484 F. App'x 970
5th Cir.2012Background
- Hermoso pleaded guilty to illegal presence after deportation for an aggravated felony under 8 U.S.C. § 1326(a)(b)(2).
- PSR computed guideline range 41–51 months; district court imposed 40 months.
- Hermoso argued his Ohio gross-sexual-imposition conviction does not qualify as an aggravated felony under § 1326(b)(2).
- Defense contended he should have been convicted under § 1326(b)(1) for a non-aggravated felony.
- Court reviews for plain error since the objection was not raised in district court.
- Judgment ultimately affirmed as modified to reflect conviction under § 1326(b)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OH 2907.05(A)(1) qualifies as an aggravated felony | Hermoso argues not under § 1326(b)(2). | State that the offense cannot be categorized as aggravated felony. | Not an aggravated felony under § 1326(b)(2); but the sentence affirmed as modified. |
| Plain error review applicable for objection omission | Plain error occurred; improper conviction. | No plain error affecting substantial rights | Error likely didn’t affect sentence; plain-error review fails. |
| Whether conviction should be under § 1326(b)(1) instead | Should be non-aggravated felony subsection. | N/A or not disputed at length. | Conviction should be under § 1326(b)(1). |
| Remand vs reform of judgment | Remand for entry of correct conviction. | Remand or reform at district's discretion. | Court elected to reform the judgment to reflect § 1326(b)(1). |
Key Cases Cited
- Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012) (narrowly defining rape for § 1101(a)(43)(A))
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error review standard)
- Mondragon-Santiago v. United States, 564 F.3d 357 (5th Cir. 2009) (guidelines and sentencing considerations)
- United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc review cited for plain-error framework)