699 F. App'x 314
5th Cir.2017Background
- Jose Louis Ramirez Galvan pleaded guilty to illegal reentry after removal and received a 24‑month sentence within the advisory guidelines range.
- The district court treated Ramirez Galvan’s prior Texas conviction for sexual assault of a child (Tex. Penal Code § 22.011(a)(2), (c)(1)) as an aggravated felony for immigration purposes and invoked 8 U.S.C. § 1326(b)(2) in the judgment.
- Ramirez Galvan did not raise the aggravated‑felony classification in the district court; the appellate court therefore reviewed for plain error.
- The government and the court relied on Fifth Circuit precedent treating similar Texas child‑sex offenses as aggravated felonies because they pose a substantial risk that physical force may be used in committing the offense under 18 U.S.C. § 16(b).
- The panel concluded that the reasoning applied to indecency with a child extends to Texas sexual assault of a child involving explicit sexual acts, so treating the conviction as an aggravated felony was not clear or obvious error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ramirez Galvan’s Texas sexual‑assault‑of‑a‑child conviction is an "aggravated felony" under 8 U.S.C. § 1101(a)(43)(F) for purposes of 8 U.S.C. § 1326(b)(2) | Ramirez Galvan: the prior state offense should not be classified as an aggravated felony (urged remand and deletion of § 1326(b)(2) reference) | Government: the Texas offense is an aggravated felony because it, like indecency with a child, involves a substantial risk that physical force may be used | Court: Affirmed—no plain error; the offense qualifies as an aggravated felony under existing Fifth Circuit precedent |
Key Cases Cited
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir.) (plain‑error review for unpreserved sentencing issues)
- United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996) (indecency with a child constitutes aggravated felony under § 16(b))
- Puckett v. United States, 556 U.S. 129 (2009) (standard for plain‑error review)
- United States v. Rodriguez, 711 F.3d 541 (5th Cir. en banc) (concluded Tex. Penal Code § 22.011(a)(2) comported with generic sexual‑abuse/statutory‑rape definitions)
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (clarified generic federal definition of sexual abuse of a minor requires victim younger than 16)