United States Court of Appeals

for 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 illegally 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 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opinion should not be published and is not precedent except under the limited 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

August 27, 2021

Lyle W. Cayce

Clerk
No. 18-40338

2

On appeal, he argued his underlying felony conviction for Texas family 

violence assault did not constitute an aggravated 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. GraciaCantu, 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,” cannot 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 state conviction qualifies as an 

aggravated felony only via 18 U.S.C. § 16(a), which defines “crime of 

violence” virtually identically 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 person’s spouse” (emphasis added)). We 

agree.

 Nonetheless, both parties also agree that Olvera-Martinez’s

conviction falls within 8 U.S.C. § 1326(b)(1), which covers illegal reentry 
No. 18-40338

3

after conviction on three or more qualifying misdemeanors or a nonaggravated 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 maximum 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. See 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 

where “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).