United States Court of Appeals

for the Fifth Circuit

No. 20-40097

United States of America, 

Plaintiff—Appellee,

versus

Alfonso Lopez-Rodriguez, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 1:19-CR-897-1

ON REMAND FROM 

THE SUPREME COURT OF THE UNITED STATES

Before Jolly, Elrod, and Graves, Circuit Judges.

Per Curiam:*

This court previously granted the government’s unopposed motion 

for summary affirmance of Alfonso Lopez-Rodriguez’s conviction under 8 

U.S.C. § 1326. Lopez-Rodriguez then petitioned for certiorari to the 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 24, 2021

Lyle W. Cayce

Clerk

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Supreme Court. The Supreme Court has now vacated the judgment and 

remanded to us with instructions to consider Lopez-Rodriguez’s appeal in 

the light of the Court’s decision in Borden v. United States, 141 S. Ct. 1817 

(2021). We have considered the effect Borden has on Lopez-Rodriguez’s 

conviction and, as we shall discuss, hold that it does not disturb this court’s 

earlier judgment. Consequently, we REINSTATE the judgment as 

previously entered.

I. 

On November 13, 2019, Lopez-Rodriguez pleaded guilty to illegal 

reentry of a removed alien in violation of 8 U.S.C. § 1326(a) and (b)(2).1 On 

February 5, 2020, the district court, upon Lopez-Rodriguez’s plea of guilty,

entered a judgment of conviction under section 1326(a) and (b)(2) and 

sentenced Lopez-Rodriguez to 57 months. Lopez-Rodriguez’s plea of guilty 

and the district court’s judgment of conviction under section 1326(b)(2) were

based on a prior Texas aggravated robbery conviction.2

1 8 U.S.C. § 1326(a) makes it a crime for “any alien who has been . . . removed or 

has departed the United States while an order of exclusion, deportation, or removal is 

outstanding, and thereafter enters . . . the United States . . . .” and imposes a statutory 

maximum of 2-years imprisonment for that crime. Section 1326(b)(2) further provides that 

when the crime of section 1326(a) is preceded by an aggravated felony, the maximum 

imprisonment is 20-years. 

2 A person commits Texas aggravated robbery “if he commits [simple robbery

under Texas Penal Code Ann. § 29.02] and he: (1) causes serious bodily injury to another; 

[or] (2) uses or exhibits a deadly weapon . . . .” Tex. Penal Code Ann. § 29.03(a)(1)–

(2) (emphasis added). A person commits simple robbery, “if, in the course of committing 

theft . . . and with intent to obtain or maintain control of the property, he: (1) intentionally, 

knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly 

threatens or places another in fear of imminent bodily injury or death.” Tex. Penal 

Code Ann. § 29.02(a) (emphasis added). Thus, in Texas, aggravated robbery 

incorporates the crime of simple robbery in its definition. 

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Lopez-Rodriguez appealed to this court and raised one issue: 

“Whether the district court plainly erred by convicting, sentencing, and 

entering judgment against Mr. Lopez-Rodriguez under 8 U.S.C. § 1326(b)(2)

because his conviction for Texas aggravated robbery was the only possible 

[underlying] predicate offense justifying a § 1326(b)(2) conviction and that

[state] offense can be committed recklessly.” That is to say, Texas aggravated 

robbery incorporates Texas simple robbery, which criminalizes reckless 

conduct. In the earlier proceeding before us, however, Lopez-Rodriguez 

acknowledged that Fifth Circuit precedent—United States v. Burris, 920 F.3d 

942 (5th Cir. 2019), vacated and remanded, 2021 U.S. LEXIS 3211 (June 21, 

2021)—foreclosed his argument at the time, but he nevertheless sought to 

preserve the issue given the Supreme Court’s pending decision in Borden.

The government filed an unopposed motion for summary affirmance of his 

conviction, which this court granted on August 18, 2020. Lopez-Rodriguez 

subsequently petitioned the Supreme Court for certiorari. On June 21, 2021,

after it had decided Borden, the Supreme Court granted certiorari, vacated

ourjudgment, and remanded the case to us “for further consideration in [the] 

light of Borden v. United States.” 

