United States v. Garcia

Case: 20-40377     Document: 00515769174         Page: 1     Date Filed: 03/08/2021

              United States Court of Appeals
                   for the Fifth Circuit
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                          March 8, 2021
                                  No. 20-40377                           Lyle W. Cayce
                                Summary Calendar                              Clerk

   United States of America,



   Angel Mondragon Garcia,


                  Appeal from the United States District Court
                      for the Southern District of Texas
                           USDC No. 5:19-CR-2156-1

   Before Barksdale, Graves, and Oldham, Circuit Judges.
   Per Curiam:*
          Angel Mondragon Garcia pleaded guilty to illegal reentry into the
   United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). He was
   sentenced to, inter alia, 37-months’ imprisonment. Garcia contends: the
   district court plainly erred in treating his prior Texas conviction for

            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   opinion should not be published and is not precedent except under the limited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: 20-40377      Document: 00515769174           Page: 2     Date Filed: 03/08/2021

                                     No. 20-40377

   aggravated assault as a crime of violence under 18 U.S.C. § 16 and, thus, as
   an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F) and § 1326(b)(2);
   and the court’s written judgment imposing a $100 fine conflicts with its oral
   pronouncements at Garcia’s sentencing hearing.
          As Garcia acknowledges, he did not preserve the aggravated-assault
   issue in district court. For issues not so preserved, review is only for plain
   error. E.g., United States v. Broussard, 

669 F.3d 537

, 546 (5th Cir. 2012).
   Under that standard, Garcia must show a forfeited plain error (clear or
   obvious error, rather than one subject to reasonable dispute) that affected his
   substantial rights. Puckett v. United States, 

556 U.S. 129

, 135 (2009). If he
   makes that showing, we have discretion to correct the reversible plain error,
   but generally should do so only if it “seriously affect[s] the fairness, integrity
   or public reputation of judicial proceedings”.

Id. Garcia contends his

prior Texas conviction for aggravated assault—in
   violation of Texas Penal Code § 22.02(a)—did not constitute a crime of
   violence because the Texas conviction included reckless conduct, which does
   not involve “the use, attempted use, or threatened use of physical force”
   element required by § 16. See 18 U.S.C. § 16(a). Garcia concedes, however,
   his claim is foreclosed. See United States v. Gracia-Cantu, 

920 F.3d 252

, 253–
   54 (5th Cir. 2019) (holding Texas Penal Code § 22.01(a)(1), which § 22.02(a)
   incorporates, is a crime of violence); United States v. Reyes-Contreras, 

910 F.3d 169

, 183 (5th Cir. 2018) (en banc) (rejecting any “directness-of-force”
   requirement for a crime of violence). He presents the issue in order to
   preserve it for possible further review.
          The written-judgment claim was not required to be raised at
   sentencing. See United States v. Diggles, 

957 F.3d 551

, 559 (5th Cir. 2020) (en
   banc) (“[W]e do not review for plain error when the defendant did not have
   an opportunity to object in the trial court”); United States v. Bigelow, 

462 F.3d 2

Case: 20-40377      Document: 00515769174           Page: 3      Date Filed: 03/08/2021

                                     No. 20-40377

   378, 381 (5th Cir. 2006). Garcia and the Government rightly agree there is a
   conflict between the court’s oral pronouncements at sentencing and its
   written judgment, which imposes a $100 fine, even though at sentencing the
   court stated no fine was imposed. When the written judgment conflicts with
   the oral pronouncement at sentencing, the oral pronouncement controls.
   United States v. Illies, 

805 F.3d 607

, 610 (5th Cir. 2015).
          AFFIRMED in part; REMANDED for the limited purpose of the
   district court’s correcting the written judgment to conform to its oral
   pronouncement at sentencing.


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