Case: 15-50076   Document: 00513446799    Page: 1   Date Filed: 03/31/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                No. 15-50076                             FILED
                       Consolidated with No. 15-50077              March 31, 2016
                                                                    Lyle W. Cayce
                                                                         Clerk

UNITED STATES OF AMERICA,

             Plaintiff - Appellee

v.

JOSE LUIS NAREZ-GARCIA,

             Defendant - Appellant




                Appeals from the United States District Court
                      for the Western District of Texas


Before CLEMENT, GRAVES, and COSTA, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      Jose Luis Narez-Garcia pleaded guilty to illegal reentry following
deportation. At sentencing, Narez-Garcia objected to the application of an
eight-level enhancement based on his prior Arkansas conviction of aggravated
assault on a household member. Narez-Garcia argued that his Arkansas
conviction did not constitute an aggravated felony because the offense did not
have as an element the use of force or involve a substantial risk that force
would be used against a person. The district court noted that Narez-Garcia had
been convicted of two offenses: aggravated assault on a household member and
domestic battery in the third degree, second offense. The district court
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overruled Narez-Garcia’s objection to the eight-level enhancement and
concluded that the domestic battery offense qualified as an aggravated felony
for purposes of the Guidelines. Narez-Garcia was sentenced within the
Guidelines to 33 months of imprisonment and a three-year term of supervised
release. Narez-Garcia appeals the application of the eight-level enhancement,
contending that the district court plainly erred. Because the district court did
not plainly err in applying the eight-level enhancement, we AFFIRM.
                                       I.
      In 2014, United States Border Patrol agents found Narez-Garcia, a
Mexican citizen, near Sierra Blanca, Texas. At the time, Narez-Garcia was on
supervised release for a prior illegal reentry conviction. He had not obtained
permission to reapply for admission. He was charged with and pleaded guilty
to illegal reentry into the United States after removal, in violation of 8 U.S.C.
§ 1326(a)(1).
      A probation officer prepared a Presentence Investigation Report (“PSR”)
stating that Narez-Garcia’s base offense level was eight. The probation officer
recommended an eight-level increase for an aggravated felony, under U.S.S.G.
§ 2L1.2(b)(1)(C). Narez-Garcia was previously convicted in Arkansas of
aggravated assault on a household member and domestic battery in the third
degree, second offense. The probation officer indicated that the conviction for
aggravated assault on a household member qualified as an aggravated felony,
thus mandating the eight-level increase. After applying a three-level
downward adjustment for acceptance of responsibility under U.S.S.G. §
3E1.1(b), Narez-Garcia’s total offense level was 13. Based on Narez-Garcia’s
offense level and his criminal history category of VI, the Guidelines range for
imprisonment was from 33 to 41 months.
      Before sentencing, Narez-Garcia objected to the eight-level increase in
the PSR, arguing that the Arkansas aggravated assault offense was not an
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aggravated felony under 8 U.S.C. § 1101(a)(43)(F) 1 because it did not qualify
as a crime of violence. Specifically, Narez-Garcia argued that because the
aggravated assault offense does not have the use of force as an element or
involve a substantial risk that force will be used against a person or property,
it was not a crime of violence.
      At sentencing, the district court noted that Narez-Garcia had been
convicted of two counts in Arkansas: one for aggravated assault on a family
member or household member and the other for domestic battery in the third
degree, second offense. The Arkansas Judgment and Disposition Order
(“Arkansas Judgment” or “Judgment”) showed the sentences for the two
offenses as:
      Period of Confinement:                                    _____ months.
      Suspended Imposition of Sentence:                         __72_ months.
      Period of Probation:                                      __12_ months.
The district court acknowledged the possibility that the aggravated assault
conviction did not qualify as an aggravated felony but questioned Narez-
Garcia’s counsel regarding the domestic battery conviction. Narez-Garcia’s
counsel posited the same objection to the domestic battery conviction, arguing
that it did not require that actual, physical force be imposed; thus, the domestic
battery conviction was not a crime of violence. The district court overruled the
objection and held that the domestic battery conviction qualified as an
aggravated felony.
      The district court refused Narez-Garcia’s request for a variance below
the Guidelines and sentenced him to 33 months’ imprisonment and a three-
year term of supervised release. The court also revoked Narez-Garcia’s prior



      1  8 U.S.C. § 1101(a)(43)(F) states that an “aggravated felony” includes a “crime of
violence . . . for which the term of imprisonment [is] at least one year.”
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supervised release and sentenced him to 18 months’ imprisonment to run
consecutively with his 33-month sentence. Narez-Garcia appealed.
                                       II.
      We review a district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. United
States v. Cisneros-Gutierrez, 