II. 

A.

So, the question we proceed to answer is whether Borden requires us 

to vacate Lopez-Rodriguez’s conviction of illegal reentry and sentencing 

under section 1326(b)(2). In Borden, the defendant, under the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e), received an enhanced sentence 

because of a prior Tennessee state conviction of reckless aggravated assault 

that was treated as a crime of violence. 141 S. Ct. at 1822. Under Tennessee 

law, Borden’s reckless aggravated assault conviction required that he 

“recklessly commit an assault” that either resulted in serious bodily injury 

or death or involved a deadly weapon. Tenn. Code Ann. § 39-13-

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102(a)(1)(B). The Supreme Court reversed. It held that because a “crime of 

violence” required the “use of physical force against the person of another” 

a crime supporting an ACCA enhancement required a higher degree of mens 

rea than recklessness. Borden, 141 S. Ct. at 1825. Therefore, because, under 

his indictment, Borden’s state court conviction could have been for reckless

aggravated assault, the Supreme Court reversed his “crime of violence” 

sentencing enhancement. Id. at 1834. 

Similarly, and relevant here, a sentence under section 1326(b)(2) 

requires a showing of a previous conviction for an “aggravated felony.” As 

pertinent to this appeal, 8 U.S.C. § 1101(a)(43)(F) defines an aggravated 

felony as “a crime of violence (as defined in section 16 of title 18 . . . ) for 

which the term of imprisonment [is] at least one year.” 18 U.S.C. § 16(a) 

defines a “crime of violence” as “an offense that has as an element the use, 

attempted use, or threatened use of physical force against the person or 

property of another[.]”3In short, the question before us is not whether 

Lopez-Rodriguez committed a robbery under Texas law—he did—but 

whether that Texas robbery constituted an aggravated felony in the light of 

Borden.

B.

Upon remand, we requested supplemental letter briefs addressing

Borden’s effect on Lopez-Rodriguez’s appeal. In his letter brief, LopezRodriguez argued that Borden barred his conviction under section 1326(b)(2) 

because Texas’s aggravated robbery statute incorporates, as an element,

simple robbery, which allows a conviction based on a mens rea of only

3

 Borden specifically ruled on the “use of physical force” phrase as it applied to a 

“violent felony” under the ACCA. The ACCA’s “violent felony” and section 16’s “crime 

of violence” definitions are nearly identical, however, and the government agrees that 

Borden applies to section 16(a).

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recklessness. And further, Lopez-Rodriguez argued, the record on appeal

here does not establish that Lopez-Rodriguez was actually charged with, or 

pleaded guilty, to a crime with a higher standard of mens rea than 

recklessness. In response, the government argued that Borden had no effect 

on Lopez-Rodriguez’s case because the state indictment and PSR clearly 

showed that Lopez-Rodriguez was charged with and pleaded guilty to 

committing the robbery with intent or knowledge that his actions would cause 

the victim fear of imminent harm; thus, the robbery was not merely recklessly 

committed.

Along with its letter brief, the government filed a motion, opposed by 

Lopez-Rodriguez, to supplement the record with the state indictment.4 We 

granted that motion.

4 The indictment charges, 

THE GRAND JURORS, for the County of Cameron, 

State of Texas, duly organized, upon their oaths present 

in the said Court, and for the term aforesaid, present that 

ALFONZO LOPEZ RODRIGUEZ, hereinafter called the 

Defendant, on or about the 21ST DAY OF JULY, 2011, 

and anterior to the presentment of this indictment, in the 

County of Cameron and State of Texas, did then and 

there, while in the course of committing theft of property 

and with intent to obtain or maintain control of said 

property, intentionally or knowingly threaten or place 

Leidy Barragan in fear of imminent bodily injury or death, 

and the defendant did then and there use or exhibit a 

deadly weapon, to-wit: a knife. 

