# United States Court of Appeals

f or the Fifth Circuit

No. 18

- 40338

United States of America,
Plaintiff

— Appellee ,

versus

Margarito Olvera

- Martinez, also known as Margarito Olvera Martinez , Defendant

— Appellant

.

Appeal from the United States District Court for the Southern District of Texas USDC No. 2:17

- CR

- 783

On Remand from the United States Supreme Court Before Smith, Dennis, and Duncan, Circuit Judges

. Per Curiam : * Margarito Olvera

- Martinez pled guilty of illegal ly reentering the United States after having been convicted of an aggravated felony , in violation of 8 U.S.C. § 1326 (b)(2), and was sentenced to 36 months in prison

.

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 27, 2021 Lyle W. Cayce ClerkNo. 18

- 40338

2 On appeal, he argued his underlying felony conviction for Texas family violence assault did not constitute an aggra vated felony under § 1326(b)(2)

. See Tex

. Penal Code § 22.01(a)(1) , (b)(2)

. We affirmed, concluding that argument was foreclosed by our precedent

. United States v. Olvera

- Martinez , 776 F. App’x 875 (5th Cir. 2019) (per curiam) (citing United States v. Grac ia

Cantu , 920 F.3d 252 (5th Cir. 2019) ). Olvera

- Martinez petitioned the United States Supreme Court for a writ of certiorari.

While his petition was pending, the Supreme Court decided in Borden v. United States , 141 S. Ct. 1817, 1821

- 22 (2021), that a crime capable of commission with a “less culpable mental state than purpose or knowledge , ” such as “recklessness , ” cann ot qualify as a “violent felony” under the Armed Career Criminal Act (ACCA) , 18 U.S.C. § 924(e)

. The Court then granted Olvera

- Martinez’s petition , vacated our judgment, and remanded for “further consideration in light of Borden

. ” Olvera

- Martinez v. United States , No. 19

- 6908, 2021 WL 2519043 (U.S. June 21, 2021).

Olvera

- Martinez’s underlying stat e conviction qualifies as an aggravated felony only via 18 U.S.C. § 16 (a), which defines “crime of violence” virtually identical ly to the ACCA provision at issue in Borden

. See 18 U.S.C. § 924(e)(2)(B); 8 U.S.C. § 1101(43)(F); see also United States v. Trujillo , 4 F.4th 287, 289 (5th Cir. 2021). On remand , the parties agree that , in light of Borden , Olvera

- Martinez should not have been sentenced under § 1326(b)(2) because Texas family violence assault can be committed recklessly

. See Tex. Penal Code § 22 .01(a)(1) ( one commits family violence assault by “ intentionally, knowingly, or recklessly caus [ing] bodily injury to another, including the per son’s spouse” (emphasis added) )

. We
agree. Nonetheless, both parties also agree that Olvera

- Martinez’s convict io n falls within 8 U.S.C. § 1326(b)( 1), which covers illegal reentryNo. 18

- 40338

3 after conviction on three or more qualifying misdemeanors or a non

aggravated felony. They are correct

. We may either reform Olvera

- Martinez’s judgment or remand for the district court to do so. See 28 U.S.C. § 2106 ; United States v. Hermoso , 484 F. App’x 970, 973 (5th Cir. 2012) (per curiam). Reformation without remand is appropriate here

. Olvera

- Martinez’s 36

- month sentence is well below the statutory maxi mum under either § 1326(b)(1) (10 years) or (b )( 2) (20 years) and is warranted by the facts. That said , a (b)(2) conviction can result in collateral consequences that do not attach to a (b)(1) conviction

. S ee United States v. Ovalle

- Garcia , 868 F.3d 313, 314 (5th Cir. 2017)

. We therefore reform the judgment to reflect that Olvera

- Martinez was convicted and sentenced under § 1326(b)(1), not (b)(2)

. Cf. Trujillo , 4 F.4th at 289 (reforming judgment to correct error under § 1326(b)(2) without remanding wh ere “the error did not ultimately affect [the] sentence”)

. * * * The judgment is AFFIRMED as REFORMED to reflect that Olvera

- Martinez was convicted and sentenced under 8 U.S.C. § 1326(b)(1)

.