United States Court of Appeals

for 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

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No. 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 

prison 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 675. We have determined that a conviction 

pursuant to California Health and Safety Code § 11378 is not categorically an 

aggravated felony. See United States v. Castellon-Aragon, 772 F.3d 1023, 

1024-26 (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 has supplemented the 

record on appeal. Among the documents submitted by the Government was 

a felony complaint charging Ixcopal-Hernandez with a violation of California 

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No. 21-50807

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Health and Safety Code § 11378, asserting that he unlawfully possessed 

methamphetamine for 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. Accordingly, 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 Castellon-Aragon, 772 

F.3d at 1024-26. 

The judgment of the district court is AFFIRMED.

Case: 21-50807 Document: 00516640334 Page: 3 Date Filed: 02/09/2023