United States v. Jose Rubio-Sorto
707 F. App'x 239
| 5th Cir. | 2017Background
- Defendant Jose Mario Rubio-Sorto pleaded guilty (no plea agreement) to illegal reentry after deportation in violation of 8 U.S.C. § 1326.
- Presentence Report applied a 16‑level § 2L1.2(b)(1)(A)(ii) "crime of violence" enhancement based on a 2012 Illinois second‑degree murder conviction, yielding a Guidelines range of 46–57 months.
- District court adopted the PSR and sentenced Rubio‑Sorto to 57 months imprisonment and 3 years supervised release.
- On appeal (reviewed for plain error because issues were not raised below), Rubio‑Sorto argued: (1) Illinois second‑degree murder is not a "crime of violence" under the Guidelines; and (2) he was improperly charged under § 1326(b)(2) because his prior conviction did not qualify as an aggravated felony, attacking § 16(b) as unconstitutionally vague.
- The panel declined to find plain error: it declined to resolve whether Illinois second‑degree murder is broader than generic murder, and rejected the facial vagueness attack on § 16(b) as foreclosed by controlling precedent, affirming the district court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Illinois second‑degree murder qualifies as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Rubio‑Sorto: Illinois second‑degree murder is broader than generic murder and lacks a use‑of‑force element | Government: The prior murder conviction fits within the Guideline definition (enumerated murder or force element) | No plain error found; court declined to decide the underlying categorical question given lack of controlling precedent |
| Whether § 1326(b)(2) entry was erroneous because the prior conviction is not an "aggravated felony" under 8 U.S.C. § 1101(a)(43); and whether 18 U.S.C. § 16(b) is unconstitutionally vague | Rubio‑Sorto: Illinois second‑degree murder does not qualify as "murder" under § 1101(a)(43) nor meet § 16(a); argues § 16(b) is unconstitutionally vague (Johnson) | Government: Murder is an aggravated felony; § 16(b) is valid and applicable | Affirmed. Facial vagueness attack foreclosed by precedent; no plain error shown on as‑applied vagueness claim, so judgment under § 1326(b)(2) stands |
Key Cases Cited
- United States v. Hernandez‑Morales, [citation="681 F. App'x 362"] (5th Cir. 2017) (addressing same challenge to Illinois second‑degree murder under § 2L1.2 and declining to find plain error)
- United States v. Evans, 587 F.3d 667 (5th Cir. 2009) (principle that appellate courts ordinarily do not find plain error on matters not previously addressed)
- United States v. Gonzalez‑Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc) (holding 18 U.S.C. § 16(b) is not unconstitutionally vague on its face)
- Johnson v. United States, 135 S. Ct. 2251 (2015) (source of vagueness challenge to residual clauses)
- Citizens United v. FEC, 558 U.S. 310 (2010) (discussing the facial/as‑applied challenge distinction)