United States v. Olvera-Martinez, No. 18-40338 (5th Cir. 2021)Annotate this Case
On remand from the Supreme Court, the Fifth Circuit affirmed the district court's judgment as reformed to reflect that defendant was convicted and sentenced under 8 U.S.C. 1326(b)(1).
Defendant pleaded guilty of illegally reentering the United States after having been convicted of an aggravated felony, in violation of 8 U.S.C. 1326(b)(2), and was sentenced to 36 months in prison. While his certiorari petition was pending, the Supreme Court decided Borden v. United States, 141 S. Ct. 1817, 1821-22 (2021), which held 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 the Armed Career Criminal Act (ACCA), 18 U.S.C. 924(e). The Court then granted defendant's petition, vacated the Fifth Circuit's judgment, and remanded. On remand, the parties agree that, in light of Borden, defendant should not have been sentenced under section 1326(b)(2) because Texas family violence assault can be committed recklessly. Both parties agree that defendant's conviction falls within 8 U.S.C. 1326(b)(1), which covers illegal reentry after conviction on three or more qualifying misdemeanors or a nonaggravated felony. The Fifth Circuit agreed and concluded that reformation without remand is appropriate in this case.
This opinion or order relates to an opinion or order originally issued on September 11, 2019.