And it is further presented in and to said Court that, prior 

to the commission of the aforesaid offense, on the 22nd 

day of September, 2009, in cause number CR-2988-09-B 

in the 93rd Judicial District of Hidalgo County, Texas, the 

defendant was convicted of the felony offense of Assault 

Against a Public Servant.

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C.

First, it is important to our consideration whether the Texas 

aggravated robbery statute is divisible into separate robbery crimes—and our 

precedent in United States v. Lerma, 877 F.3d 628, 634 (5th Cir. 2017), has 

said clearly that it is. Because Lopez-Rodriguez’s statute of conviction for 

aggravated robbery is divisible we use the modified categorical approach to 

examine the particular crime of robbery that he committed. 

To assess whether a prior conviction constitutes a “crime of 

violence” we would usually apply the categorical approach, which focuses on 

the elements of the specific crime and not the underlying facts of conviction. 

United States v. Martinez-Rodriguez, 857 F.3d 282, 285 (5th Cir. 2017). The 

categorical approach isstraightforward when a statute involves a single list of 

elements for a singular crime. “Some statutes, however, have a more 

complicated (sometimes called ‘divisible’) structure . . . .” Mathis v. United 

States, 136 S. Ct. 2243, 2249 (2016). Divisible statutes “list elements in the 

alternative, and thereby define multiple crimes.” Id. If a statute is divisible

into different crimes then a modified categorical approach is appropriate to 

determine which of the crimes referred to in the statute was committed. This 

approach allows us to look at “a limited class of documents (for example, the 

indictment, jury instructions, or plea agreement and colloquy) to determine 

what crime, with what elements, a defendant was convicted of.” Id. When a 

defendant has pleaded guilty, the proper documents to consider when using 

the modified categorical approach are the “charging document, written plea 

agreement, transcript of plea colloquy, and any explicit factual finding by the 

trial judgment to which the defendant assented.” United States v. MartinezVega, 471 F.3d 559, 561 (5th Cir. 2006).

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D.

As we have noted, our precedent holds that the Texas aggravated 

robbery statute, which incorporates the simple robbery statute with its 

reference to reckless conduct, is a divisible statute. Lerma, 877 F.3d at 634. 

Thus, under the modified categorical approach, we now can turn to other 

documents, like the indictment (which has been added to the appellate record 

per our grant of the government’s motion to expand the record), to 

determine if these documents indicate Lopez-Rodriguez’s crime of 

conviction was committed with a higher degree of mens rea than recklessness.

The indictment clearly shows Lopez-Rodriguez was charged with and 

pleaded guilty to aggravated robbery based on intentionally and knowingly 

threatening another person in the course of a robbery. The indictment 

charges that Lopez-Rodriguez “while in the course of committing theft of 

property . . . intentionally or knowingly threaten[ed] or place[d the victim] in 

fear of imminent bodily injury or death . . . .” (emphasis added). The 

indictment further charges that Lopez-Rodriguez, in the course of the 

robbery-by-threat, “did then and there use or exhibit a deadly weapon, to wit: 

a knife.” The judgment of conviction shows Lopez-Rodriguez pleaded guilty 

to the aggravated robbery offense as set out in the indictment. Consequently, 

the crime charged against Lopez-Rodriguez, and to which he pleaded guilty, 

involved a higher mens rea—intent or knowledge—than recklessness, and

thus satisfies the elements of an aggravated felony (i.e., a crime of violence)

as provided in his section 1326(b)(2) conviction.

III.

To sum up: in this opinion, we have held that Borden does not upset 

Lopez-Rodriguez’s conviction or sentence under 8 U.S.C. § 1326. We have 

used the modified categorical approach to determine that Lopez-Rodriguez’s 

aggravated robbery conviction is based on knowing or intentional conduct, a 

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higher standard of mens rea than recklessness. Consequently, we have 

concluded that Lopez-Rodriguez’s conviction for aggravated robbery under 

Texas law is a “crime of violence,” which confirms his section 1326(b)(2) 

conviction and enhanced sentence, irrespective of Borden’s holding. Our 

previous judgment is, therefore, REINSTATED.

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