REVISED APRIL 2, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-40016

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

ARTURO ROJAS-LUNA

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 5:06-CR-903

Before KING, STEWART, and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-Appellant Arturo Rojas-Luna (“Rojas-Luna”) appeals the

sentence he received for violating 8 U.S.C. § 1326(a) by illegally entering the

United States after previously being removed. Because we conclude that the

district court’s use of Rojas-Luna’s 2006 removal for purposes enhancing his

sentence pursuant to 8 U.S.C. § 1326(b)(2) was plainly erroneous, we VACATE

Rojas-Luna’s sentence and REMAND for resentencing in conformance with this

opinion. 

United States Court of Appeals

Fifth Circuit

F I L E D

March 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-40016

2

I. FACTUAL AND PROCEDURAL BACKGROUND

Rojas-Luna, a citizen of Mexico who had previously been deported, was

apprehended by United States Border Patrol agents on May 30, 2006, near

Laredo, Texas. Because he lacked permission to be in the United States, RojasLuna was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). The

indictment did not specifically describe any of Rojas-Luna’s prior removals or

deportations, but generally alleged that Rojas-Luna had been previously

removed or deported and had not received permission to reenter the country.

At his rearraignment on August 9, 2006, Rojas-Luna pleaded guilty to

illegally reentering the United States. The factual basis for the charge, as

described by the Government during the rearraignment, was that Rojas-Luna

had been deported in 1988 and had reentered the United States on or about May

30, 2006, by wading the Rio Grande River. The district court accepted RojasLuna’s plea and set a date for sentencing.

The United States Probation Office then prepared Rojas-Luna’s

Presentence Investigation Report (“PSR”), which assigned an initial offense level

of eight to Rojas-Luna’s illegal reentry. See U.S.S.G. § 2L1.2(a). The PSR next

recommended that Rojas-Luna’s offense level be increased by sixteen levels

pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A), which

authorizes a sixteen-level increase for aliens who reenter the country after being

deported following a conviction for a crime of violence felony. The PSR noted

that Rojas-Luna was convicted in 2003 of aggravated assault and removed in

2006 following his prison term. Factoring in a three-level reduction for

acceptance of responsibility, Rojas-Luna’s total offense level was twenty-one.

Combined with his criminal history score, the recommended sentencing range

was seventy to eighty-seven months. Although the statutory maximum for

illegal reentry is typically two years in prison, see 8 U.S.C. § 1326(a), Rojas-
No. 07-40016

1 Apprendi v. New Jersey, 530 U.S. 466 (2000).

3

Luna’s 2003 conviction and subsequent removal raised the cap to twenty years

pursuant to 8 U.S.C. § 1326(b)(2).

At his sentencing on December 16, 2006, Rojas-Luna objected on Apprendi1

grounds to the constitutionality of using his 2003 conviction to increase the

statutory maximum sentence he could receive; however, he made no objection to

the PSR’s use of his 2006 removal to increase the statutory maximum. The

district court overruled the Apprendi objection and sentenced Rojas-Luna to

seventy-three months in prison.

Rojas-Luna now appeals, arguing that his 2006 removal must have been

proven to a jury beyond a reasonable doubt in order to increase the statutory

maximum sentence he could receive under 8 U.S.C. § 1326(b)(2). Rojas-Luna

also renews his Apprendi objection for purposes of preserving his claim on that

ground. We have jurisdiction pursuant to 28 U.S.C. § 1291 and now turn to the

merits of our decision.

II. STANDARD OF REVIEW

Because Rojas-Luna did not object to the use of his 2006 removal before

the district court, we review his claim on that ground for plain error. See United

States v. Grant, 493 F.3d 464, 468 (5th Cir. 2007). To prevail under the plain

error standard, Rojas-Luna must demonstrate (1) an error, (2) that is clear or

obvious, and (3) that affects his substantial rights. See United States v.

