United States Court of Appeals

for the Fifth Circuit

No. 15-40108

Summary Calendar

United States of America, 

Plaintiff—Appellee,

versus

Jose Lara-Garcia, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 5:14-CR-9-1 

ON REMAND FROM

THE SUPREME COURT OF THE UNITED STATES

Before Davis, Haynes, and Graves, Circuit Judges.

Per Curiam:*

* 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opinion should not be published and is not precedent except under the limited 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 11, 2021

Lyle W. Cayce

Clerk

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Jose Lara-Garcia pled guilty, without a plea agreement, to illegally 

reentering the United States after deportation in violation of 8 U.S.C. § 1326.

The district court sentenced him to 46 months’ imprisonment with no term 

of supervised release. The written judgment reflects that Lara-Garcia was 

sentenced under 8 U.S.C. § 1326(b)(2), based on the district court’s 

conclusion that his prior conviction for aggravated assault in Texas qualifies 

as an “aggravated felony” under § 1326(b)(2). Lara-Garcia argues on appeal 

that Texas aggravated assault is not a crime of violence under Supreme Court 

caselaw. He therefore asks that we vacate the judgment and remand for the 

district court to enter an amended judgment reflecting that he was convicted 

under § 1326(b)(1), a less serious offense. While we agree that the district 

court should have sentenced Lara-Garcia under § 1326(b)(1), we reform the 

district court’s judgment rather than remanding.

We have twice affirmed the judgment below, see United States v. LaraGarcia, 671 F. App’x 248, 249 (5th Cir. 2016); United States v. Lara-Garcia, 

772 F, App’x 100 (5th Cir. 2019), but the Supreme Court vacated our latest 

judgment and remanded for further consideration in light of Borden v. United 

States, 141 S. Ct. 1817 (2021). Lara-Garcia v. United States, 141 S. Ct. 2780

(2021). The government concedes on remand that, under Borden, the district 

court erred by entering judgment under 8 U.S.C. § 1326(b)(2), because LaraGarcia’s Texas aggravated assault conviction does not qualify as a “crime of 

violence” under 18 U.S.C. § 16. We agree. Lara-Garcia was convicted of 

violating § 22.02(a)1 of the Texas Penal Code, an indivisible offense which 

1 A person commits aggravated assault in Texas “if the person commits assault as 

defined in [Texas Penal Code] § 22.01” and either “(1) causes serious bodily injury to 

another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the 

commission of the assault.” TEX. PENAL CODE § 22.02(a)(1) & (2). An assault under 

§ 22.01 occurs when a person: 

(1) intentionally, knowingly, or recklessly causes bodily injury to 

another, including the person’s spouse;

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may be committed recklessly, and therefore that conviction cannot form the 

predicate “aggravated felony” under § 1326(b)(2).2 See United States v. 

Torres, 923 F.3d 420, 425 (5th Cir. 2019) (holding that the alternative forms 

of mens rea in § 22.01(a)(1) are indivisible); Gomez-Perez v. Lynch, 829 F.3d 

323, 328 (5th Cir. 2016) (noting that, under the categorical approach, courts 

presume that the defendant was convicted of the offense involving the least 

degree of culpability). The district court therefore erred in entering judgment 

under § 1326(b)(2). Such an error can have collateral consequences for a

defendant, such as permanent inadmissibility to the United States, because a 

conviction for unlawful reentry following a prior conviction for an aggravated 

felony under § 1326(b)(2) is itself an aggravated felony.3 United States v. 

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

While the parties agree that the district court should have entered 

judgment under § 1326(b)(1), they disagree as to the remedy. The 

government asks that we reform the judgment, while Lara-Garcia asks that 

(2) intentionally or knowingly threatens another with imminent 

bodily injury, including the person’s spouse; or 

(3) intentionally or knowingly causes physical contact with 

another when the person knows or should reasonably believe that the other 

will regard the contact as offensive or provocative. 

TEX. PENAL CODE § 22.01(a)(1)-(3). 2 A defendant convicted of illegal reentry after previous removal from the United 

States, and whose removal followed a conviction for an “aggravated felony,” is subject to 

a maximum sentence of twenty years under 8 U.S.C. § 1326(b)(2). But if the defendant’s 

prior removal followed a conviction for a felony that does not qualify as an “aggravated 

felony,” then the defendant is subject to a maximum sentence of 10 years. 8 U.S.C. 

§ 1326(b)(1). Federal law defines “aggravated felony” to include a “crime of violence” as 

defined in 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F). Section 16(a) in turn 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.” 18 U.S.C. § 16(a). 

3 For this reason, the fact that Lara-Garcia was released from prison in 2017 does 

not moot his appeal, a point which the government also concedes. United States v. Ovalle–

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

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we vacate the judgment and remand for the district court to amend it. By 

statute this court can “affirm, modify, vacate, set aside or reverse any 

judgment, decree, or order of a court lawfully brought before it for review, 

and may remand the cause and direct the entry of such appropriate judgment, 

decree, or order, or require such further proceedings to be had as may be just 

under the circumstances.” 28 U.S.C. § 2106. “The best reading of the 

statute confers discretion either to reform the judgment or to remand for the 

district to do so.” United States v. Hermoso, 484 F. App’x 970, 972–73 (5th 

Cir. 2012). We have reformed judgments when district courts have 

incorrectly entered convictions under § 1326(b)(2) rather than under 

§ 1326(b)(1). E.g., United States v. Trujillo, 4 F.4th 287, 291 (5th Cir. 2021)

United States v. Godoy, 890 F.3d 531, 541–42 (5th Cir. 2018); United States v. 

Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009). And we have opted 

for reformation rather than vacatur when the defendant fails to show that the 

mistake affected the defendant’s sentence. See United States v. Trujillo, 4 

F.4th 287, 291 (5th Cir. 2021); United States v. Mondragon-Santiago, 564 F.3d 

357, 369 (5th Cir. 2009)

Lara-Garcia acknowledges that reformation would correct the error 

below and he makes no argument that the error affected his sentence. He 

nonetheless insists that vacatur is necessary to protect him in future 

immigration proceedings. He contends that, if we only reform the judgment

rather than vacating it for the district court to amend it, he runs the risk that 

a district court, law enforcement officers, and immigration courts involved in 

his hypothetical, future illegal reentry case or immigration proceeding might

ignore or overlook a reformation of judgment ordered by this court. We 

decline Lara-Garcia’s request as too tenuous. To conserve judicial resources 

we instead reform the judgment to reflect that he was convicted and 

sentenced under 8 U.S.C. § 1326(b)(1). Cf. Trujillo, 4 F.4th at 291 (“We will 

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not order remand simply because [the defendant] hopes to create a better 

appellate record.”).

Accordingly, we REFORM the judgment to reflect conviction and 

sentencing under 8 U.S.C. § 1326(b)(1) and AFFIRM the sentence as 

reformed.

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