United States Court of Appeals

for the Fifth Circuit

No. 20-10679

United States of America, 

Plaintiff—Appellee,

versus

Juan Trujillo, 

Defendant—Appellant.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CR-151-1

Before King, Dennis, and Ho, Circuit Judges.

James C. Ho, Circuit Judge:

If a defendant is convicted of unlawful reentry into the United States 

after previously being removed from our country, federal law imposes a 

statutory maximum sentence of twenty years if his prior removal was 

subsequent to a conviction for an “aggravated felony.” 8 U.S.C. 

§ 1326(b)(2). The term “aggravated felony” includes “a crime of violence” 

as that term has been defined in 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F).

We hold that Texas’s intoxication manslaughter statute, Tex.

Penal Code § 49.08(a), does not constitute a “crime of violence” under 

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2021

Lyle W. Cayce

Clerk

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18 U.S.C. § 16. As a result, the district court here erred when it convicted 

and sentenced Juan Trujillo under 8 U.S.C. § 1326(b)(2) based on his prior 

conviction under Texas Penal Code § 49.08(a). But as it turns out, the error 

did not ultimately affect his sentence. So there is no need to remand for 

resentencing. Accordingly, we reform the judgment to correct the error 

under 8 U.S.C. § 1326(b)(2) and affirm the sentence as reformed.

I.

In 1995, Trujillo, a citizen of Mexico, was convicted of intoxication 

manslaughter under Texas Penal Code § 49.08(a), and sentenced to ten years 

in prison. He was later deported upon his release, but he subsequently 

returned to the United States. In 2008, he was arrested for driving while 

intoxicated (DWI). He was deported a second time, but again later returned 

to the United States. In 2017, he was arrested for DWI again.

Trujillo pleaded guilty to DWI in state court and was sentenced to two 

years in prison. After his release, he was transferred to federal custody 

pursuant to an indictment for illegal reentry under 8 U.S.C. § 1326. The 

indictment informed Trujillo that he was subject to a statutory maximum of 

twenty years in prison under 8 U.S.C. § 1326(b)(2).

Trujillo pleaded guilty to illegal reentry. The presentence report 

(PSR) calculated a range of seventy to eighty-seven months under the U.S. 

Sentencing Guidelines. Like the indictment, the PSR also stated that he was 

subject to a statutory maximum sentence of twenty years. The PSR noted his 

1995 Texas conviction for intoxication manslaughter.

Trujillo did not file any written objections to the PSR and did not 

object to it at sentencing. The district court sentenced Trujillo to a withinGuidelines sentence of seventy-two months and two years of supervised 

release—well short of the twenty-year statutory maximum under 8 U.S.C. 

§ 1326(b)(2). Trujillo did not object to his sentence. He timely appealed.

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Because Trujillo did not object to the PSR’s conclusion that he was 

subject to judgment under § 1326(b)(2), we review the district court’s 

decision for plain error. See United States v. Castaneda-Lozoya, 812 F.3d 457, 

459 (5th Cir. 2016). To prevail on plain error review, Trujillo must identify 

(1) a forfeited error (2) that is clear or obvious, rather than subject to 

reasonable dispute, and (3) that affects his substantial rights. See Puckett v. 

United States, 556 U.S. 129, 135 (2009). If he satisfies these three 

requirements, we may correct the error at our discretion if it “seriously 

affect[s] the fairness, integrity, or public reputation of judicial proceedings.” 

Id. (quotations omitted).

II.

On appeal, Trujillo argues—and the Government concedes—that the 

district court erred by entering judgment under 8 U.S.C. § 1326(b)(2),

because his Texas intoxication manslaughter conviction does not qualify as a 

“crime of violence” under 18 U.S.C. § 16.

When a defendant is convicted of illegal reentry following his removal 

from the United States, and his prior removal followed a conviction for an 

“aggravated felony,” he is subject to a maximum sentence of twenty years. 

