United States v. Alejandro Calzada Vega

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 16-41663

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

ALEJANDRO CALZADA VEGA, also known as Alejandro Vegas,

Defendant - Appellant

Appeal from the United States District Court for the
Southern District of Texas

Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
In 2016, Alejandro Calzada Vega pleaded guilty to one count of illegal
reentry after deportation in violation of 8 U.S.C. § 1326. Vega’s presentence
report determined that his 2004 Michigan conviction for home invasion in the
second degree qualified as an “aggravated felony” under 8 U.S.C.
§ 1101(a)(43)(F) (defining “aggravated felony” as a “crime of violence” under 18
U.S.C. § 16). Therefore, using the 2015 United States Sentencing Guidelines,
the PSR applied an eight-level sentencing enhancement under U.S.S.G. §
2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2, cmt. n.3(A) (“For purposes of subsection
(b)(1)(C), ‘aggravated felony’ has the meaning given that term in . . . 8 U.S.C.
§ 1101(a)(43) . . . without regard to the date of conviction for the aggravated
United States Court of Appeals
Fifth Circuit
FILED
June 4, 2020

Lyle W. Cayce
Clerk
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felony.”). Based on the same 2004 conviction, the PSR also determined that
Vega was subject to the 20-year statutory maximum sentence in 8 U.S.C.
§ 1326(b)(2), which increases the maximum sentence for an illegal reentry
defendant “whose removal was subsequent to a conviction for commission of
an aggravated felony.”
At sentencing on December 7, 2016, the district court overruled Vega’s
objections to the PSR’s classification of his 2004 conviction and sentenced him
to a within-guidelines sentence of 26 months of imprisonment, followed by a
three-year term of supervised release. The district court entered judgment
under 8 U.S.C. §§ 1326(a) and 1326(b)(2).
Vega filed a notice of appeal in December 2016. In his initial brief, he
argued that his 2004 conviction did not have an element of force, so it therefore
does not qualify as a “crime of violence” under 18 U.S.C. § 16(a). He also argued
that § 16(b) is unconstitutionally vague, though he acknowledged that this
argument was foreclosed by Supreme Court precedent at the time that he filed
his brief. Because he maintained that his 2004 conviction did not qualify as a
“crime of violence,” he argued that the district court erred when it found that
he had previously been convicted of an “aggravated felony”—a conclusion that
led to his eight-level sentence enhancement and the district court’s entry of
judgment under § 1326(b)(2) instead of § 1326(b)(1).
During the pendency of this appeal, the court twice suspended briefing
to await guidance from the Supreme Court in two related cases: Sessions v.
Dimaya, 138 S. Ct. 1204 (2018), and United States v. Herrold, 139 S. Ct. 2712
(2018) (mem.). In late 2017, Vega was released from custody and deported. His
three-year period of supervised release will not expire until November 20,
2020.
Both parties now agree that the merits of Vega’s appeal are foreclosed
by the Supreme Court’s decision in Quarles v. United States, 139 S. Ct. 1872
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(2019). The only issue in dispute is whether Vega’s release from custody
mooted his challenge to the PSR’s calculation of his sentencing guidelines—a
threshold jurisdictional issue.
Applying the binding precedent of United States v. Lares-Meraz, 452
F.3d 352 (5th Cir. 2006), we hold that Vega’s appeal of the eight-level sentence
enhancement is not moot because he remains subject to a term of supervised
release. We therefore reach the merits of his appeal, and we AFFIRM.
I.
In the district court, Vega objected to his guidelines enhancement under
§ 2L1.2(b)(1)(C), but he did not specifically object to the district court’s entry of
judgment under § 1326(b)(2). Nevertheless, because his objection to the
sentencing enhancement relied on the same argument that he now makes
about the application of § 1326(b)(2), that objection was sufficient to preserve
his challenge to the statutory basis of his conviction. See United States v. Valle-
Ramirez, 908 F.3d 981, 984 (5th Cir. 2018). Like the defendant in Valle-
Ramirez, Vega’s challenges are based on his argument that his 2004 conviction
does not qualify as an “aggravated felony.” See Id. Accordingly, we review the
district court’s characterization of his 2004 conviction de novo. See id.; Patel v.
Mukasey, 526 F.3d 800, 802 (5th Cir. 2008).
“Whether an appeal is moot is a jurisdictional matter, since it implicates
the Article III requirement that there be a live case or controversy.” United
States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (en banc) (quoting
Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987)). We review the
question of mootness de novo, raising the issue sua sponte if necessary. Lares-
Meraz, 452 F.3d at 355. In order to maintain jurisdiction, the court must have
before it an actual case or controversy at all stages of the judicial proceedings.
See Spencer v. Kemna, 523 U.S. 1, 7 (1998). “A case becomes moot only when it
is impossible for a court to grant any effectual relief whatever to the prevailing
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party.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012)
(internal quotation marks and citation omitted). “[A]s long as the parties have
a concrete interest, however small, in the outcome of the litigation, the case is
not moot.” Id. at 307–08 (alteration in original) (quoting Ellis v. Railway
Clerks, 466 U.S. 435, 442 (1984)).
II.
Vega advances two challenges to his sentence. First, he argues that the
district court erred when it applied an eight-level sentencing enhancement
based on its conclusion that Vega had previously been convicted of an
aggravated felony. Second, he argues that the district court erred when it
entered judgment under § 1326(b)(2).
The parties agree that Vega’s release from prison does not moot his
statutory challenge. Regardless of Vega’s custody status, “whether his
judgment reflects a conviction under § 1326(b)(1) or (b)(2) could have
consequences.” United States v. Valle-Ramirez, 908 F.3d 981, 984 n.4 (5th Cir.
2018). Because a (b)(2) conviction carries its own collateral consequences, we
have held that a defendant may challenge the statutory basis of his judgment
of conviction even when he is no longer in custody. Id.; see also United States
v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017).
However, the parties dispute whether Vega’s release from custody and
deportation moot his challenge to his sentencing enhancement. A live case or
controversy is necessary to invoke federal jurisdiction. See Heredia-Holguin,
823 F.3d at 340. Thus, the court must evaluate mootness on a claim-by-claim
basis to determine whether each claim satisfies the constitutional
requirements for Article III jurisdiction. See In re Pac. Lumber Co., 584 F.3d
229, 251 (5th Cir. 2009) (evaluating mootness for each claim); see also In re
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Scopac, 624 F.3d 274, 282 (5th Cir. 2010) (same).
1
Though Vega remains
subject to an active term of supervised release, he does not argue that the
district court erred when it imposed a three-year period of supervised release;
instead, his appeal of the sentencing enhancement challenges the term of
imprisonment imposed by the district court.
In Lares-Meraz, we held that a defendant’s appeal of his sentence is not
moot as long as he remains subject to an active period of supervised release.
452 F.3d at 355. Like Vega, the defendant in Lares-Meraz had been released
from custody and deported. Id. at 353. At the time of his direct appeal of his
sentence, he remained subject to a three-year term of supervised release. Id.
We held that Lares-Meraz’s “subjection to the terms of supervised release
satisfy an ongoing consequence that is a sufficient legal interest to support
Article III’s case or controversy requirement.” Id. at 355. If the district court
determined that he had been improperly sentenced, it would “have the
authority to modify [the] conditions of supervised release . . . or the authority
to terminate obligations of supervised release.” Id.; see also United States v.
Johnson, 529 U.S. 53, 60 (2000) (noting that the trial court may modify
conditions of supervised release or terminate supervised release obligations if
certain conditions are met). The possibility of relief thus demonstrated that
Lares-Meraz’s claim was not moot, even though his appeal did not challenge
the term of supervised release itself. In another published case, Johnson v.
Pettiford, 442 F.3d 917 (5th Cir. 2006), we echoed the reasoning of Lares-
Meraz, holding that a defendant’s release from custody did not moot his habeas
petition under 28 U.S.C. § 2241 because there remained a “possibility that the

