UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4554

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, 

a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin 

Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,

Defendant - Appellant.

No. 14-4781

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICARDO AUGUSTIN LOPEZ ARANDA, a/k/a Ricardo Augustine, 

a/k/a Ricardo Lopez, a/k/a Ricardo Aranda, a/k/a Agustin 

Aranda, a/k/a Lopez Aranda, a/k/a Recardo Lopez,

Defendant - Appellant.

Appeals from the United States District Court for the Western 

District of Virginia, at Roanoke. Glen E. Conrad, Chief

District Judge. (7:13-cr-00026-GEC-1; 7:13-cr-00052-GEC-1)

Submitted: April 30, 2015 Decided: May 20, 2015
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Before NIEMEYER, AGEE, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Samuel A. Walker, Orlando, Florida, for Appellant. Anthony P.

Giorno, Acting United States Attorney, C. Patrick Hogeboom, III, 

Assistant United States Attorney, Roanoke, Virginia; Leslie R. 

Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy 

Assistant Attorney General, Thomas E. Booth, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Ricardo Augustin Lopez Aranda pled guilty to one count of 

being an alien found in the United States after removal

following conviction of an aggravated felony in violation of 8 

U.S.C. § 1326(a), (b)(2) (2012). He was sentenced to 27 months’ 

imprisonment. At the sentencing hearing, the district court

also found Aranda guilty of violating the terms of supervised 

release imposed pursuant to a 2009 conviction for being found in 

the United States after prior removal after conviction of a 

felony. The court sentenced Aranda to 24 months’ imprisonment 

on the revocation, to run consecutively to the 27-month term.

The court also imposed a three-year term of supervised release. 

Aranda appeals. Finding no error, we affirm.

Aranda first contends that the “found in” offense in 

§ 1326(a)(2) is an unconstitutional status offense because it

does not require an “actus reus” and thus violates the Eighth 

Amendment in light of Robinson v. California, 370 U.S. 660 

(1962). Because Aranda did not raise this issue in the district 

court, we review the claim for plain error.1 Puckett v. United 

 1 The government notes that a defendant’s guilty plea 

normally waves antecedent defects. See Tollett v. Henderson, 

411 U.S. 258 (1973). Because Aranda contends that § 1326(a)(2) 

facially violates the Eighth Amendment, the government concedes 

that Tollett does not bar this Court’s review. See Menna v. New 

York, 423 U.S. 61 (1975). For this reason, the government 

(Continued)
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States, 556 U.S. 129, 134-35 (2009). To establish plain error, 

Aranda must demonstrate that (1) an error occurred, (2) the 

error was plain, and (3) the error affected his substantial 

rights. United States v. Olano, 507 U.S. 725, 732 (1993). Even 

if Aranda meets these requirements, the Court will correct the 

error only if it “seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” Henderson v. United 

States, 133 S. Ct. 1121, 1126-27 (2013) (alteration and internal 

quotation marks omitted). 

Courts of appeals that have addressed the claim that 

§ 1326(a)(2) is an unconstitutional status crime have held that 

the “found in” offense in that section is not an 

unconstitutional status crime under Robinson because 

§ 1326(a)(2) necessarily requires that a defendant commit the 

act of reentering the United States without permission within 

five years of being deported. See United States v. ToviasMarroquin, 218 F.3d 455, 457 (5th Cir. 2000); United States v. 

Ayala, 35 F.3d 423, 426 (9th Cir. 1994). We likewise find this 

claim to be without merit.2 We further reject Aranda’s claim 

 

declines to invoke the appeal waiver provision in Aranda’s plea 

agreement. 

2 As the Attorney General notes, Aranda admitted at his 

revocation hearing that he illegally reentered the United States 

after being removed following his 2009 conviction.
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that the statute is unconstitutionally vague. See id. at 424-

25; United States v. Meraz-Valeta, 26 F.3d 992, 997 (10th Cir. 

1994), overruled on other grounds by United States v. AguirreTello, 353 F.3d 1199 (10th Cir. 2004) (en banc); United States 

v. Whittaker, 999 F.2d 38, 42-43 (2d Cir. 1993).

Next, Aranda asserts that trial counsel was ineffective 

under the Sixth Amendment by failing to raise the above 

constitutional claims. Unless an attorney’s ineffectiveness 

conclusively appears on the face of the record, ineffective 

assistance claims are not generally addressed on direct appeal. 

United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008). 

Instead, such claims should be raised in a motion brought 

pursuant to 28 U.S.C. § 2255 (2012), in order to permit

sufficient development of the record. United States v. 

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Accordingly, 

because the record does not conclusively establish ineffective 

assistance of counsel, Aranda’s claim should be raised, if at 

all, in a § 2255 motion.

Finally, Aranda asserts that the district court’s 24-month 

sentence imposed for his supervised release violations amounts 

to cruel and unusual punishment under the Eighth Amendment where 

the criminal statute for the underlying conviction does not 

require an actus reus. In 2009, Aranda was sentenced in federal 

district court in Texas pursuant to his first conviction under 
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§ 1326. The sentence included a term of supervised release 

which he was serving and violated by being subsequently 

convicted of forgery and reentering the United States again 

illegally and failing to report to probation. Aranda’s 

challenge to § 1326(a)(2) in this context is in effect a 

collateral attack on his 2009 conviction. Such argument may 

only be properly raised on direct appeal of that conviction or 

in a habeas corpus proceeding under § 2255. In any event, the 

constitutional claim is meritless, and Aranda sets forth no 

other challenges to the supervised release proceeding, the 

court’s findings, or his sentence.

We accordingly affirm the district court’s judgments. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED