United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 27, 2021
No. 18-40338
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Margarito Olvera-Martinez, also known as Margarito Olvera
Martinez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:17-CR-783
On Remand from the United States Supreme Court
Before Smith, Dennis, and Duncan, Circuit Judges.
Per Curiam:*
Margarito Olvera-Martinez pled guilty of illegally reentering the
United States after having been convicted of an aggravated felony, in
violation of 8 U.S.C. § 1326(b)(2), and was sentenced to 36 months in prison.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
No. 18-40338
On appeal, he argued his underlying felony conviction for Texas family
violence assault did not constitute an aggravated felony under § 1326(b)(2).
See Tex. Penal Code § 22.01(a)(1), (b)(2). We affirmed, concluding that
argument was foreclosed by our precedent. United States v. Olvera-Martinez,
776 F. App’x 875 (5th Cir. 2019) (per curiam) (citing United States v. Gracia-
Cantu, 920 F.3d 252 (5th Cir. 2019)). Olvera-Martinez petitioned the United
States Supreme Court for a writ of certiorari.
While his petition was pending, the Supreme Court decided in Borden
v. United States, 141 S. Ct. 1817, 1821-22 (2021), that a crime capable of
commission with a “less culpable mental state than purpose or knowledge,”
such as “recklessness,” cannot qualify as a “violent felony” under the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The Court then
granted Olvera-Martinez’s petition, vacated our judgment, and remanded for
“further consideration in light of Borden.” Olvera-Martinez v. United States,
No. 19-6908, 2021 WL 2519043 (U.S. June 21, 2021).
Olvera-Martinez’s underlying state conviction qualifies as an
aggravated felony only via 18 U.S.C. § 16(a), which defines “crime of
violence” virtually identically to the ACCA provision at issue in Borden. See
18 U.S.C. § 924(e)(2)(B); 8 U.S.C. § 1101(43)(F); see also United States v.
Trujillo, 4 F.4th 287, 289 (5th Cir. 2021). On remand, the parties agree that,
in light of Borden, Olvera-Martinez should not have been sentenced under
§ 1326(b)(2) because Texas family violence assault can be committed
recklessly. See Tex. Penal Code § 22.01(a)(1) (one commits family
violence assault by “intentionally, knowingly, or recklessly caus[ing] bodily
injury to another, including the person’s spouse” (emphasis added)). We
agree.
Nonetheless, both parties also agree that Olvera-Martinez’s
conviction falls within 8 U.S.C. § 1326(b)(1), which covers illegal reentry
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No. 18-40338
after conviction on three or more qualifying misdemeanors or a non-
aggravated felony. They are correct.
We may either reform Olvera-Martinez’s judgment or remand for the
district court to do so. See 28 U.S.C. § 2106; United States v. Hermoso, 484 F.
App’x 970, 973 (5th Cir. 2012) (per curiam). Reformation without remand is
appropriate here. Olvera-Martinez’s 36-month sentence is well below the
statutory maximum under either § 1326(b)(1) (10 years) or (b)(2) (20 years)
and is warranted by the facts. That said, a (b)(2) conviction can result in
collateral consequences that do not attach to a (b)(1) conviction. See United
States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017). We therefore
reform the judgment to reflect that Olvera-Martinez was convicted and
sentenced under § 1326(b)(1), not (b)(2). Cf. Trujillo, 4 F.4th at 289
(reforming judgment to correct error under § 1326(b)(2) without remanding
where “the error did not ultimately affect [the] sentence”).
***
The judgment is AFFIRMED as REFORMED to reflect that
Olvera-Martinez was convicted and sentenced under 8 U.S.C. § 1326(b)(1).
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