Case: 15-41661      Document: 00514796428         Page: 1    Date Filed: 01/15/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-41661                 United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                                                   January 15, 2019
UNITED STATES OF AMERICA,
                                                                     Lyle W. Cayce
              Plaintiff - Appellee                                        Clerk


v.

JOSE MARIO RUBIO-SORTO,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:15-CR-677-1


     ON REMAND FROM THE UNITED STATES SUPREME COURT
Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       The Supreme Court remanded this case to our court “for further
consideration” in light of its recent decision in Sessions v. Dimaya, 

(2018). As the Dimaya decision overturns only one of the multiple
grounds on which we might have upheld the defendant’s conviction and
sentence, we now continue to affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41661     Document: 00514796428    Page: 2   Date Filed: 01/15/2019



                                 No. 15-41661
        Jose Mario Rubio-Sorto appealed his conviction and the sentence
imposed after he pleaded guilty to illegal reentry following deportation. He
argued his sentence should not have been enhanced based upon his Illinois
conviction for second-degree murder because that offense does not qualify as a
crime of violence under the Sentencing Guidelines. Rubio-Sorto also argued he
should not have been convicted under 8 U.S.C § 1326(b)(2) of illegally
reentering after being deported for the commission of an aggravated felony
because his Illinois conviction did not qualify as an aggravated felony. Because
Rubio-Sorto did not raise these issues below, our review was for plain error
only.
        We affirmed. As to Rubio-Sorto’s challenge to his sentencing
enhancement, we held that the district court did not plainly err in concluding
that the Illinois conviction for second-degree murder qualified as a crime of
violence. This court has never addressed whether the Illinois murder statute
is broader than the generic definition of murder, and there is ordinarily no
plain error where we have not previously addressed an issue. United States v.
Rubio-Sorto, 707 F. App’x 239, 240 (5th Cir. 2017) (per curiam). As to Rubio-
Sorto’s challenge to his conviction, we held that the district court did not
plainly err in concluding that the Illinois conviction for second-degree murder
was an aggravated felony because it qualified as a crime of violence under 18
U.S.C. § 16(b). At the time of our ruling, this court had rejected void-for-
vagueness challenges to § 16(b). United States v. Gonzalez-Longoria, 

, 677 (5th Cir. 2016) (en banc).
        Rubio-Sorto petitioned the Supreme Court for certiorari. Following its
decision in Dimaya, which held that 18 U.S.C. § 16(b) is unconstitutionally
vague, the Court remanded “for further consideration” in light of Dimaya.
Rubio-Sorto v. United States, 

, 2679 (2018). While our decision
to uphold Rubio-Sorto’s sentencing enhancement remains unaffected by
                                       2
    Case: 15-41661     Document: 00514796428      Page: 3   Date Filed: 01/15/2019



                                  No. 15-41661
Dimaya, we must now reconsider the second part of our holding: that Rubio-
Sorto’s Illinois conviction for second-degree murder qualifies as an aggravated
felony under 8 U.S.C. § 1101(a)(43).
      As explained in our original opinion, that provision lists “murder” as an
aggravated felony, see § 1101(a)(43)(A), and further incorporates the definition
of “crime of violence” as articulated in 18 U.S.C. § 16. See 8 U.S.C.
§ 1101(a)(43)(F). 18 U.S.C. § 16 in turn includes two provisions: (a) defining
crime of violence in relevant part as “an offense that has as an element the use,
attempted use, or threatened use of physical force”; and (b) including “any
other offense that is a felony and that, by its nature, involves a substantial risk
that physical force . . . may be used in the course of committing the offense.”
      Because 18 U.S.C. § 16(b) provided a sufficient basis for affirming, in our
original decision “we express[ed] no opinion on whether Illinois second degree
murder qualifies as ‘murder’ under [8 U.S.C. § 1101(a)(43)(A)], or whether it
contains the use of force element required under [18 U.S.C. § 16(a)].” Rubio-
Sorto, 707 F. App’x at 240. There was no need to examine the applicability of
those provisions to the Illinois statute, as Rubio-Sorto did not argue that his
conviction fell outside the scope of § 16(b)’s residual clause; he simply argued
the clause was unconstitutional. Now that § 16(b) has been declared
unconstitutional, however, discussion of § 1101(a)(43)(A) and § 16(a) cannot be
avoided. Rubio-Sorto argues that Illinois second-degree murder does not fall
under “murder” as defined in § 1101(a)(43)(A) or the use of force element
required under § 16(a).
      But Rubio-Sorto’s arguments for overturning his conviction must be
rejected for the same reason the court rejected his arguments for overturning
his enhanced sentence. Review here is for plain error. To demonstrate plain
error, Rubio-Sorto bears the burden of establishing that there is a clear or
obvious error that affects his substantial rights. United States v. Broussard,
                                        3
    Case: 15-41661      Document: 00514796428        Page: 4    Date Filed: 01/15/2019



                                    No. 15-41661

, 553 (5th Cir. 2012). The district court’s legal error must not be
subject to reasonable dispute. Puckett v. United States, 

, 135
(2009).
      Under § 1101(a)(43)(A), Rubio-Sorto’s conviction for second-degree
murder counts as an aggravated felony if it substantially matches the generic,
contemporary meaning of murder. See Esquivel-Quintana v. Sessions, 137 S.
Ct. 1562, 1567–68 (2017). As explained in our original opinion, we have never
considered whether the Illinois murder statute is broader than the generic
definition of murder. Rubio-Sorto, 707 F. App’x at 240. We have not even
adopted a definition of generic murder. 

ordinarily do not find plain
error where there is an absence of authority on point, 1 we decline to conclude
that any error by the district court in characterizing Rubio-Sorto’s Illinois
conviction as an aggravated felony was clear or obvious.
      We once again AFFIRM the judgment of the district court.




      1 Indeed, we have held that “[e]ven where the [defendant’s] argument requires
only extending authoritative precedent, the failure of the district court to do so cannot
be plain error.” United States v. Evans, 

, 671 (5th Cir. 2009) (quotations
omitted).
                                           4