Case: 21-40277 Document: 00516199497 Page: 1 Date Filed: 02/11/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 21-40277 February 11, 2022 consolidated with Lyle W. Cayce 21-40275 Clerk United States of America, Plaintiff—Appellee, versus Josue David Rodriguez-Flores, Defendant—Appellant. Appeals from the United States District Court for the Southern District of Texas USDC No. 2:20-CR-1204-1 USDC No. 4:13-CR-541-1 Before Dennis, Southwick, and Wilson, Circuit Judges. Per Curiam: Josue David Rodriguez-Flores asks this court to remand for correction of the judgment of his most recent criminal conviction for illegal reentry to reflect conviction under 8 U.S.C. § 1326(b)(1) instead of (b)(2); he does not seek resentencing. Rodriguez-Flores asserts that he was erroneously sentenced under § 1326(b)(2) because the district court misclassified his Case: 21-40277 Document: 00516199497 Page: 2 Date Filed: 02/11/2022 No. 21-40277 c/w No. 21-40275 previous Texas state conviction for sexual assault as an “aggravated felony.” Reviewing for plain error, we agree. I. In 2020, Rodriguez-Flores was arrested and charged with illegal reentry in violation of 8 U.S.C. § 1326(a) and (b). He pleaded guilty, without a plea agreement. He had previously been convicted of illegal reentry in 2014, sentenced to 15 months of imprisonment followed by three years of supervised release, and deported. Rodriguez-Flores’s presentence report (PSR) identified a maximum term of 20 years imprisonment pursuant to § 1326(b)(2) and a guidelines range of 63 to 78 months. The PSR also indicated that he had pleaded guilty and been convicted of sexual assault of an adult in Texas state court in 2015. The PSR treated this Texas sexual assault conviction as an “aggravated felony” within the meaning of § 1326(b)(2), which raised the statutory maximum for his offense to 20 years imprisonment from 10 years, but had no effect on his guidelines range. Rodriguez-Flores raised no substantive objections to the PSR. The district court adopted the PSR and sentenced Rodriguez-Flores to 63 months, with no term of supervised release. Rodriguez-Flores appealed. II. The sole issue on appeal is whether this court should remand for correction of the judgment in Rodriguez-Flores’s most recent criminal proceeding to reflect that his offense of conviction was under § 1326(b)(1) instead of (b)(2). 1 He argues that he should have been convicted under 1 At the same sentencing hearing, the district court also revoked Rodriguez- Flores’s supervised release, imposed in his 2014 illegal-reentry case, and sentenced him to a concurrent prison term of eight months on the revocation. Rodriguez-Flores filed an 2 Case: 21-40277 Document: 00516199497 Page: 3 Date Filed: 02/11/2022 No. 21-40277 c/w No. 21-40275 § 1326(b)(1) instead of § 1326(b)(2) because his 2015 Texas conviction for sexual assault does not categorically qualify as an “aggravated felony.” Relevant here, § 1326(b)(1) prescribes a maximum prison sentence of 10 years for non-citizens who have a previous conviction for a non-aggravated felony, while § 1326(b)(2) provides a higher maximum of 20 years for non- citizens previously convicted of an “aggravated felony.” As Rodriguez-Flores concedes, review is …
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