REVISED APRIL 2, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 26, 2008
No. 07-40016 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ARTURO ROJAS-LUNA
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:06-CR-903
Before KING, STEWART, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Defendant-Appellant Arturo Rojas-Luna (“Rojas-Luna”) appeals the
sentence he received for violating 8 U.S.C. § 1326(a) by illegally entering the
United States after previously being removed. Because we conclude that the
district court’s use of Rojas-Luna’s 2006 removal for purposes enhancing his
sentence pursuant to 8 U.S.C. § 1326(b)(2) was plainly erroneous, we VACATE
Rojas-Luna’s sentence and REMAND for resentencing in conformance with this
opinion.
No. 07-40016
I. FACTUAL AND PROCEDURAL BACKGROUND
Rojas-Luna, a citizen of Mexico who had previously been deported, was
apprehended by United States Border Patrol agents on May 30, 2006, near
Laredo, Texas. Because he lacked permission to be in the United States, Rojas-
Luna was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). The
indictment did not specifically describe any of Rojas-Luna’s prior removals or
deportations, but generally alleged that Rojas-Luna had been previously
removed or deported and had not received permission to reenter the country.
At his rearraignment on August 9, 2006, Rojas-Luna pleaded guilty to
illegally reentering the United States. The factual basis for the charge, as
described by the Government during the rearraignment, was that Rojas-Luna
had been deported in 1988 and had reentered the United States on or about May
30, 2006, by wading the Rio Grande River. The district court accepted Rojas-
Luna’s plea and set a date for sentencing.
The United States Probation Office then prepared Rojas-Luna’s
Presentence Investigation Report (“PSR”), which assigned an initial offense level
of eight to Rojas-Luna’s illegal reentry. See U.S.S.G. § 2L1.2(a). The PSR next
recommended that Rojas-Luna’s offense level be increased by sixteen levels
pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A), which
authorizes a sixteen-level increase for aliens who reenter the country after being
deported following a conviction for a crime of violence felony. The PSR noted
that Rojas-Luna was convicted in 2003 of aggravated assault and removed in
2006 following his prison term. Factoring in a three-level reduction for
acceptance of responsibility, Rojas-Luna’s total offense level was twenty-one.
Combined with his criminal history score, the recommended sentencing range
was seventy to eighty-seven months. Although the statutory maximum for
illegal reentry is typically two years in prison, see 8 U.S.C. § 1326(a), Rojas-
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No. 07-40016
Luna’s 2003 conviction and subsequent removal raised the cap to twenty years
pursuant to 8 U.S.C. § 1326(b)(2).
At his sentencing on December 16, 2006, Rojas-Luna objected on Apprendi1
grounds to the constitutionality of using his 2003 conviction to increase the
statutory maximum sentence he could receive; however, he made no objection to
the PSR’s use of his 2006 removal to increase the statutory maximum. The
district court overruled the Apprendi objection and sentenced Rojas-Luna to
seventy-three months in prison.
Rojas-Luna now appeals, arguing that his 2006 removal must have been
proven to a jury beyond a reasonable doubt in order to increase the statutory
maximum sentence he could receive under 8 U.S.C. § 1326(b)(2). Rojas-Luna
also renews his Apprendi objection for purposes of preserving his claim on that
ground. We have jurisdiction pursuant to 28 U.S.C. § 1291 and now turn to the
merits of our decision.
II. STANDARD OF REVIEW
Because Rojas-Luna did not object to the use of his 2006 removal before
the district court, we review his claim on that ground for plain error. See United
States v. Grant, 493 F.3d 464, 468 (5th Cir. 2007). To prevail under the plain
error standard, Rojas-Luna must demonstrate (1) an error, (2) that is clear or
obvious, and (3) that affects his substantial rights. See United States v.
McCrimmon, 443 F.3d 454, 458 (5th Cir.), cert. denied, 547 U.S. 1120 (2006). If
these three conditions are met, we may exercise our discretion to correct the
error, but only if (4) the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id. (internal quotation marks omitted).
1
Apprendi v. New Jersey, 530 U.S. 466 (2000).
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No. 07-40016
III. DISCUSSION
On appeal, Rojas-Luna argues that the district court should not have been
allowed to find the fact of his 2006 removal in order to increase the statutory
maximum sentence he could receive; instead, Rojas-Luna asserts that such a
finding must be made by a jury following proof beyond a reasonable doubt. The
Government counters that Rojas-Luna’s 2006 removal is simply a sentencing
factor that does not have to be proven to a jury. Before addressing the
arguments of the parties, we first make clear why the 2006 removal is essential
to the sentencing enhancement in the first place.
As noted above, the statute under which Rojas-Luna was convicted, 8
U.S.C. § 1326(a), provides for a maximum penalty of two years’ imprisonment
for illegal reentry. However, pursuant to § 1326(b)(2), the maximum penalty is
increased to twenty years in prison for an alien whose prior removal “was
subsequent to a conviction for commission of an aggravated felony . . . .” Id.