, 764 (5th Cir. 2008). If preserved for
appeal, the district court’s characterization of a prior offense as an aggravated
felony or as a crime of violence is a question of law that we review de novo. See
United States v. Izaguirre-Flores, 

, 272 (5th Cir. 2005) (per
curiam). If a challenge is not preserved for appeal, we review for plain error.
United States v. Juarez, 

, 253-54 (5th Cir. 2010).
      The parties dispute whether Narez-Garcia properly preserved his only
challenge on appeal—that the district court erred in applying the eight-level
enhancement because his Arkansas convictions did not result in a term of
imprisonment of at least one year, thus falling outside 8 U.S.C. §
1101(a)(43)(F)’s definition of an aggravated felony.
      “A party must raise a claim of error with the district court in such a
manner so that the district court may correct itself and thus, obviate the need
for our review.” United States v. Mondragon-Santiago, 

, 361 (5th
Cir. 2009) (internal quotation marks omitted). “[A]n argument is preserved
when the basis for objection presented below gave the district court the
opportunity to address the gravamen of the argument presented on appeal.”
United States v. Garcia-Perez, 

, 281-82 (5th Cir. 2015) (internal
quotation marks omitted).
      The government contends that Narez-Garcia’s appeal is subject to plain
error review because he failed to raise his argument that he was not sentenced
to at least one year of imprisonment in the district court. Narez-Garcia admits
that in the district court “he focused on the part of the aggravated-felony crime-
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of-violence definition having to do with the use of force as an element” and “did
not focus on the part of the aggravated-felony crime-of-violence definition
requiring a term of imprisonment of at least one year.” Even so, Narez-Garcia
argues that he adequately objected to both of his prior convictions being used
for the eight-level aggravated felony enhancement.
       Narez-Garcia’s argument is unavailing. Because Narez-Garcia did not
object to the enhancement on the specific ground he now raises on appeal—the
one-year-term-of-imprisonment requirement—and instead raised only his use-
of-force argument, this court’s review is limited to plain error. 2 See 

(reviewing for plain error where defendant objected to an
enhancement on grounds different from those raised on appeal).
       Plain error review involves four steps. Puckett v. United States, 

, 135 (2009) (citing United States v. Olano, 

(1993)).
              First, there must be an error or defect—some sort of
              [d]eviation from a legal rule—that has not been
              intentionally relinquished or abandoned, i.e.,
              affirmatively waived, by the appellant. Second, the
              legal error must be clear or obvious, rather than
              subject to reasonable dispute. Third, the error must
              have affected the appellant’s substantial rights, which
              in the ordinary case means he must demonstrate that
              it affected the outcome of the district court
              proceedings. Fourth and finally, if the above three
              prongs are satisfied, the court of appeals has the
              discretion to remedy the error—discretion which ought


       2 Narez-Garcia’s reliance on United States v. Medina-Anicacio, 

(5th Cir.
2003) is unhelpful. Medina-Anicacio is distinguishable from this case. Narez-Garcia reads
Medina-Anicacio to hold that a general objection to the application of a statute—even if the
parties and the court below focus on a different component of the statute than the component
of the statute at issue on appeal—preserves all arguments regarding the statute for appeal.
Medina-Anicacio actually stands for the much narrower proposition that when an appellant
raises an issue below, although inartfully, and the district court considers the issue, it is
preserved for appeal. 

In addition, Narez-Garcia’s broad reading of Medina-
Anicacio is inconsistent with other holdings of this court. See e.g., 

-
54.
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              to be exercised only if the error seriously affect[s] the
              fairness, integrity or public reputation of judicial
              proceedings. Meeting all four prongs is difficult, as it
              should be.

marks and citations omitted).
                                             III.
       Narez-Garcia argues that, even under plain error review, the district
court plainly erred in applying the eight-level increase under the U.S.S.G. §
2L1.2(b)(1)(C) because his Arkansas conviction for domestic battery does not
meet the definition for an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). 3
Narez-Garcia contends that the Arkansas state court did not impose a period
of confinement; the state court left this blank empty. Instead, it imposed 72
months, suspended imposition of sentence, and a period of probation of 12
months. Narez-Garcia argues that the state court thus did not impose any
sentence of imprisonment, let alone a one-year term, meaning that the
conviction does not qualify as an aggravated felony. Instead, he contends, his
sentence should be viewed as imposing probation, disqualifying it as an
aggravated felony under this court’s precedent.
       Assuming—without deciding—that the district court erred in classifying
Narez-Garcia’s Arkansas conviction as an aggravated felony, that error was
not “clear or obvious.” 

