USA v. Jossue Agrueta-Vasquez
UNPUBLISHED OPINION FILED. [15-41132 Affirmed ] Judge: EGJ , Judge: PRO , Judge: CH Mandate pull date is 10/13/2017 for Appellant Jossue Agrueta-Vasquez [15-41132]
Date Filed: 09/22/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
September 22, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA,
JOSSUE AGRUETA-VASQUEZ, also known as Jose Argueta-Vasquez, also
known as Jose V. Argueta, also known as Jose Argueta,
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:15-CR-150-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Jossue Agrueta-Vasquez appeals his guilty plea conviction for illegal
reentry into the United States. He contends that the judgment erroneously
indicates that he was convicted and sentenced under 8 U.S.C. § 1326(b)(2),
which applies when the defendant was previously removed subsequent to a
conviction for an aggravated felony. Although Agrueta-Vasquez has completed
his federal sentence and has been deported, his challenge is not moot because
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Date Filed: 09/22/2017
an erroneous conviction under § 1326(b)(2) could have collateral consequences
for him, including rendering him permanently inadmissible to the United
States. See United States v. Ovalle-Garcia, ___ F.3d ___, No. 16-40829, 2017
WL 3391627, 1 (5th Cir. Aug. 8, 2017).
According to Agrueta-Vasquez, the district court erred in determining
that his 1996 Virginia conviction for petit larceny constituted an aggravated
felony for purposes of § 1326(b)(2) because, unlike the generic definition of
theft, larceny in Virginia can be committed based on the acquisition of property
through fraudulently obtained consent. Because Agrueta-Vasquez presents
this argument for the first time on appeal, plain error review applies. See
United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009).
To satisfy the plain error standard, “the legal error must be clear or
obvious, rather than subject to reasonable dispute.” Puckett v. United States,
556 U.S. 129, 135 (2009).
As Agrueta-Vasquez concedes, he cannot
demonstrate plain error in light of the decision in United States v. RodriguezSalazar, 768 F.3d 437, 438 (5th Cir. 2014).
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