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Date: 12-06-2022

Case Style:

United States of America v. Gerson Orellana-Villegas

Case Number: 21-40652

Judge: Per Curiam

Court: United States Court of Appeals for the Fifth Circuit on appeal from the Eastern District of Texas

Plaintiff's Attorney: United States Attorney's Office

Defendant's Attorney:

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Description: Beaumont, Texas criminal law lawyer represented Defendant charged with illegal immigration after having previously been found illegally in the United States.

Orellana-Villegas pleaded guilty to one count of reentry of deported noncitizen, in violation of 8 U.S.C. § 1326(a) & (b). He had previously been deported in 2015 after he was convicted for sexually assaulting a child in violation of the Texas Penal Code. Orellana-Villegas’s presentence report (“PSR”) classified this conviction (1) as a “crime of violence,” supporting a 16-level sentence enhancement, see U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015); and (2) as an “aggravated felony” within the meaning of 8 U.S.C. § 1326(b)(2). Accordingly, the PSR identified a Sentencing Guidelines range of 70–87 months and a maximum term of imprisonment of 20 years.

OrellanaVillegas raised no substantive objections to the PSR.

The district court subsequently conducted a sentencing hearing in which it adopted the PSR’s factual findings and application of the Guidelines. However, the district court expressed concern with the severity of OrellanaVillegas’s conduct and determined an upward variance was warranted. After considering the factors in 18 U.S.C. § 3553(a), the court instead imposed an imprisonment term of 120 months.

* * *

We begin with the 16-level enhancement. The parties agree—and so do we—that the district court committed a clear and obvious error in applying the 16-level enhancement. The PSR applied this enhancement based on its conclusion that Orellana-Villegas had previously been deported after committing a “crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). But under Fifth Circuit precedent, Orellana-Villegas’s underlying crime (sexual assault in violation of Texas Penal Code § 22.011(a)(2)) is not a “crime of violence” under the Sentencing Guidelines as they existed at the time of Orellana-Villegas’s conviction. United States v. Hernandez-Avila, 892 F.3d 771, 773 (5th Cir. 2018) (per curiam). Thus, the 16-level enhancement was inapplicable, and the district court clearly erred in applying it. As such, Orellana-Villegas readily satisfies the first two prongs of plain error review.

But Orellana-Villegas’s success ceases here. Under the third prong of plain error review, Orellana-Villegas has the burden to prove that the district court’s error affected his substantial rights—in other words, he must show that there is a reasonable probability that his sentence would have been different but for the district court’s alleged error. United States v. Lara, 23 F.4th 459, 477 (5th Cir.), cert. denied, 142 S. Ct. 2790 (2022). Yet, OrellanaVillegas failed entirely to brief this point. He advances no argument as to how his sentence would have differed if the court applied the correct-level enhancement. We conclude that his scant, inadequate briefing constitutes waiver of the issue. United States v. Stalnaker, 571 F.3d 428, 439–40 (5th Cir.But even assuming arguendo that Orellana-Villegas preserved this issue, his claim would still fail—Orellana-Villegas cannot establish that he would have received a lesser sentence if the PSR had applied the correct level enhancement. To be sure, a defendant’s substantial rights may be affected where “the record is silent as to what the district court might have done had it considered the correct Guidelines range.” United States v. Blanco, 27 F.4th 375, 381 (5th Cir. 2022) (quoting Molina-Martinez v. United States, 578 U.S. 189, 201 (2016))). But that’s not the case here. To the contrary, the district court plainly expressed, on the record, its concern about the seriousness of Orellana-Villegas’s conduct, its desire to deter Orellana-Villegas from committing future crimes, and its intention to protect the public from harm.

The district court did not reference the Guidelines range while imposing the sentence; instead, it indicated that it “thought the sentence it chose was appropriate irrespective of the Guidelines range.” Molina-Martinez, 578 U.S. at 200; see also United States v. Nino-Carreon, 910 F.3d 194, 197–98 (5th Cir. 2018) (holding that the defendant failed to show an effect on his substantial rights where the district court concentrated on his extensive criminal history and determined that an upward variance was warranted based on § 3553 sentencing factors).

Because Orellana-Villegas has failed to demonstrate that his sentence would have differed absent the 16-level enhancement, he cannot establish plain error.

8 U.S.C. 1326 provides:

§ 1326. Reentry of removed aliens

(a) In general

Subject to subsection (b), any alien who—

(1) has been denied admission, excluded, deported, or removed or has departed the United
States while an order of exclusion, deportation, or removal is outstanding, and thereafter

(2) enters, attempts to enter, or is at any
time found in, the United States, unless

prior to his reembarkation at a place outside
the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to
such alien’s reapplying for admission; or

with respect to an alien previously denied admission and removed, unless such alien shall
establish that he was not required to obtain
such advance consent under this chapter or
any prior Act,
shall be fined under title 18, or imprisoned not
more than 2 years, or both.

(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a), in the case of
any alien described in such subsection—

(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony), such alien shall be fined
under title 18, imprisoned not more than 10
years, or both;

(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title,

imprisoned not more than 20 years, or both;

(3) who has been excluded from the United States pursuant to section 1225(c) of this title
because the alien was excludable under section 1182(a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of subchapter V, and who thereafter, without the permission of the Attorney
General, enters the United States, or attempts to do so, shall be fined under title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence.1 or

(4) who was removed from the United States pursuant to section 1231(a)(4)(B) of this title who thereafter, without the permission of the

Attorney General, enters, attempts to enter, or is at any time found in, the United States
(unless the Attorney General has expressly consented to such alien’s reentry) shall be
fined under title 18, imprisoned for not more than 10 years, or both.

For the purposes of this subsection, the term ‘‘removal’’ includes any agreement in which an
alien stipulates to removal during (or not during) a criminal trial under either Federal or
State law.

(c) Reentry of alien deported prior to completion
of term of imprisonment

Any alien deported pursuant to section 1252(h)(2) 2 of this title who enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release. Such alien shall be subject to such other penalties relating to the reentry of deported aliens as may be available under this section or any other provision of law.
(d) Limitation on collateral attack on underlying deportation order

In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates

(1) the alien exhausted any administrative remedies that may have been available to seek
relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien
of the opportunity for judicial review; and (3) the entry of the order was fundamentally

Outcome: Defendant was sentenced to 120 months imprisonment, fine waived, special assessment of $100, supervised release of 3 years by District Court Judge Amos L. Mazzant, III.

Thus, we AFFIRM the sentence but REMAND to the district court to correct the judgment to reflect the conviction and sentencing under 8 U.S.C. § 1326(b)(1) instead of § 1326(b)(2).

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