. Plain error is error that is so
clear or obvious that “the trial judge and prosecutor were derelict in
countenancing it, even absent the defendant’s timely assistance in detecting
it.” United States v. Hope, 

, 295-96 (5th Cir. 2008) (quoting United
States v. Frady, 

, 163 (1982)).




       3  This court generally does not consider arguments raised for the first time in a reply
brief, but we will review an argument that is made in response to an issue raised by appellee
in its brief. See United States v. Rodriguez, 

, 361 (5th Cir. 2010).
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       Federal law controls whether a state conviction qualifies as an
aggravated felony. See United States v. Vasquez-Balandran, 

, 650
(5th Cir. 1996). This court has never addressed the specific question at issue
here—whether a suspended imposition of a sentence in Arkansas qualifies as
a “term of imprisonment” for purposes of an aggravated felony sentencing
enhancement. There is a dearth of cases from any court addressing this issue. 4
What is more, Narez-Garcia’s conviction is difficult to cabin within our case
law. 5 And looking to Arkansas law here provides little guidance. See Medina-

(“[S]tate law has been found to aid this Court’s
analysis of the effect of a state court’s conviction on a defendant’s federal
sentence.” (citing 

)). Narez-Garcia argues
that the definition of “suspension” or “suspended imposition of sentence” under
Arkansas law, see Ark. Code Ann. § 5-4-101(6), proves that no sentence of
imprisonment was imposed in the first instance. But the confused history of
suspended imposition and suspended execution of sentences in Arkansas 6 and


       4 Narez-Garcia’s best case is an unpublished opinion from the BIA that lacks analysis.
See In re: Cardenas-Cardenas, A089 807 259, 

(BIA Feb. 24, 2010)
(unpublished). Because this unpublished opinion is not precedential, and because it lacks any
analysis for its conclusion, its value is limited.
       5 “Our precedent distinguishes between sentences of imprisonment that are imposed

but then suspended, and sentences that are for probation in the first instance without any
imprisonment contemplated.” 

(citing United States v.
Banda-Zamora, 

, 730 (5th Cir. 1999)). “If the sentencing court orders
imprisonment and then suspends it, the sentence counts under § 1101(a)(43)(F) for
determining if the term of imprisonment is at least one year in duration.” 

); see also United States v. Rios-Cortes, 

, 333-35
(5th Cir. 2011). If, however, the “sentencing court orders probation directly, then that
conviction does not count as a term of imprisonment or as an aggravated felony.” Mondragon-

(citing United States v. Herrera-Solorzano, 

, 50 (5th
Cir. 1997)). Relatedly, a reduction of a sentence to probation is different from a suspension of
a sentence for probation. See United States v. Landeros-Arreola, 

, 409-14 (5th
Cir. 2001) (holding that defendant’s Colorado state conviction was not an aggravated felony
because his sentence was reduced to probation after he completed a boot camp).
       6 See John M. A. DiPippa, Suspending Imposition and Execution of Criminal

Sentences: A Study of Judicial and Legislative Confusion, 10 U. Ark. Little Rock L.J. 367, 375
(1988); see also Culpepper v. State, 

, 221-23 (Ark. 1980) (recognizing confused
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the Judgment 7 make classifying Narez Garcia’s conviction under our case law
anything but a clear or obvious task.
       An error is not plain under current law “if a defendant’s theory requires
the extension of precedent.” United States v. Jackson, 

, 977 (5th
Cir. 2008). Narez-Garcia’s theory does so here. Had Narez-Garcia preserved
this issue for appeal, we would face a more difficult question. But under plain
error review, any error by the district court was not clear or obvious. 8
                                              IV.
       For the foregoing reasons, the district court did not plainly err in
applying the eight-level sentencing enhancement. AFFIRMED.




history of suspended imposition and suspended execution of sentences). Although an
Arkansas statute states that a “court may not suspend execution of sentence,” Arkansas case
law remains somewhat confused on this issue. Ark. Code Ann. § 5-4-104(e)(1)(B)(ii); see, e.g.,
Lalota v. State, No. CACR 06-821, 

, at *2 (Ark. Ct. App. Sep. 12, 2007)
(where court analyzed issue as if “suspended execution of sentence” is still an allowed
procedure under Arkansas law).
        7 The Judgment suspended imposition of sentence for 72 months and imposed a period
of probation of 12 months. But the suspended imposition of sentence and probation cannot
occur simultaneously, so the Judgment seems contrary to Arkansas law. See 

