United States v. Marco Hernandez-Prado


Case: 16-41140 Document: 00514823749 Page: 1 Date Filed: 02/05/2019 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 16-41140 February 5, 2019 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk Plaintiff - Appellee v. MARCO ANTONIO HERNANDEZ-PRADO, Defendant - Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15-CR-961-1 Before JOLLY, JONES, and DENNIS, Circuit Judges. PER CURIAM:* Marco Antonio Hernandez-Prado pleaded guilty to illegally reentering this country following a deportation that was subsequent to an aggravated felony. He admitted at rearraignment that he had been convicted of Texas aggravated assault with a deadly weapon in April 2001. The district court classified this prior conviction as an aggravated felony under 8 U.S.C. * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 16-41140 Document: 00514823749 Page: 2 Date Filed: 02/05/2019 No. 16-41140 § 1326(b)(2), 1 which increased Hernandez-Prado’s statutory maximum from two years to 20 years and affected his Guidelines calculation. 2 See 8 U.S.C. § 1326(a), (b)(2). Hernandez-Prado was ultimately sentenced to 72 months, five months below the suggested Guidelines range of 77 to 96 months. He appeals, arguing that he was subject to the two-year maximum sentence set out in § 1326(a), and, because his 72-month sentence exceeds that maximum, the sentence is illegal. We AFFIRM. I. Under 8 U.S.C. § 1326(a), an illegal-reentry defendant faces a maximum sentence of two years in prison. That statutory maximum increases to 10 years for an illegal-reentry defendant whose prior removal was subsequent to a felony conviction, 8 U.S.C. § 1326(b)(1), and it increases to 20 years for an illegal-reentry defendant whose prior deportation was subsequent to an aggravated felony, 8 U.S.C. § 1326(b)(2). Hernandez-Prado argues that his conviction for Texas aggravated assault with a deadly weapon was not an aggravated felony under § 1326(b)(2), and therefore his proper statutory maximum sentence was two years. Hernandez-Prado’s argument is unavailing. Section 1326(b)(1) provides for a 10-year maximum prison term for defendants whose prior removal was subsequent to any felony conviction other than an aggravated felony. § 1326(b)(1). We have previously found that a Texas conviction for aggravated 1 The judgment in this case reflects that Hernandez-Prado was convicted under § 1326(b), but it does not identify any specific subsection. However, the judgment describes the offense as illegal reentry following a prior deportation that was subsequent to the commission of an aggravated felony, and that description indicates that the conviction is under § 1326(b)(2). 2 The PSR referred to the prior conviction as an aggravated felony and used it to apply a 16-level increase in Hernandez-Prado’s offense level under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and to assign him three criminal history points under U.S.S.G. § 4A1.1(a) and U.S.S.G. § 4A1.2(k)(1). Hernandez-Prado does not challenge the application of the Guidelines in this appeal. ...

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