USA v. Martin Ovalle-Garcia


PUBLISHED OPINION FILED On Remand from the Supreme Court of the United States. [16-40829 Dismissed and Remanded] Judge: JLD, Judge: ECP, Judge: PRO. Mandate pull date is 08/29/2017 for Appellant Martin Ovalle-Garcia [16-40829]

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Case: 16-40829 Document: 00514106534 Page: 1 Date Filed: 08/08/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-40829 Conference Calendar UNITED STATES OF AMERICA, United States Court of Appeals Fifth Circuit FILED August 8, 2017 Lyle W. Cayce Clerk Plaintiff–Appellee, v. MARTIN OVALLE-GARCIA, Defendant–Appellant. Appeal from the United States District Court for the Southern District of Texas ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES Before DENNIS, PRADO, and OWEN, Circuit Judges. EDWARD C. PRADO, Circuit Judge: Martin Ovalle-Garcia pleaded guilty to illegal reentry after conviction of an aggravated felony under 8 U.S.C. § 1326(a) and (b)(2). He received a 12level sentencing enhancement because he was previously deported after a conviction for a felony that was a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). This Court affirmed the conviction and sentence. United States v. Ovalle-Garcia, 672 F. App’x 421 (5th Cir. 2016) (per curiam). The Supreme Court then vacated the judgment and remanded for further consideration in Case: 16-40829 Document: 00514106534 Page: 2 Date Filed: 08/08/2017 No. 16-40829 light of Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017). Ovalle-Garcia v. United States, 137 S. Ct. 2215 (2017). In Esquivel-Quintana, the Court addressed the generic meaning of sexual abuse of a minor, which is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(A). The Court held that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” EsquivelQuintana, 137 S. Ct. at 1568. On remand, the parties agree that the predicate offense of which OvalleGarcia was convicted—Tennessee statutory rape—is broader than the generic crime of statutory rape because the age of consent in Tennessee is 18. Thus, Ovalle-Garcia’s statutory rape conviction does not qualify either as an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) or as a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Ovalle-Garcia requests a limited remand to the district court for the purpose of correcting the judgment to reflect the fact that he was previously deported after a conviction of a non-aggravated felony. See United States v. Quintanilla-Ventura, 616 F. App’x 189 (5th Cir. 2015) (providing this relief); United States v. Mejia, 589 F. App’x 296 (5th Cir. 2015) (same). We explained in United States v. Briceno, 681 F. App’x 334 (5th Cir. 2017), that this error in the judgment is neither harmless nor moot because the erroneous judgment could have collateral consequences. Specifically, a conviction under § 1326(b)(2)—involving a prior conviction of an aggravated felony—is itself an aggravated felony, “rendering [the defendant] permanently inadmissible to the United States.” Id. Thus, we REMAND to the district court for the limited purpose of correcting the judgment to reflect the correct offense of conviction as under § 1326(b)(1). 2 Case: 16-40829 Document: 00514106534 Page: 3 Date Filed: 08/08/2017 No. 16-40829 Because Ovalle-Garcia has served his sentence and been deported, he does not request resentencing. In light of this express waiver of his challenge to the sentence, we DISMISS his appeal of the sentence. 3

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