667 F. App'x 440
5th Cir.2016Background
- Jose Ignacio Hernandez-Ayala (Hernandez) convicted of illegal reentry under 8 U.S.C. § 1326(a) and (b); district court sentenced him to 30 months imprisonment and 3 years supervised release, above the Guidelines range.
- Hernandez challenged the substantive reasonableness of his above-Guidelines sentence, arguing among other things that his criminal history was double-counted.
- He also argued the sentence exceeded the statutory maximum under § 1326(a) and that the court lacked authority to sentence under § 1326(b); he conceded these issues were not raised below (plain-error review).
- Hernandez further contended he was plainly erred in being sentenced under § 1326(b)(2) (20-year max) rather than § 1326(b)(1) (10-year max), because his prior conviction was not an aggravated felony; the Government conceded the prior conviction was not an aggravated felony.
- The Fifth Circuit found no abuse of discretion in the upward variance/departure, found Almendarez-Torres controls the § 1326(b) element question (foreclosing Hernandez’s challenge), and held any error in applying § 1326(b)(2) did not affect the sentence but required correction of the written judgment to reflect conviction under § 1326(b)(1) only.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sentence was substantively unreasonable | Hernandez: upward sentence unreasonable; criminal-history double-counted | Government: court may consider criminal history; variance/departure permissible | No abuse of discretion; sentence not substantively unreasonable |
| Whether district court exceeded statutory authority under § 1326(a) / § 1326(b) | Hernandez: sentence exceeds statutory maximum; § 1326(b) not applicable | Government: argument foreclosed by Almendarez-Torres; reviewed for plain error | Almendarez-Torres governs; no plain error shown |
| Whether Alleyne undermines Almendarez-Torres and Hernandez’s § 1326(b) challenge | Hernandez: Alleyne requires elements be found by jury, possibly invalidating Almendarez-Torres | Government: Alleyne did not disturb Almendarez-Torres; Fifth Circuit precedent controls | Alleyne did not disturb Almendarez-Torres; challenge fails |
| Whether sentencing under § 1326(b)(2) (20-yr max) was plain error given prior was not an aggravated felony | Hernandez: improperly sentenced under (b)(2) instead of (b)(1) | Government: concedes prior not aggravated felony; argues no plain error because record not influenced | Court: Government concedes; no plain error shown affecting sentence, but judgment ambiguous and must be corrected to reflect §1326(b)(1) only |
Key Cases Cited
- Gall v. United States, 552 U.S. 38 (sentencing review standard; abuse of discretion for substantive reasonableness)
- United States v. Duarte, 569 F.3d 528 (double-counting of prior convictions does not alone make sentence unreasonable)
- United States v. Smith, 440 F.3d 704 (criminal history may justify non-Guidelines sentence)
- Almendarez-Torres v. United States, 523 U.S. 224 (prior conviction is not an element for § 1326 enhancements)
- Alleyne v. United States, 133 S. Ct. 2151 (statutory maximum enhancement must be found by jury; did not disturb Almendarez-Torres per Fifth Circuit)
- United States v. Wallace, 759 F.3d 486 (Fifth Circuit: Alleyne did not overrule Almendarez-Torres)
- United States v. Mondragon-Santiago, 564 F.3d 357 (plain-error review for sentencing under incorrect statutory maximum; remedy principles)