Case: 20-40097 Document: 00516106667 Page: 1 Date Filed: 11/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 24, 2021
No. 20-40097
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Alfonso Lopez-Rodriguez,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:19-CR-897-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
This court previously granted the government’s unopposed motion
for summary affirmance of Alfonso Lopez-Rodriguez’s conviction under 8
U.S.C. § 1326. Lopez-Rodriguez then petitioned for certiorari to the
*
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opinion should not be published and is not precedent except under the limited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.
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No. 20-40097
Supreme Court. The Supreme Court has now vacated the judgment and
remanded to us with instructions to consider Lopez-Rodriguez’s appeal in
the light of the Court’s decision in Borden v. United States, 141 S. Ct. 1817
(2021). We have considered the effect Borden has on Lopez-Rodriguez’s
conviction and, as we shall discuss, hold that it does not disturb this court’s
earlier judgment. Consequently, we REINSTATE the judgment as
previously entered.
I.
On November 13, 2019, Lopez-Rodriguez pleaded guilty to illegal
reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(2).1 On
February 5, 2020, the district court, upon Lopez-Rodriguez’s plea of guilty,
entered a judgment of conviction under section 1326(a) and (b)(2) and
sentenced Lopez-Rodriguez to 57 months. Lopez-Rodriguez’s plea of guilty
and the district court’s judgment of conviction under section 1326(b)(2) were
based on a prior Texas aggravated robbery conviction. 2
1
8 U.S.C. § 1326(a) makes it a crime for “any alien who has been . . . removed or
has departed the United States while an order of exclusion, deportation, or removal is
outstanding, and thereafter enters . . . the United States . . . .” and imposes a statutory
maximum of 2-years imprisonment for that crime. Section 1326(b)(2) further provides that
when the crime of section 1326(a) is preceded by an aggravated felony, the maximum
imprisonment is 20-years.
2
A person commits Texas aggravated robbery “if he commits [simple robbery
under Texas Penal Code Ann. § 29.02] and he: (1) causes serious bodily injury to another;
[or] (2) uses or exhibits a deadly weapon . . . .” Tex. Penal Code Ann. § 29.03(a)(1)–
(2) (emphasis added). A person commits simple robbery, “if, in the course of committing
theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally,
knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly
threatens or places another in fear of imminent bodily injury or death.” Tex. Penal
Code Ann. § 29.02(a) (emphasis added). Thus, in Texas, aggravated robbery
incorporates the crime of simple robbery in its definition.
2
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Lopez-Rodriguez appealed to this court and raised one issue:
“Whether the district court plainly erred by convicting, sentencing, and
entering judgment against Mr. Lopez-Rodriguez under 8 U.S.C. § 1326(b)(2)
because his conviction for Texas aggravated robbery was the only possible
[underlying] predicate offense justifying a § 1326(b)(2) conviction and that
[state] offense can be committed recklessly.” That is to say, Texas aggravated
robbery incorporates Texas simple robbery, which criminalizes reckless
conduct. In the earlier proceeding before us, however, Lopez-Rodriguez
acknowledged that Fifth Circuit precedent—United States v. Burris, 920 F.3d
942 (5th Cir. 2019), vacated and remanded, 2021 U.S. LEXIS 3211 (June 21,
2021)—foreclosed his argument at the time, but he nevertheless sought to
preserve the issue given the Supreme Court’s pending decision in Borden.
The government filed an unopposed motion for summary affirmance of his
conviction, which this court granted on August 18, 2020. Lopez-Rodriguez
subsequently petitioned the Supreme Court for certiorari. On June 21, 2021,
after it had decided Borden, the Supreme Court granted certiorari, vacated
our judgment, and remanded the case to us “for further consideration in [the]
light of Borden v. United States.”
II.
A.
So, the question we proceed to answer is whether Borden requires us
to vacate Lopez-Rodriguez’s conviction of illegal reentry and sentencing
under section 1326(b)(2). In Borden, the defendant, under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), received an enhanced sentence
because of a prior Tennessee state conviction of reckless aggravated assault
that was treated as a crime of violence. 141 S. Ct. at 1822. Under Tennessee
law, Borden’s reckless aggravated assault conviction required that he
“recklessly commit an assault” that either resulted in serious bodily injury
or death or involved a deadly weapon. Tenn. Code Ann. § 39-13-
3
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102(a)(1)(B). The Supreme Court reversed. It held that because a “crime of
violence” required the “use of physical force against the person of another”
a crime supporting an ACCA enhancement required a higher degree of mens
rea than recklessness. Borden, 141 S. Ct. at 1825. Therefore, because, under
his indictment, Borden’s state court conviction could have been for reckless
aggravated assault, the Supreme Court reversed his “crime of violence”
sentencing enhancement. Id. at 1834.
Similarly, and relevant here, a sentence under section 1326(b)(2)
requires a showing of a previous conviction for an “aggravated felony.” As
pertinent to this appeal, 8 U.S.C. § 1101(a)(43)(F) defines an aggravated
felony as “a crime of violence (as defined in section 16 of title 18 . . . ) for
which the term of imprisonment [is] at least one year.” 18 U.S.C. § 16(a)
defines a “crime of violence” as “an offense that has as an element the use,
attempted use, or threatened use of physical force against the person or
property of another[.]”3 In short, the question before us is not whether
Lopez-Rodriguez committed a robbery under Texas law—he did—but
whether that Texas robbery constituted an aggravated felony in the light of
Borden.
B.
