Case: 20-10494 Document: 00516109944 Page: 1 Date Filed: 11/29/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-10494 November 29, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Oscar Daniel Rios Benitez,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-1-1
ON REMAND FROM
THE SUPREME COURT OF THE UNITED STATES
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Oscar Daniel Rios Benitez challenges his eighteen-month, within
guidelines sentence for illegal reentry following deportation under 8 U.S.C.
§ 1326(b)(2). During his initial appeal, he asserted that the district court
*
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opinion should not be published and is not precedent except under the limited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.
Case: 20-10494 Document: 00516109944 Page: 2 Date Filed: 11/29/2021
No. 20-10494
improperly classified his prior Texas conviction for assault-family violence as
an “aggravated felony.” This classification led to a potential maximum
sentence of twenty years under § 1326(b)(2).
The Government moved for summary affirmance, contending that
Rios Benitez’s argument was foreclosed by United States v. Reyes-Contreras,
910 F.3d 169 (5th Cir. 2018) (en banc), and United States v. Gracia-Cantu,
920 F.3d 252 (5th Cir.), cert. denied, 140 S. Ct. 157 (2019). We agreed,
granted the Government’s motion, and summarily affirmed. United States v.
Rios Benitez, 832 F. App’x 917, 918 (5th Cir. 2021), cert. granted, vacated, No.
20-8257, 2021 WL 4507567 (U.S. 2021). Rios Benitez petitioned the
Supreme Court for a writ of certiorari, which the Court granted. Rios Benitez
v. United States, No. 20-8257, 2021 WL 4507567 (U.S. 2021) (mem.). The
Court vacated our judgment and remanded for further consideration in the
light of Borden v. United States, 141 S. Ct. 1817 (2021).
On remand, we requested supplemental briefing from the parties. In
response, the Government and Rios Benitez have filed a joint letter, agreeing
that under Borden, the district court erred by entering judgment under
§ 1326(b)(2). They assert that because Rios Benitez’s prior conviction for
assault-family violence does not qualify as a crime of violence, he should have
been convicted and sentenced under 8 U.S.C. § 1326(b)(1), which carries
only a ten-year statutory maximum sentence. We agree.
Rios Benitez has already served his term of imprisonment, and
nothing in the record supports that the twenty-year maximum under
§ 1326(b)(2) influenced the district court as to its choice of sentence.
Accordingly, we likewise agree with the parties that the proper remedy in this
case is reformation of the judgment to reflect that Rios Benitez was convicted
and sentenced under 8 U.S.C. § 1326(b)(1).
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No. 20-10494
Our court has the discretion either to reform a judgment or remand
the case for the district court to do so. 28 U.S.C. § 2106 (allowing the court
to “affirm, modify, vacate, set aside or reverse any judgment . . . brought
before it for review,” or “remand the cause and direct the entry of such
appropriate judgment . . .”). A district court judgment is the primary
document consulted in immigration court and in any future criminal
sentencing proceedings; Rios Benitez does not request a hearing in the
district court on any issue. The cost to judicial economy for the district court
to reform the judgment, rather than reforming it ourselves, is minimal, and
the collateral consequences that may result from an unreformed district court
judgment can be easily avoided. Accordingly, we vacate the district court’s
judgment and remand the case for the district court to reform its judgment
to reflect that Rios Benitez was convicted and sentenced under 8 U.S.C.
§ 1326(b)(1) as an “Alien Unlawfully Found in the United States after
Deportation, Having Previously Been Convicted of a Felony.”
The judgment is VACATED, and the case is REMANDED with
instructions.
3
United States v. Rios Benitez
Combined Opinion