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DO-OVER REQUIRED
Javier Fuentes-Rodriguez illegally reentered the United States after having been previously convicted of an aggravated felony. Such reentry violates 8 USC § 1326(b)(2). Javier got 30 months in prison. While his appeal was pending, the Supreme Court decided Borden v. United States, which held that any crime that could be committed recklessly did not fit the “crime of violence” definition, which requires purposeful action.
Before Borden, Javier’s prior felony – Texas family violence – had been considered “aggravated” under 18 USC § 16(b). But it is possible to commit Texas family-violence assault recklessly, and after Borden, the government and Javier agreed he was only guilty of illegal reentry after a non-aggravated assault (8 USC § 1326(b)(1)).
What’s the difference? There’s no difference in the Guidelines necessarily, but – as the 5th Circuit put it – “1326(b)(2) is associated with worse collateral consequences than 1326(b)(1).” What that means is that if Javier is convicted for unlawful reentry after committing an “aggravated felony,” he can never come back legally.
Javier and the government agreed that after Borden, his conviction under 1326(b)(2) had to be changed, but the question was how to change it. Javier wanted the case remanded, at which time the judge could presumably give him a much better sentence, departing downward if the judge chose to do so. The government simply wanted the sentence reformed by the 5th Circuit, changing the number of the statute of conviction without changing the sentence.
Javier’s position made some strategic sense for the defense. It’s possible (even if improbable) that the judge’s sentence was influenced because of her perception Javier had slapped around his wife (or whatever the facts were). A resentencing would let Javier’s lawyer argue something like, “See, it wasn’t so bad.” Even if that argument had not worked, the defense is always entitled to argue the defendant’s excellent prison record as a factor to mitigate a new sentence.
Would it have worked? We’ll see. Last week, the 5th Circuit remanded the case. “We acknowledge that in [a similar case], our court reformed the judgment directly rather than remanding for entry of an amended judgment by the district court, and we could do the same here, coming to the same result,” the 5th held. “However, due to the frequent use of district court judgments of conviction by judges, attorneys, and others, we find remanding this case for entry of an amended judgment will reduce the risk of future confusion.”
United States v. Fuentes-Rodriguez, Case No 15-40740, 2022 U.S. App. LEXIS 551 (5th Cir., Feb 3, 2022)
– Thomas L. Root