8 U.S.C. § 1326(b)(2). If his prior removal followed a conviction for a felony 

that does not qualify as an “aggravated felony,” however, he is subject to a 

maximum sentence of ten 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). (The Supreme Court 

held in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), that § 16(b) is 

unconstitutionally vague, so we apply only § 16(a) here.)

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Under Texas law, a person commits intoxication manslaughter if he 

(1) “operates a motor vehicle in a public place,” (2) “is intoxicated,” and (3) 

“by reason of that intoxication causes the death of another by accident or 

mistake.” Tex. Penal Code § 49.08(a).

As a matter of Supreme Court precedent, the Texas intoxication 

manslaughter statute does not qualify as a “crime of violence” under 18 

U.S.C. § 16(a). In Leocal v. Ashcroft, 543 U.S. 1 (2004), the Court observed 

that “[t]he critical aspect of § 16(a) is that a crime of violence is one involving 

the ‘use . . . of physical force against the person or property of another.’” Id. at 

9. That “key phrase in § 16(a) . . . most naturally suggests a higher degree of 

intent than negligent or merely accidental conduct.” Id. (emphasis added).

That conclusion confirms that the district court erred here. After all, 

the Texas intoxication manslaughter statute does not require a “higher 

degree of intent than negligent or merely accidental conduct.” Id. To the 

contrary, the statute specifically requires that the defendant cause the death 

of another “by accident or mistake.” Tex. Penal Code § 49.08(a). 

Accordingly, the Texas statute does not qualify as a “crime of violence”

under 18 U.S.C. § 16(a), as that term was authoritatively construed by the 

Court in Leocal.

So the district court was wrong to enter a judgment of conviction and 

sentence under 8 U.S.C. § 1326(b)(2). Indeed, the parties agree that the 

court should have sentenced Trujillo under 8 U.S.C. § 1326(b)(1), because 

he was convicted of a felony other than an aggravated felony, and therefore 

subjected him to a statutory maximum sentence of ten years rather than 

twenty.

Entering conviction based on § 1326(b)(2) rather than § 1326(b)(1) 

can have collateral consequences for the defendant, such as permanent 

inadmissibility to the United States. That’s because a conviction for 

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unlawful reentry following a prior conviction for an aggravated felony under 

§ 1326(b)(2) is itself an aggravated felony. See, e.g., United States v. OvalleGarcia, 868 F.3d 313, 314 (5th Cir. 2017). So we have reformed judgments 

when district courts have incorrectly entered convictions under § 1326(b)(2) 

rather than under § 1326(b)(1). See, e.g., 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 do so here as well.

III.

Trujillo asks us for more. He asks us to vacate his sentence and 

remand so that the district court can consider whether the misclassification 

of his conviction influenced its sentencing decision. We decline to do so.

To warrant vacatur, Trujillo must “prove [that] the error affected the 

outcome in the district court.” Mondragon-Santiago, 564 F.3d at 369. He 

must show that “the record indicate[s] the district court’s sentence was 

influenced by an incorrect understanding of the statutory maximum 

sentence.” Id.

There is no indication anywhere in the record that the sentence 

imposed here was influenced in any way by an incorrect understanding of the 

statutory maximum sentence. To the contrary, Trujillo concedes that the 

district court entered a sentence within the Guidelines range, and below the 

statutory maximum of § 1326(b)(1). Moreover, the district court did not even 

cite § 1326(b)(2) in its sentencing decision. Rather, the court focused instead 

on Trujillo’s repeated violations to justify his seventy-two month sentence.

We have no difficulty, then, concluding that the district court’s error 

concerning § 1326(b)(2) did not affect his sentence in any way.

Trujillo nevertheless suggests that we remand so that he can at least 

ask the district court whether it might have imposed a different sentence. But 

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it is Trujillo’s burden on appeal to demonstrate a reasonable probability of a 

different result on remand. See, e.g., United States v. Lavalais, 960 F.3d 180, 

186 (5th Cir. 2020) (defendant “has the burden to demonstrate that all four 

prongs of plain error review are met”). He cannot do so here. So remand is 

not warranted. We will not order remand simply because Trujillo hopes to 

create a better appellate record.

* * *

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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