McCrimmon, 443 F.3d 454, 458 (5th Cir.), cert. denied, 547 U.S. 1120 (2006). If

these three conditions are met, we may exercise our discretion to correct the

error, but only if (4) the error “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. (internal quotation marks omitted).
No. 07-40016

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III. DISCUSSION

On appeal, Rojas-Luna argues thatthe district court should not have been

allowed to find the fact of his 2006 removal in order to increase the statutory

maximum sentence he could receive; instead, Rojas-Luna asserts that such a

finding must be made by a jury following proof beyond a reasonable doubt. The

Government counters that Rojas-Luna’s 2006 removal is simply a sentencing

factor that does not have to be proven to a jury. Before addressing the

arguments of the parties, we first make clear why the 2006 removal is essential

to the sentencing enhancement in the first place.

As noted above, the statute under which Rojas-Luna was convicted, 8

U.S.C. § 1326(a), provides for a maximum penalty of two years’ imprisonment

for illegal reentry. However, pursuant to § 1326(b)(2), the maximum penalty is

increased to twenty years in prison for an alien whose prior removal “was

subsequent to a conviction for commission of an aggravated felony . . . .” Id.

(emphasis added). At his rearraignment, Rojas-Luna pleaded guilty to

reentering the country after having been removed in 1988. Because he was not

convicted of aggravated assault until 2003, his 1988 removal, although sufficient

to convict him of violating § 1326(a), could notform the basis ofthe enhancement

in § 1326(b)(2), because it was not “subsequent to” his conviction. See United

States v. Sanchez-Mota, 319 F.3d 1, 3-4 (1st Cir. 2002) (per curiam) (holding that

§ 1326(b)(2) did not apply to an alien who was not removed subsequent to his

conviction). Consequently, under the plain terms of the statute, the Government

must rely on Rojas-Luna’s 2006 removal in order to increase the maximum

penalty range to twenty years. The question remains, then, whether the 2006

removal is a fact that must be proven beyond a reasonable doubt to a jury or if

it may be found by the district judge at sentencing. 

In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme

Court held that a defendant’s prior conviction under § 1326(b)(2) was only a
No. 07-40016

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sentencing factor that did not need to be described in an indictment. Id. at 226-

27. The Government urges us to adopt the reasoning of Almendarez-Torres here

and hold that a prior removal under § 1326(b)(2) is likewise only a sentencing

factor and thus does not need to be proven to a jury. Rojas-Luna contends that

this court mustlimitthe holding of Almendarez-Torres to prior convictions alone.

Our review of Supreme Court precedent following Almendarez-Torres

demonstrates that, although Almendarez-Torres remains good law, the Supreme

Court has shown a reluctance to expand Almendarez-Torres’s holding to any fact

other than a prior conviction. For example, in Jones v. United States, the Court

held that provisions in a carjacking statute that provided for higher penalties in

cases involving serious bodily injury or death were elements of the offense itself,

not sentencing factors. 526 U.S. 227, 229 (1999). Similarly, in Apprendi, the

Court determined that a law providing for higher penalties if a crime was

racially motivated required a jury to find racial motivation beyond a reasonable

doubt. 530 U.S. at 468-69, 497.

In both Jones and Apprendi, the Court noted the unique nature of its

holding in Almendarez-Torres. The Jones Court discussed Almendarez-Torres’s

focus on recidivism and reasoned that reliance upon prior convictions

(recidivism) was appropriate because a prior conviction must be obtained

through procedures that satisfy the constitutional guarantees of fair notice,

reasonable doubt, and a jury trial. 526 U.S. at 248-49. In Apprendi, the Court

distinguished Almendarez-Torres as “at best an exceptional departure” from

prior law concerning what must be proven to a jury. Apprendi, 530 U.S. at 487.

Thus, neither Jones nor Apprendi counsels us to expand Almendarez-Torres

beyond its current holding.

