United States v. Antonio Ayala-Nunez
714 F. App'x 345
| 5th Cir. | 2017Background
- Defendant Antonio Ayala‑Nunez, a Mexican national, pleaded guilty in 2016 to illegal reentry under 8 U.S.C. §§ 1326(a) and (b)(2) after prior removals.
- Prior Texas convictions included a 2013 guilty plea to delivery of a controlled substance (deferred adjudication probation revoked after deportation), and other misdemeanor and drug convictions.
- The PSR applied a 12‑level enhancement under U.S.S.G. § 2L1.2(b)(1)(B) based on the delivery conviction and calculated a Guidelines range of 51–63 months (Total Offense Level 17, CHC VI).
- At sentencing the government produced certified conviction records; defense counsel accepted those records but argued for a below‑Guidelines sentence under 18 U.S.C. § 3553(a).
- District court sentenced Ayala‑Nunez to 60 months. On appeal he argued (1) plain error in applying the 12‑level § 2L1.2 enhancement (contention: deferred adjudication/probation revocation after deportation should not count as a "sentence imposed"), and (2) plain error in treating his prior delivery conviction as an "aggravated felony" for purposes of § 1326(b)(2).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Whether the district court plainly erred in applying a 12‑level enhancement under U.S.S.G. § 2L1.2 | Gov: enhancement proper because a qualifying drug trafficking conviction exists and one of § 2L1.2(b)(1) enhancements must apply | Ayala‑Nunez: deferred adjudication probation (no imprisonment served pre‑deportation) means no "sentence imposed" for § 2L1.2 purposes, so enhancement was incorrect | No plain error: interpretation of "sentence imposed" is reasonably debatable; no clear and obvious legal error under plain‑error second prong |
| 2) Whether prior Texas delivery conviction is an "aggravated felony" for § 1326(b)(2) | Gov: (implicitly) treated conviction as supporting § 1326(b)(2) sentencing exposure | Ayala‑Nunez: Texas "delivery" is indivisible and includes mere offers to sell, which are not aggravated felonies | Error was plain under Fifth Circuit precedent; judgment reformed to reflect conviction and sentencing under § 1326(b)(1) (not vacated) |
Key Cases Cited
- Puckett v. United States, 556 U.S. 129 (defining plain‑error standard)
- United States v. Ibarra‑Luna, 628 F.3d 712 (5th Cir. 2010) (Texas delivery statute not an aggravated felony because it covers offers to sell)
- United States v. Hinkle, 832 F.3d 569 (5th Cir. 2016) (statute indivisibility confirms overbroad categorical match analysis)
- United States v. Mondragon‑Santiago, 564 F.3d 357 (5th Cir. 2009) (district court judgment may be reformed where statutory‑maximum error did not affect sentence)
- United States v. Garcia‑Rodriguez, 415 F.3d 452 (5th Cir. 2005) (plain‑error discussion in sentencing context)
- United States v. Alfaro, 408 F.3d 204 (5th Cir. 2005) (withdrawing an evidentiary objection does not waive distinct legal challenges to an enhancement)
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior‑conviction sentencing enhancement doctrine)