United States v. Fuentes-Rodriguez, No. 15-40740 (5th Cir. 2022)

Fuentes-Rodriguez pleaded guilty to illegally reentering the U.S. after having been previously convicted of an aggravated felony (8 U.S.C. 1326(b)(2)) and was sentenced to 30 months’ imprisonment. The Fifth Circuit affirmed that his underlying felony conviction for family-violence assault under Texas Penal. Code 22.01(a)(1) constituted an aggravated felony. While his certiorari petition was pending, the U.S. Supreme Court decided in "Borden" (2021) that a crime capable of commission with “a less culpable mental state than purpose or knowledge,” such as “recklessness,” cannot qualify as a “violent felony” under 18 U.S.C. 924(e)(2)(B)(i) of the Armed Career Criminal Act (ACCA). Fuentes-Rodriguez’s underlying Texas conviction qualifies as an aggravated felony only through 18 U.S.C. 16(a),2 which defines a “crime of violence” almost identically to the ACCA’s “violent felony” provision.

On remand, the Fifth Circuit vacated. Fuentes-Rodriguez should not have been sentenced under 8 U.S.C. 1326(b)(2) because Texas’s family-violence assault can be committed recklessly but his conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction for a non-aggravated felony. The district court’s judgment should be reformed because section 1326(b)(2) is associated with worse collateral consequences than section 1326(b)(1). Remanding for entry of an amended judgment by the district court will reduce the risk of future confusion. A reformed judgment should reflect that Fuentes-Rodriguez was convicted and sentenced under 8 U.S.C. 1326(b)(1) as an “Alien Unlawfully Found in the United States after Deportation, Having Previously Been Convicted of a Felony.”