# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 21 - 50807 Summary Calendar

**____________ United States of America,**  Plaintiff
— Appellee **,** versus **Alex Estuardo Ixcopal -**  **Hernandez,** Defendant
— Appellant **.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 4:21 - CR - 249 -1

**______________________________** Before **King, Higginson,** and **Willett,** Circuit Judges **. Per Curiam**  **:** ***** Alex Estuardo Ixcopal - Hernandez appeals his conviction for illegal reentry in violation of 8 U.S.C. § 1326(b)(2). He argues that his judgment should reflect a conviction pursuant to § 1326(b)(1) because his predicate offense, a prior California conviction for possession of a controlled substance

**_____________________** * This opinion is not designated for publication. See **5th Cir . R.**  47.5. United States Court of Appeals Fifth Circuit 

### FILED February 9, 2023

Lyle W. Cayce Clerk Case: 21-50807 Document: 00516640334 Page: 1 Date Filed: 02/09/2023No. 21 - 50807

2 for sale, was not properly classified as an aggravated felony such that it would support a conviction under § 1326(b)(2). Because Ixcopal - Hernandez did not object to the entry of a conviction under § 1326(b)(2), we review for plain error only. See United States v. Trujillo , 4 F.4th. 287, 291 (5th Cir. 2021) , cert. denied , 142 S. Ct. 837 (2022) . As an initial matter, although Ixcopal - Hernandez has been released from pris on and may have already been removed from the United States, this appeal is not moot because his conviction under § 1326(b)(2) has continuing collateral consequences . See United States v. Vega , 960 F.3d 669, 673 (5th Cir. 2020) ; United States v . Tzacir - Garcia , 928 F.3d 448, 450 & n.3 (5th Cir. 2019) . Courts employ a categorical approach to determine whether a state offense qualifies as an aggravated felony. Moncrieffe v. Holder , 569 U.S. 184, 190 (2013); Vega , 960 F.3d at 67 5. We have determined that a conviction pursuant to California Health and Saf ety Code § 113 78 is not categorically an aggravated felony. S ee United States v. Castellon - Aragon , 772 F.3d 1023, 102 4 - 2 6 (5th Cir. 2014 ). Under the modified categorical approach, a conviction would constitute an aggravated felony only if documents, such as the charging document or plea agreement, establish that the defendant’s conviction was based on a substance prohibited under the Controlled Substances Act (CSA). See United States v. Gomez - Alvarez , 781 F.3d 787, 792, 794 - 96 (5th Cir. 2015). Ixcopal - Hernandez argues that the record did not contain any approved documents from which the district court could have determined that his conviction under § 11378 involved a substance prohibited under the CSA. He is correct. However, the Government ha s supplement ed the record on appeal . Among the documents submitted by the Government was a felony complaint charging Ixcopal - Hernandez with a violation of California Case: 21-50807 Document: 00516640334 Page: 2 Date Filed: 02/09/2023No. 21 - 50807

3 Health and Safety Code § 113 78, asserting that he unlawfully possessed methamphetamine fo r the purpose of a sale. Because the felony complaint served as the charging document, the complaint is an approved source to establish the fact of a prior conviction under the modified categorical approach. See Gomez - Alvarez , 781 F.3d at 794 - 96. Accor dingly, the district court did not plainly err in concluding that Ixcopal - Hernandez ’s prior California conviction of possession for sale of a controlled substance was an aggravated felony. See Ca stellon - Aragon , 772 F.3d at 102 4 - 2 6 . The judgment of the d istrict court is **AFFIRMED.** Case: 21-50807 Document: 00516640334 Page: 3 Date Filed: 02/09/2023