United States v. Martin Ovalle-Garcia, 868 F.3d 313

868 F.3d 313

5th Cir.

2017

UNITED STATES of America, Plaintiff-Appellee, v. Martin OVALLE-GARCIA, Defendant-Appellant.

No. 16-40829

United States Court of Appeals, Fifth Circuit.

August 8, 2017

313

The settlement order at issue merely memorialized the existing policy of the incoming administration. It did not actually alter the relationship between the parties. “Governor Edwards was elected on November 21, 2015. His policy with regard to this waiver was known, or easily discernable, long before this suit was filed on December 18, 2015.” His policy made inevitable the relief ultimately mandated in the settlement order.

Recognizing this, the panel remanded the case to the district court “to assess whether special circumstances apply” to justify not awarding attorney‘s fees—namely whether “even though the plaintiffs received the benefits desired from their litigation, their efforts did not contribute to achieving those results.” Romain v. Walters, 856 F.3d 402, 407-08 (5th Cir. 2017) (internal quotation marks omitted). I see no reason to move onto this step when Romain has demonstrably failed to show that the parties’ legal relationship today would be different in the absence of the settlement order. Categorizing the issue as a possible “special circumstance” unfairly flips the burden of proof onto the State. See Pruett v. Harris Cty. Bail Bond Bd., 499 F.3d 403, 417 (5th Cir. 2007). This is en banc worthy because by failing to correct this error, the court exposes the State—and by extension tax payers—to predatory lawyering, allowing attorneys to profit from announced policy changes by filing strategically-timed law suits, all the while wasting valuable judicial resources.

Accordingly, I respectfully dissent from the denial of en banc review.

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John Richard Berry, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney‘s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Philip G. Gallagher, Assistant Federal Public Defender, Evan Gray Howze, Assistant Federal Public Defender, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before DENNIS, PRADO, and OWEN, Circuit Judges.

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

EDWARD C. PRADO, Circuit Judge:

Martin Ovalle-Garcia pleaded guilty to illegal reentry after conviction of an aggravated felony under 8 U.S.C. § 1326(a) and (b)(2). He received a 12-level sentencing enhancement because he was previously deported after a conviction for a felony that was a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015). This Court affirmed the conviction and sentence. United States v. Ovalle-Garcia, 672 Fed.Appx. 421 (5th Cir. 2016) (per curiam). The Supreme Court then vacated the judgment and remanded for further consideration in light of Esquivel-Quintana v. Sessions, — U.S. —, 137 S.Ct. 1562, 198 L.Ed.2d 22 (2017). Ovalle-Garcia v. United States, — U.S. —, 137 S.Ct. 2215, 198 L.Ed.2d 656 (2017). In Esquivel-Quintana, the Court addressed the generic meaning of sexual abuse of a minor, which is an aggravated felony. See 8 U.S.C. § 1101(a)(43)(A). The Court held that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.” Esquivel-Quintana, 137 S.Ct. at 1568.

On remand, the parties agree that the predicate offense of which Ovalle-Garcia was convicted—Tennessee statutory rape—is broader than the generic crime of statutory rape because the age of consent in Tennessee is 18. Thus, Ovalle-Garcia‘s statutory rape conviction does not qualify either as an aggravated felony for purposes of 8 U.S.C. § 1326(b)(2) or as a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Ovalle-Garcia requests a limited remand to the district court for the purpose of correcting the judgment to reflect the fact that he was previously deported after a conviction of a non-aggravated felony. See United States v. Quintanilla-Ventura, 616 Fed.Appx. 189 (5th Cir. 2015) (providing this relief); United States v. Mejia, 589 Fed.Appx. 296 (5th Cir. 2015) (same). We explained in United States v. Briceno, 681 Fed.Appx. 334 (5th Cir. 2017), that this error in the judgment is neither harmless nor moot because the erroneous judgment could have collateral consequences. Specifically, a conviction under § 1326(b)(2)—involving a prior conviction of an aggravated felony—is itself an aggravated felony, “rendering [the defendant] permanently inadmissible to the United States.” Id. Thus, we REMAND to the district court for the limited purpose of correcting the judgment to reflect the correct offense of conviction as under § 1326(b)(1).

Because Ovalle-Garcia has served his sentence and been deported, he does not request resentencing. In light of this express waiver of his challenge to the sentence, we DISMISS his appeal of the sentence.

EDWARD C. PRADO

UNITED STATES CIRCUIT JUDGE