(emphasis added). At his rearraignment, Rojas-Luna pleaded guilty to
reentering the country after having been removed in 1988. Because he was not
convicted of aggravated assault until 2003, his 1988 removal, although sufficient
to convict him of violating § 1326(a), could not form the basis of the enhancement
in § 1326(b)(2), because it was not “subsequent to” his conviction. See United
States v. Sanchez-Mota, 319 F.3d 1, 3-4 (1st Cir. 2002) (per curiam) (holding that
§ 1326(b)(2) did not apply to an alien who was not removed subsequent to his
conviction). Consequently, under the plain terms of the statute, the Government
must rely on Rojas-Luna’s 2006 removal in order to increase the maximum
penalty range to twenty years. The question remains, then, whether the 2006
removal is a fact that must be proven beyond a reasonable doubt to a jury or if
it may be found by the district judge at sentencing.
In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme
Court held that a defendant’s prior conviction under § 1326(b)(2) was only a
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No. 07-40016
sentencing factor that did not need to be described in an indictment. Id. at 226-
27. The Government urges us to adopt the reasoning of Almendarez-Torres here
and hold that a prior removal under § 1326(b)(2) is likewise only a sentencing
factor and thus does not need to be proven to a jury. Rojas-Luna contends that
this court must limit the holding of Almendarez-Torres to prior convictions alone.
Our review of Supreme Court precedent following Almendarez-Torres
demonstrates that, although Almendarez-Torres remains good law, the Supreme
Court has shown a reluctance to expand Almendarez-Torres’s holding to any fact
other than a prior conviction. For example, in Jones v. United States, the Court
held that provisions in a carjacking statute that provided for higher penalties in
cases involving serious bodily injury or death were elements of the offense itself,
not sentencing factors. 526 U.S. 227, 229 (1999). Similarly, in Apprendi, the
Court determined that a law providing for higher penalties if a crime was
racially motivated required a jury to find racial motivation beyond a reasonable
doubt. 530 U.S. at 468-69, 497.
In both Jones and Apprendi, the Court noted the unique nature of its
holding in Almendarez-Torres. The Jones Court discussed Almendarez-Torres’s
focus on recidivism and reasoned that reliance upon prior convictions
(recidivism) was appropriate because a prior conviction must be obtained
through procedures that satisfy the constitutional guarantees of fair notice,
reasonable doubt, and a jury trial. 526 U.S. at 248-49. In Apprendi, the Court
distinguished Almendarez-Torres as “at best an exceptional departure” from
prior law concerning what must be proven to a jury. Apprendi, 530 U.S. at 487.
Thus, neither Jones nor Apprendi counsels us to expand Almendarez-Torres
beyond its current holding.
Perhaps the most significant statement by the Supreme Court on this
issue comes from Apprendi, where the Court stated that “[o]ther than the fact
of a prior conviction, any fact that increases the penalty for a crime beyond the
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No. 07-40016
prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.” 530 U.S. at 490. It is thus clear that the Supreme Court
will not countenance any expansion of Almendarez-Torres. This language also
puts to rest the Government’s argument that the reasoning of Jones and
Apprendi applies only to facts that are part of the commission of the crime itself,
such as injury to the victim or the defendant’s racial motivation for the crime.
While a prior conviction does not typically relate to the commission of a crime,
it does not follow that any fact unrelated to the crime itself is exempt from the
constitutional protection of a jury trial. The Supreme Court’s use of the phrase
“any fact that increases a penalty” admits for no distinction between those facts
that are related to the crime and those that are not.
The Government’s argument that we treat a prior removal as addressing
the same recidivism concerns as a prior conviction is also unavailing. As noted
above, one of the reasons the Supreme Court has countenanced the use of a prior
conviction to enhance a sentence is that a prior conviction is the product of
procedures that encompass the constitutional guarantees of fair notice,
reasonable doubt, and a jury. Jones, 526 U.S. at 249. Removals, on the other
hand, are not subject to the same constitutional requirements. See Carlson v.
Landon, 342 U.S. 524, 537 (1952) (“Deportation is not a criminal proceeding . . .
No jury sits. No judicial review is guaranteed by the Constitution.”); United
States v. Benitez-Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999) (“A deportation
hearing is a civil, not a criminal, action . . . As such, the full range of
constitutional protections available to a defendant in a criminal case are not
afforded an alien in a deportation proceeding.”). Consequently, while a court
may use a prior conviction with the knowledge that the defendant was given
multiple constitutional protections, the same cannot be said for prior removals.
In sum, the Supreme Court has clearly indicated that Almendarez-Torres
is limited to prior convictions and that any other fact used to increase a sentence
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No. 07-40016
beyond a statutory maximum must be proven to a jury. Therefore, the district
court in this case erred in finding the fact of Rojas-Luna’s 2006 removal for
purposes of increasing his sentence under § 1326(b)(2) beyond the statutory
maximum.2 Further, in light of the above precedent, this error was clear and
obvious, satisfying the first two elements of the plain error standard. We are not
alone in this holding, as the Ninth Circuit has recently considered this issue and
reached the same conclusion on materially indistinguishable facts. United
States v. Covian-Sandoval, 462 F.3d 1090, 1096-99 (9th Cir. 2006), cert. denied,
127 S. Ct. 1866 (2007) (holding that it was plainly erroneous for the district court
to find the fact of a subsequent removal for purposes of the § 1326(b)(2)
enhancement when the defendant did not admit to the subsequent removal at
the plea colloquy).
