United States Court of Appeals

for the Fifth Circuit _____________

No. 22-50357

consolidated with

No. 22-50363

Summary Calendar

_____________

United States of America, 

Plaintiff—Appellee, 

versus

Oscar Esquivel-Ruiz, 

Defendant—Appellant. 

______________________________

Appeals from the United States District Court 

for the Western District of Texas

USDC Nos. 4:21-CR-975-1, 4:21-CR-1081-1 

______________________________

Before Jones, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

Oscar Esquivel-Ruiz appeals his guilty plea conviction and sentence 

for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and 

(b)(1), along with the revocation of the term of supervised release he was 

serving for a prior illegal reentry offense. He has not briefed the validity of

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

May 18, 2023

Lyle W. Cayce

Clerk

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the revocation of his supervised release or his revocation sentence and has, 

therefore, abandoned any challenge to them. See United States v. Reagan, 596 

F.3d 251, 254-55 (5th Cir. 2010).

For the first time on appeal, Esquivel-Ruiz contends that the district 

court erred by enhancing his sentence under § 1326(b)(1) because the 

indictment and factual basis for his guilty plea only established, and he only 

admitted to, a deportation that preceded his three prior felony reentry 

convictions. As the parties agree, we review this unpreserved claim for plain 

error only. See United States v. Velasquez-Torrez, 609 F.3d 743, 746 (5th Cir. 

2010); see also Puckett v. United States, 556 U.S. 129, 135 (2009).

Generally, the statutory maximum term of imprisonment for an illegal 

reentry offense is two years. § 1326(a). However, the statutory maximum 

for an offense is increased to 10 years if the defendant’s “removal was 

subsequent to a conviction for . . . a felony (other than an aggravated felony).” 

§ 1326(b)(1). The fact that the defendant was removed or deported after the 

predicate felony conviction must be either proven beyond a reasonable doubt 

or admitted by the defendant. See Velasquez-Torrez, 609 F.3d at 746; see also

United States v. Rojas-Luna, 522 F.3d 502, 506-07 (5th Cir. 2008) (citing

Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). 

According to the presentence report (PSR), immigration records

(which were provided to the defense as discovery) revealed that EsquivelRuiz was deported on three separate occasions after serving sentences for 

each of his prior felony reentry convictions. At sentencing, Esquivel-Ruiz 

stated that he had reviewed the PSR and, through counsel, affirmed that he 

had no corrections to the PSR. In light of these circumstances, it is at least 

subject to reasonable dispute whether Esquivel-Ruiz admitted that he was 

deported after a felony conviction; thus, the district court did not commit a 

clear or obvious error by applying an enhanced statutory maximum. 

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See Puckett, 556 U.S. at 135; Velasquez-Torrez, 609 F.3d at 746-48; United 

States v. Ramirez, 557 F.3d 200, 204-05 (5th Cir. 2009). Moreover, any error 

did not seriously affect the fairness, integrity, or public reputation of the 

judicial proceedings. See Ramirez, 557 F.3d at 205; see also Puckett, 556 U.S. 

at 135; United States v. Cotton, 535 U.S. 625, 633-34 (2002).

AFFIRMED.

Case: 22-50357 Document: 00516755226 Page: 3 Date Filed: 05/18/2023