Perhaps the most significant statement by the Supreme Court on this

issue comes from Apprendi, where the Court stated that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a crime beyond the
No. 07-40016

6

prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.” 530 U.S. at 490. It is thus clear that the Supreme Court

will not countenance any expansion of Almendarez-Torres. This language also

puts to rest the Government’s argument that the reasoning of Jones and

Apprendi applies only to facts that are part of the commission of the crime itself,

such as injury to the victim or the defendant’s racial motivation for the crime.

While a prior conviction does not typically relate to the commission of a crime,

it does not follow that any fact unrelated to the crime itself is exempt from the

constitutional protection of a jury trial. The Supreme Court’s use of the phrase

“any fact that increases a penalty” admits for no distinction between those facts

that are related to the crime and those that are not.

The Government’s argument that we treat a prior removal as addressing

the same recidivism concerns as a prior conviction is also unavailing. As noted

above, one of the reasons the Supreme Court has countenanced the use of a prior

conviction to enhance a sentence is that a prior conviction is the product of

procedures that encompass the constitutional guarantees of fair notice,

reasonable doubt, and a jury. Jones, 526 U.S. at 249. Removals, on the other

hand, are not subject to the same constitutional requirements. See Carlson v.

Landon, 342 U.S. 524, 537 (1952) (“Deportation is not a criminal proceeding . . .

No jury sits. No judicial review is guaranteed by the Constitution.”); United

States v. Benitez-Villafuerte, 186 F.3d 651, 657 (5th Cir. 1999) (“A deportation

hearing is a civil, not a criminal, action . . . As such, the full range of

constitutional protections available to a defendant in a criminal case are not

afforded an alien in a deportation proceeding.”). Consequently, while a court

may use a prior conviction with the knowledge that the defendant was given

multiple constitutional protections, the same cannot be said for prior removals.

In sum, the Supreme Court has clearly indicated that Almendarez-Torres

is limited to prior convictions and that any other fact used to increase a sentence
No. 07-40016

2 To be clear, this ruling only applies when the Government seeks to use a removal

under § 1326(b)(2) that is different than the removal used to obtain the conviction under

§ 1326(a). Had Rojas-Luna admitted to his 2006 removal or had it been proven to a jury

beyond a reasonable doubt, the district court would have been justified in relying on the 2006

removal to enhance Rojas-Luna’s sentence.

7

beyond a statutory maximum must be proven to a jury. Therefore, the district

court in this case erred in finding the fact of Rojas-Luna’s 2006 removal for

purposes of increasing his sentence under § 1326(b)(2) beyond the statutory

maximum.2 Further, in light of the above precedent, this error was clear and

obvious, satisfying the firsttwo elements ofthe plain error standard. We are not

alone in this holding, as the Ninth Circuit has recently considered this issue and

reached the same conclusion on materially indistinguishable facts. United

States v. Covian-Sandoval, 462 F.3d 1090, 1096-99 (9th Cir. 2006), cert. denied,

127 S. Ct. 1866 (2007) (holding thatit was plainly erroneous for the district court

to find the fact of a subsequent removal for purposes of the § 1326(b)(2)

enhancement when the defendant did not admit to the subsequent removal at

the plea colloquy).

Our inquiry does not end there, however. Having determined that the

district court plainly erred in using Rojas-Luna’s 2006 removal to enhance his

sentence under § 1326(b)(2), we must now decide whether Rojas-Luna has shown

that the error affected his substantial rights. McCrimmon, 443 F.3d at 458. An

error affects a defendant’s substantial rights when the error “affected the

outcome of the district court proceedings.” United States v. Palmer, 456 F.3d

484, 491 (5th Cir. 2006) (internal quotation marks omitted). It is clear here that

the error affected the outcome of the proceedings, as use of Rojas-Luna’s 2006

removal permitted the district court to give him a sentence above the otherwiseapplicable statutory maximum oftwo years. See id. (holding that error resulting

in additional sixty months’ sentence affected defendant’s substantial rights).
No. 07-40016

