United States v. Juan Nunez
680 F. App'x 278
| 5th Cir. | 2017Background
- Defendant Juan Arriaga Nunez pleaded guilty to illegal reentry under 8 U.S.C. § 1326 and admitted the Presentence Report (PSR) without objection.
- The PSR and the district court identified a prior conviction for attempted sexual abuse in the first degree as the aggravated-felony predicate triggering the § 1326(b)(2) 20-year penalty.
- The Government later argued an alternative prior conviction—attempted delivery of a controlled substance to a minor—qualified as an aggravated felony supporting § 1326(b)(2).
- The district court adopted the PSR and sentenced Nunez to 42 months’ imprisonment (within the lesser § 1326(b)(1) statutory maximum).
- On appeal the majority affirmed the judgment on the alternative basis (using the drug offense as the qualifying aggravated felony); a dissent would remand to reform the judgment to § 1326(b)(1) because the parties agree the sexual-abuse conviction is not an aggravated felony and the PSR identified that conviction as the predicate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judgment may be affirmed under § 1326(b)(2) based on a different qualifying prior conviction than the one the PSR and district court identified | Gov't: A different prior conviction (attempted delivery to a minor) qualifies as an aggravated felony and supports § 1326(b)(2), so affirming on that basis is proper | Nunez: The PSR identified attempted sexual abuse as the predicate (which is not an aggravated felony); he had no opportunity to contest substitution and thus the judgment should be reformed to § 1326(b)(1) | Majority: Affirmed — court may affirm on any record-supported basis (used the drug conviction as qualifying) |
| Standard of review for failure to object to PSR attribution of the aggravated-felony predicate | Gov't: Plain-error review applies and no reversible error shown | Nunez: Because he lacked opportunity to address a substituted predicate, review should be more searching; government bears burden to prove enhancements | Majority: Applies plain-error framework and affirms |
| Whether sentencing under an incorrect statutory subsection requires resentencing or mere reformation of the judgment | Gov't: No resentencing necessary if alternative basis supports § 1326(b)(2) | Nunez (dissent): Even if sentence is within § 1326(b)(1) range, the statutory maximum underlies sentencing choice; at minimum remand to reform the judgment to § 1326(b)(1) | Majority: No remand; affirmed on alternative basis |
| Whether substituting the qualifying prior offense without district-court findings or defendant participation violates defendant's rights | Gov't: Substitution permissible where record supports it | Nunez: Substitution deprived him of the right to be present and to contest the enhancement; remand required | Majority: Rejects defendant's contention and affirms; Dissent would remand to reform judgment |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (statutory maximum affects facts that must inform sentencing choices)
- United States v. Bigelow, 462 F.3d 378 (5th Cir. 2006) (defendant’s constitutional right to be present at sentencing)
- United States v. Mondragon-Santiago, 564 F.3d 357 (5th Cir. 2009) (remand for judgment reformation may be appropriate where predicate conviction does not qualify)
- United States v. Olivares, 833 F.3d 450 (5th Cir. 2016) (PSR information presumed reliable absent competent rebuttal)
- United States v. Gamboa-Garcia, 620 F.3d 546 (5th Cir. 2010) (conviction under § 1326(b)(2) is itself an aggravated felony for some purposes)
- Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010) (limits on speculative inferences about whether a noncitizen would have acted differently when deprived of notice)