(“[T]he two [suspended imposition of sentence and probation] cannot occur
simultaneously, as the former is ‘without supervision’ and the latter requires ‘supervision of
a probation officer.’”); see also Ark. Code Ann. § 5-4-104(e)(1)(B)(i) (“In any other case, the
court may suspend imposition of sentence or place the defendant on probation.”) (emphasis
added); Ark. Code Ann. § 5-4-104(e)(2) (“If the offense is punishable by fine and
imprisonment, the court may sentence the defendant to pay a fine and suspend imposition of
the sentence as to imprisonment or place the defendant on probation.”) (emphasis added).
        8 Following briefing and oral argument in this court, Narez-Garcia moved to file a

supplemental brief. We granted that motion. In his supplemental brief, he points out that a
panel of this court recently held that the statutory definition of “crime of violence” in 18
U.S.C. § 16(b) is unconstitutionally vague. See United States v. Gonzalez-Longoria, No. 15-
40041, 

(5th Cir. Feb. 10, 2016), reh’g en banc granted 

(5th
Cir. 2016). Thus, he argues that the district court plainly erred by applying an
unconstitutional enhancement by construing his prior domestic battery conviction as a crime
of violence under 18 U.S.C. § 16(b). But Narez-Garcia’s argument fails for one key reason—
the district court applied the crime of violence definition from § 16(a), not § 16(b). See Tr. of
Sentence at 6 (focusing on the use of physical force as an element of the offense to hold that
the conviction qualified as a crime of violence). The panel in Gonzalez-Longoria did not
address whether § 16(a) is unconstitutional. Accordingly, we reject Narez-Garcia’s argument.
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JAMES E. GRAVES, JR., Circuit Judge, dissenting.
      The majority opinion concludes that the district court did not plainly err
when it imposed an eight-level enhancement to Narez-Garcia’s sentence
because of a prior conviction for an aggravated felony with a term of
imprisonment of at least one year under U.S.S.G. § 2L1.1(b)(1)(C). It also
rejects, in a footnote, Narez-Garcia’s argument that the eight-level
enhancement was improper because of our application of Johnson v. United
States, 

(2015), in United States v. Gonzalez-Longoria, No. 15-
40041, 

(5th Cir. Feb. 10, 2016), reh’g en banc granted, 

(5th Cir. 2016), invalidating 18 U.S.C. § 16(b)’s definition of crime
of violence as unconstitutionally vague. Because I conclude that the district
court plainly erred when it imposed the enhancement, I respectfully dissent.
                                       I.
      Narez-Garcia first challenges the eight-level enhancement, arguing that
he was not sentenced to a term of imprisonment of at least one year for the
prior Arkansas conviction. Therefore, Narez-Garcia contends, the eight-level
enhancement for a prior aggravated felony found in U.S.S.G. § 2L1.1(b)(1)(C)
was inapplicable to the Arkansas conviction. I agree.
      We have repeatedly held that for a suspended sentence to be read as
imposing a term of imprisonment, the sentence must be imposed in the first
instance and then suspended. United States v. Mondragon-Santiago, 

, 368 (5th Cir. 2009). If the sentence places conditions on release with the
option of later imposing a sentence for violating the terms of that release, then
the sentence does not include a term of imprisonment. 

reduction of a sentence to probation is not an imposition of a prison term, but
a suspension of a sentence for probation is an imposition of a sentence in the
first instance. United States v. Landeros-Arreola, 

, 409-14 (5th
Cir. 2001).
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      Narez-Garcia’s Arkansas convictions for aggravated assault and
domestic battery resulted in a suspended imposition of sentence of 72 months
and a 12-month term of probation. Arkansas Law defines suspended
imposition of sentence as “a procedure in which a defendant who pleads or is
found guilty of an offense is released by the court without pronouncement of
sentence and without supervision.” ARK. CODE. ANN. § 5-4-101(6). Probation
is defined as “a procedure in which a defendant who pleads or is found guilty
of an offense is released by the court without pronouncement of sentence but
subject to the supervision of a probation officer.” 