8

The Government urges us to follow the reasoning used in CovianSandoval, in which the Ninth Circuit determined that the erroneous use of a

prior removal to increase a sentence under § 1326(b)(2) did not affect the

defendant’s substantial rights. 462 F.3d at 1098-99. The Ninth Circuit’s

decision, however, was based on its precedent in United States v. Minore that

adopted a “more stringent” approach to the substantial rights analysis. 292 F.3d

1109, 1122 (9th Cir. 2002) (cited by Covian-Sandoval, 462 F.3d at 1098). Under

the Ninth Circuit’s approach in Minore, a defendant is required to raise

reasonable doubt that a rational jury would have found him guilty of the

sentencing element absent the constitutional error before a court may conclude

that the defendant’s substantial rights were affected. Id. at 1121-23 (rejecting

the “less stringent” approach that simply asks if the defendant received a greater

sentence than would have been permissible in light of the jury’s findings). Thus,

in Covian-Sandoval, because the defendant could not raise reasonable doubt as

to his prior removal, the court found no violation of substantial rights. CovianSandoval, 462 F.3d at 1098-99.

Our circuit has never adopted the reasonable doubt test as articulated in

Minore, but instead has consistently held that a defendant may show that his

substantial rights were affected simply by demonstrating that the outcome of the

proceedings would have been different absent the error. Palmer, 456 F.3d at

491; McCrimmon, 443 F.3d at 463. Given that Rojas-Luna received a sentence

of seventy-three months in prison when, absent constitutional error, his sentence

would have been a maximum of two years, we have little difficulty in concluding

that Rojas-Luna’s substantial rights were affect.

As Rojas-Luna has satisfied the first three prongs of the plain error

analysis, it remains for us to determine whether the error seriously affected the

fairness, integrity, or public reputation of the judicial proceedings and, thus,

warrants remediation. United States v. Puckett, 505 F.3d 377, 384 (5th Cir.
No. 07-40016

3 Because we have ruled that Rojas-Luna is not subject to the sentencing enhancement

under § 1326(b)(2), we need not address Rojas-Luna’s argumentthat use of his 2003 conviction

under § 1326(b)(2) is unconstitutional, although we note that such an argument is foreclosed

under our precedent. See United States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006) (per

curiam). 

9

2007). In United States v. Cotton, 535 U.S. 625, 627-29 (2002), the Supreme

Court considered whether the plain error inquiry was satisfied when a district

court increased a defendant’s sentence based on conduct involving a certain

quantity of drugs when the amount of drugs was not included in the indictment

or found by the jury. While holding that there was plain error, the Court

determined that there was no basis for concluding that the error seriously

affected the fairness, integrity, or public reputation of judicial proceedings

because the evidence of the drug amount that was presented at trial was

“overwhelming” and “essentially uncontroverted.” Id. at 633 (internal quotation

marks omitted).

In the present case, there was no trial at which evidence of Rojas-Luna’s

2006 removal might have been presented; there was only a plea colloquy at

which the Government failed to set forth any evidence of the 2006 removal. The

unsupported statement in Rojas-Luna’s PSR that he was removed in 2006 is not

“overwhelming” evidence of the fact of his removal, particularly in light of the

fact that there is no evidence in the record that Rojas-Luna ever agreed to the

accuracy of the PSR. As a result, the plain error of the district court seriously

affected the fairness and integrity of the proceedings, and, in the exercise of our

discretion, we believe relief is warranted. Therefore, we VACATE Rojas-Luna’s

sentence and REMAND this case for re-sentencing in conformance with this

opinion.3
No. 07-40016

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IV. CONCLUSION

Because use of Rojas-Luna’s 2006 removalto increase his sentence beyond

the statutory maximum was plainly erroneous, we VACATE his sentence and

REMAND this case for re-sentencing consistent with this opinion.

VACATED and REMANDED.