Our inquiry does not end there, however. Having determined that the
district court plainly erred in using Rojas-Luna’s 2006 removal to enhance his
sentence under § 1326(b)(2), we must now decide whether Rojas-Luna has shown
that the error affected his substantial rights. McCrimmon, 443 F.3d at 458. An
error affects a defendant’s substantial rights when the error “affected the
outcome of the district court proceedings.” United States v. Palmer, 456 F.3d
484, 491 (5th Cir. 2006) (internal quotation marks omitted). It is clear here that
the error affected the outcome of the proceedings, as use of Rojas-Luna’s 2006
removal permitted the district court to give him a sentence above the otherwise-
applicable statutory maximum of two years. See id. (holding that error resulting
in additional sixty months’ sentence affected defendant’s substantial rights).
2
To be clear, this ruling only applies when the Government seeks to use a removal
under § 1326(b)(2) that is different than the removal used to obtain the conviction under
§ 1326(a). Had Rojas-Luna admitted to his 2006 removal or had it been proven to a jury
beyond a reasonable doubt, the district court would have been justified in relying on the 2006
removal to enhance Rojas-Luna’s sentence.
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No. 07-40016
The Government urges us to follow the reasoning used in Covian-
Sandoval, in which the Ninth Circuit determined that the erroneous use of a
prior removal to increase a sentence under § 1326(b)(2) did not affect the
defendant’s substantial rights. 462 F.3d at 1098-99. The Ninth Circuit’s
decision, however, was based on its precedent in United States v. Minore that
adopted a “more stringent” approach to the substantial rights analysis. 292 F.3d
1109, 1122 (9th Cir. 2002) (cited by Covian-Sandoval, 462 F.3d at 1098). Under
the Ninth Circuit’s approach in Minore, a defendant is required to raise
reasonable doubt that a rational jury would have found him guilty of the
sentencing element absent the constitutional error before a court may conclude
that the defendant’s substantial rights were affected. Id. at 1121-23 (rejecting
the “less stringent” approach that simply asks if the defendant received a greater
sentence than would have been permissible in light of the jury’s findings). Thus,
in Covian-Sandoval, because the defendant could not raise reasonable doubt as
to his prior removal, the court found no violation of substantial rights. Covian-
Sandoval, 462 F.3d at 1098-99.
Our circuit has never adopted the reasonable doubt test as articulated in
Minore, but instead has consistently held that a defendant may show that his
substantial rights were affected simply by demonstrating that the outcome of the
proceedings would have been different absent the error. Palmer, 456 F.3d at
491; McCrimmon, 443 F.3d at 463. Given that Rojas-Luna received a sentence
of seventy-three months in prison when, absent constitutional error, his sentence
would have been a maximum of two years, we have little difficulty in concluding
that Rojas-Luna’s substantial rights were affect.
As Rojas-Luna has satisfied the first three prongs of the plain error
analysis, it remains for us to determine whether the error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings and, thus,
warrants remediation. United States v. Puckett, 505 F.3d 377, 384 (5th Cir.
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No. 07-40016
2007). In United States v. Cotton, 535 U.S. 625, 627-29 (2002), the Supreme
Court considered whether the plain error inquiry was satisfied when a district
court increased a defendant’s sentence based on conduct involving a certain
quantity of drugs when the amount of drugs was not included in the indictment
or found by the jury. While holding that there was plain error, the Court
determined that there was no basis for concluding that the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings
because the evidence of the drug amount that was presented at trial was
“overwhelming” and “essentially uncontroverted.” Id. at 633 (internal quotation
marks omitted).
In the present case, there was no trial at which evidence of Rojas-Luna’s
2006 removal might have been presented; there was only a plea colloquy at
which the Government failed to set forth any evidence of the 2006 removal. The
unsupported statement in Rojas-Luna’s PSR that he was removed in 2006 is not
“overwhelming” evidence of the fact of his removal, particularly in light of the
fact that there is no evidence in the record that Rojas-Luna ever agreed to the
accuracy of the PSR. As a result, the plain error of the district court seriously
affected the fairness and integrity of the proceedings, and, in the exercise of our
discretion, we believe relief is warranted. Therefore, we VACATE Rojas-Luna’s
sentence and REMAND this case for re-sentencing in conformance with this
opinion.3
3
Because we have ruled that Rojas-Luna is not subject to the sentencing enhancement
under § 1326(b)(2), we need not address Rojas-Luna’s argument that use of his 2003 conviction
under § 1326(b)(2) is unconstitutional, although we note that such an argument is foreclosed
under our precedent. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (per
curiam).
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No. 07-40016
IV. CONCLUSION
Because use of Rojas-Luna’s 2006 removal to increase his sentence beyond
the statutory maximum was plainly erroneous, we VACATE his sentence and
REMAND this case for re-sentencing consistent with this opinion.
VACATED and REMANDED.
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