Upon remand, we requested supplemental letter briefs addressing
Borden’s effect on Lopez-Rodriguez’s appeal. In his letter brief, Lopez-
Rodriguez argued that Borden barred his conviction under section 1326(b)(2)
because Texas’s aggravated robbery statute incorporates, as an element,
simple robbery, which allows a conviction based on a mens rea of only
3
Borden specifically ruled on the “use of physical force” phrase as it applied to a
“violent felony” under the ACCA. The ACCA’s “violent felony” and section 16’s “crime
of violence” definitions are nearly identical, however, and the government agrees that
Borden applies to section 16(a).
4
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recklessness. And further, Lopez-Rodriguez argued, the record on appeal
here does not establish that Lopez-Rodriguez was actually charged with, or
pleaded guilty, to a crime with a higher standard of mens rea than
recklessness. In response, the government argued that Borden had no effect
on Lopez-Rodriguez’s case because the state indictment and PSR clearly
showed that Lopez-Rodriguez was charged with and pleaded guilty to
committing the robbery with intent or knowledge that his actions would cause
the victim fear of imminent harm; thus, the robbery was not merely recklessly
committed.
Along with its letter brief, the government filed a motion, opposed by
Lopez-Rodriguez, to supplement the record with the state indictment. 4 We
granted that motion.
4
The indictment charges,
THE GRAND JURORS, for the County of Cameron,
State of Texas, duly organized, upon their oaths present
in the said Court, and for the term aforesaid, present that
ALFONZO LOPEZ RODRIGUEZ, hereinafter called the
Defendant, on or about the 21ST DAY OF JULY, 2011,
and anterior to the presentment of this indictment, in the
County of Cameron and State of Texas, did then and
there, while in the course of committing theft of property
and with intent to obtain or maintain control of said
property, intentionally or knowingly threaten or place
Leidy Barragan in fear of imminent bodily injury or death,
and the defendant did then and there use or exhibit a
deadly weapon, to-wit: a knife.
And it is further presented in and to said Court that, prior
to the commission of the aforesaid offense, on the 22nd
day of September, 2009, in cause number CR-2988-09-B
in the 93rd Judicial District of Hidalgo County, Texas, the
defendant was convicted of the felony offense of Assault
Against a Public Servant.
5
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C.
First, it is important to our consideration whether the Texas
aggravated robbery statute is divisible into separate robbery crimes—and our
precedent in United States v. Lerma, 877 F.3d 628, 634 (5th Cir. 2017), has
said clearly that it is. Because Lopez-Rodriguez’s statute of conviction for
aggravated robbery is divisible we use the modified categorical approach to
examine the particular crime of robbery that he committed.
To assess whether a prior conviction constitutes a “crime of
violence” we would usually apply the categorical approach, which focuses on
the elements of the specific crime and not the underlying facts of conviction.
United States v. Martinez-Rodriguez, 857 F.3d 282, 285 (5th Cir. 2017). The
categorical approach is straightforward when a statute involves a single list of
elements for a singular crime. “Some statutes, however, have a more
complicated (sometimes called ‘divisible’) structure . . . .” Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016). Divisible statutes “list elements in the
alternative, and thereby define multiple crimes.” Id. If a statute is divisible
into different crimes then a modified categorical approach is appropriate to
determine which of the crimes referred to in the statute was committed. This
approach allows us to look at “a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine
what crime, with what elements, a defendant was convicted of.” Id. When a
defendant has pleaded guilty, the proper documents to consider when using
the modified categorical approach are the “charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the
trial judgment to which the defendant assented.” United States v. Martinez-
Vega, 471 F.3d 559, 561 (5th Cir. 2006).
6
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D.
As we have noted, our precedent holds that the Texas aggravated
robbery statute, which incorporates the simple robbery statute with its
reference to reckless conduct, is a divisible statute. Lerma, 877 F.3d at 634.
Thus, under the modified categorical approach, we now can turn to other
documents, like the indictment (which has been added to the appellate record
per our grant of the government’s motion to expand the record), to
determine if these documents indicate Lopez-Rodriguez’s crime of
conviction was committed with a higher degree of mens rea than recklessness.
The indictment clearly shows Lopez-Rodriguez was charged with and
pleaded guilty to aggravated robbery based on intentionally and knowingly
threatening another person in the course of a robbery. The indictment
charges that Lopez-Rodriguez “while in the course of committing theft of
property . . . intentionally or knowingly threaten[ed] or place[d the victim] in
fear of imminent bodily injury or death . . . .” (emphasis added). The
indictment further charges that Lopez-Rodriguez, in the course of the
robbery-by-threat, “did then and there use or exhibit a deadly weapon, to wit:
a knife.” The judgment of conviction shows Lopez-Rodriguez pleaded guilty
to the aggravated robbery offense as set out in the indictment. Consequently,
the crime charged against Lopez-Rodriguez, and to which he pleaded guilty,
involved a higher mens rea—intent or knowledge—than recklessness, and
thus satisfies the elements of an aggravated felony (i.e., a crime of violence)
as provided in his section 1326(b)(2) conviction.
III.
To sum up: in this opinion, we have held that Borden does not upset
Lopez-Rodriguez’s conviction or sentence under 8 U.S.C. § 1326. We have
used the modified categorical approach to determine that Lopez-Rodriguez’s
aggravated robbery conviction is based on knowing or intentional conduct, a
7
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higher standard of mens rea than recklessness. Consequently, we have
concluded that Lopez-Rodriguez’s conviction for aggravated robbery under
Texas law is a “crime of violence,” which confirms his section 1326(b)(2)
conviction and enhanced sentence, irrespective of Borden’s holding. Our
previous judgment is, therefore, REINSTATED.
8
United States v. Lopez-Rodriguez
Combined Opinion