Neither
suspended imposition of sentence nor probation results in the imposition of a
sentence. Therefore, Arkansas’s     statutory commands are unimpeachable:
there is no term of imprisonment where there is no pronouncement of a
sentence.
      The majority opinion seeks to support its claim of a “confused history” of
defining suspended imposition of sentence by citing to a journal article and
Arkansas case law. Each cited authority, however, is consistent with the clear
statutory language. For example, the journal article clearly states that
“[s]uspension is defined as a procedure whereby a defendant . . . is released by
the court without pronouncement of sentence and without supervision.”
DiPippa, Suspending Imposition and Executive of Criminal Sentences: A Study
of Judicial and Legislative Confusion, 10 U. ARK. LITTLE ROCK L.J. 367, 374-
75 (1988) (internal quotations and citations omitted) (emphasis added).
Similarly, the majority cites an unpublished Arkansas Court of Appeals
decision, Lalota v. State, No. CACR 06-821, 

(Ark. Ct. App.
Sep. 12, 2007), in an attempt to demonstrate this “confused history.” But there
is no reference to a term of imprisonment being imposed and then suspended
pending compliance with certain conditions. Rather, Lalota explicitly states


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that the defendant’s “imposition of sentence was suspended,” and that the
court did not “impose an actual sentence.” 

      The majority, however, is correct that the Arkansas Supreme Court has
stated that a defendant may not be sentenced to both a suspended imposition
of sentence and probation at the same time. See Culpepper v. State, 

, 223 (Ark. 1980). But an unrelated error by the Arkansas judge when
sentencing Narez-Garcia cannot now be used by the majority as evidence that
the district court did not plainly err.
      The statutory language is crystal clear. Arkansas law prohibits the
imposition and then suspension of a term of imprisonment. Therefore, the
district court plainly erred when it applied an eight-level enhancement to
Narez-Garcia because of a past conviction for aggravated assault.
                                          II.
      Narez-Garcia also argues that the district court plainly erred because it
applied an unconstitutionally vague definition of crime of violence when
enhancing Narez-Garcia’s sentence as a result of a prior conviction for an
aggravated felony. More specifically, Narez-Garcia contends that our recent
decision in United States v. Gonzalez-Longoria that 18 U.S.C. § 16(b)’s residual
clause is unconstitutionally vague under Johnson, 

at * 9,
prohibits application of the eight-level enhancement. The majority rejects this
argument in a footnote, determining that the district court applied 18 U.S.C. §
16(a) instead of § 16(b). But their conclusion is not supported by the record.
      At the sentencing hearing, Narez-Garcia and the government conceded
that § 16(a) did not apply. See Tr. of Sentence at 3 (“[T]he government has
conceded that [Narez-Garcia’s prior conviction] is not a crime of violence . . .
under [§ 16(a)’s] definition so we’re going to concentrate on [§] (b).”). The
district court neither rejected nor accepted the concession; instead, it read
aloud the indictment from Narez-Garcia’s Arkansas convictions and asked
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"why doesn't that meet the requirements of an aggravated offense." 

Narez-Garcia responded that his convictions did not meet the definition of a
crime of violence under § 16(b). 

The district court rejected that
argument, concluding “that Count Two of the information does allege a count
of an aggravated offense, and that's one of the counts he plead to, and so I find
that it does meet the criteria of an aggravated offense, both under the
guidelines and under the statute and deny your objection." 

court, however, never stated whether this finding was made under § 16(a) or §
16(b). Therefore, given the concession by both parties, and that the district
court seems to agree and engage in a colloquy with defense counsel regarding
§ 16(b), I am compelled to conclude that the district court found that Narez-
Garcia’s prior convictions were a crime of violence under § 16(b).
       Because Narez-Garcia’s prior conviction was found to be a crime of
violence under § 16(b), I would apply the Johnson analysis and conclude that
the district court plainly erred when it imposed the eight-level enhancement
because § 16(b)’s residual clause is unconstitutionally vague. 1 The majority’s
summary disposal of Narez-Garcia's Johnson argument is therefore improper
given the overwhelming record evidence that Narez-Garcia was convicted
under § 16(b).
                                            III.
       The existence of error, however, is not enough. It must also be shown
that the wrongfully imposed sentence effected Narez-Garcia’s substantive
rights. If the district court properly applied the guidelines, the Arkansas
convictions would have resulted in a four-level enhancement for a prior



       1We recently decided that 18 U.S.C. § 16(b) is unconstitutionally vague. See Gonzalez-
Longoria, 

at * 9. Because en banc review is pending in Gonzalez-Longoria,
I would hold this case in abeyance pending final disposition of Gonzalez-Longoria by the en
banc court.
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conviction for any other felony. See U.S.S.G. § 2L.1.2(b)(1)(D). With an offense
level of 12, Narez-Garcia’s guidelines range would have been 24 to 30 months
imprisonment, lower than his 33-month sentence. Because Narez-Garcia was
sentenced to a term of imprisonment outside his proper guidelines range, it is
clear that the sentence effected Narez-Garcia’s substantive rights. Therefore,
I would exercise our discretion to vacate Narez-Garcia’s sentence and would
remand for resentencing.
      I respectfully dissent.




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