(2) aggravated felony. Because Rosales-Orozco’s * Judge Ho concurs in the judgment only. **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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 18-40762 Document: 00515188586 Page: 2 Date Filed: 11/06/2019 No. 18-40762 prison term has expired, he only seeks reformation of his judgment. We AFFIRM the district court’s section 1326(b)(2) application. I. Facts and Sentencing Proceedings Rosales-Orozco, a citizen of Mexico, is not authorized to live in the United States and was removed from the country in March 2009. In March 2018, Customs and Border Patrol apprehended Rosales-Orozco in Kenedy County, Texas. Prior to this, he had not applied for legal reentry or otherwise received legal permission to reenter the United States. He was charged with illegally reentering the United States after removal in violation of 8 U.S.C. § 1326(a). Rosales-Orozco subsequently pleaded guilty with no plea agreement. The district court accepted his guilty plea, finding him guilty on the one-count indictment and scheduled his sentencing for August 15, 2018. Before sentencing, the Government conducted a criminal background check and discovered that, in March 2005, Rosales-Orozco pleaded guilty to and was convicted of attempted sexual assault in Pennsylvania. 1 At sentencing, the district court reviewed and adopted the presentence investigation report’s (PSR) recommendations. The PSR stated that Rosales- Orozco’s Pennsylvania conviction should be treated as an aggravated felony under 8 U.S.C. § 1326(b)(2), which triggers a ten-level enhancement under United States Sentencing Guidelines (“USSG”) § 2L1.2(b)(2)(A). Rosales- Orozco did not object to the PSR’s section 1326(b)(2) characterization. The district court adopted the classification and sentenced Rosales-Orozco to a 21- month imprisonment term with no supervised release to follow. Neither party objected to the imposed sentence. 1 The underlying facts and imprisonment term are irrelevant for the purposes of this appeal. 2 Case: 18-40762 Document: 00515188586 Page: 3 Date Filed: 11/06/2019 No. 18-40762 Rosales-Orozco now timely appeals and contends that the district court committed reversible plain error in sentencing him under section 1326(b)(2). He was released on September 22, 2019. He nonetheless requests reformation of his judgment to avoid collateral consequences should he later attempt to gain legal reentry into the United ...
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