USA v. Artemio Isidro-Esteban

Filing

PUBLISHED OPINION FILED. [16-40340 Vacated and Remanded] Judge: WED, Judge: EHJ, Judge: LHS. Mandate pull date is 07/21/2017 for Appellee Artemio Isidro-Esteban [16-40340]

Case: 16-40340

Document: 00514056111

Page: 1

Date Filed: 06/30/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40340

United States Court of Appeals
Fifth Circuit

FILED
June 30, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellant
v.
ARTEMIO ISIDRO-ESTEBAN,
Defendant - Appellee

Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:
Artemio Isidro-Esteban pleaded guilty without a plea agreement to
being found unlawfully present in the United States following deportation.
The presentence report (PSR) recommended that Isidro-Esteban’s base offense
level of 8 be increased by 8 levels pursuant U.S.S.G. § 2L1.2(b)(1)(C) (2014), for
his two prior Texas convictions for assault, which were categorized as
aggravated felonies. Isidro’s adjusted offense level of 16 was then adjusted by
3 levels for acceptance of responsibility, resulting in a total offense level of 13.
A total criminal history score of 10 established a criminal history category of V
and a sentencing guidelines range of 30-37 months.
Isidro-Esteban objected to the recommendation that his prior convictions
be categorized as aggravated felonies based on the definition of a crime of

Case: 16-40340

Document: 00514056111

Page: 2

Date Filed: 06/30/2017

No. 16-40340
violence in § 16(b).

Counsel reasserted the objection at sentencing.

The

district court sustained that objection, finding that § 16(b) as applied through
the guidelines is unconstitutionally vague. Isidro-Esteban’s resulting total
offense level was 10, and the sentencing guideline range was 21-27 months.
The district court imposed a sentence of 21 months, with no term of supervised
release. The Government filed a timely notice of appeal.
Isidro-Esteban was released from incarceration on January 19, 2017,
after the briefs in this appeal were filed, he is not subject to a term of
supervised release, and he was removed from the United States on February 2,
2017. This case is not moot, however, as several of our sister circuits have held
that “[c]ompletion of a sentence and deportation does not moot the
[G]overnment’s appeal of an improper sentence.” United States v. HernandezGarduno, 460 F.3d 1287, 1291 (10th Cir. 2006); see also United States v.
Plancarte-Alvarez, 366 F.3d 1058, 1063-64 (9th Cir. 2004); United States v.
Orrega, 363 F.3d 1093, 1095-96 (11th Cir. 2004); United States v. Suleiman,
208 F.3d 32, 36-38 (2d Cir. 2000). Therefore, we must turn to the merits.
The merits of this case are clear and the outcome required by the existing
precedent in this circuit. This court in United States v. Gonzalez-Longoria
831 F.3d 670 (5th Cir. 2016) (en banc), determined that § 16(b) is not
unconstitutionally vague in light of Johnson.

Isidro-Esteban agreed that

Gonzalez-Longoria currently forecloses the issue in this circuit, and that he
simply wished to preserve the issue for possible further review. GonzalezLongoria is binding precedent unless overruled by this court en banc or by the
Supreme Court, therefore the district court erred in holding § 16(b) was
unconstitutionally vague and not granting the appropriate sentencing
enhancement.
For these reasons, we VACATE the sentence of the district court and
REMAND for resentencing with instructions to hold resentencing at some
2

Case: 16-40340

Document: 00514056111

Page: 3

Date Filed: 06/30/2017

No. 16-40340
point in the future if the defendant returns to the United States and the
Government asks the court to reopen the case for this purpose.

3