1
Therefore, to the extent that Vega argues that the court may avoid deciding the
mootness question because his claims fail on the merits, we disagree.
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district court may alter [his] period of supervised release . . . if it determines
that he has served excess prison time.” Id. at 918.
2

Though the government does not acknowledge the published authority
of Lares-Meraz, it argues that our 2016 en banc decision in Heredia-Holguin
requires us to find that Vega’s appeal is now moot. In Heredia-Holguin, we
held that a defendant’s deportation and release from custody did not moot his
challenge to his term of supervised release. 823 F.3d at 343. Unlike Vega, the
defendant in Heredia-Holguin challenged the imposition of supervised release
itself, arguing that the district court erred when it sentenced him to three years
of supervised release. Id. at 339–40. We acknowledged this distinction in a
footnote, recognizing that the out-of-circuit cases that have come to the
opposite conclusion have done so in a different context: where the defendant
“had completed his term of imprisonment and been deported, yet was still
trying to challenge the term of imprisonment on the ground that the term of
supervised release had not yet expired.” Id. at 342 & n.3. Yet we also cited a
Sixth Circuit case that matched the facts of Vega’s appeal, explaining that the
Sixth Circuit had “reached the same conclusion” as the en banc court. Id. at
343 n.5. In that case, United States v. Solano-Rosales, 781 F.3d 345, 355 (6th
Cir. 2015), the Sixth Circuit held that an appeal was not moot if the defendant
remained on supervised release, even though he did not challenge the
supervised release term and instead challenged only the “completed custodial
portion of his or her sentence.”
3

2
The government contends that this rule conflicts with the Supreme Court’s decisions
in Johnson, 529 U.S. at 59–60, and Spencer, 523 U.S. at 14–16. In fact, Lares-Meraz was
decided well after both of those cases, and the panel’s decision relied on those cases to support
its mootness analysis. 452 F.3d at 355.
3
Thus, while the government is correct that there is a circuit split on this issue, its
arguments do not alter the fact that Lares-Meraz, a published case of our court, binds this
panel. See, e.g., Lee v. Frozen Food Exp., Inc., 592 F.2d 271, 272 (5th Cir. 1979) (“[T]his panel
of the Court is bound by the decisions of prior panels.”).
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In Heredia-Holguin, we used expansive language to describe our holding,
explaining that “our court has the authority to grant relief as long as the term
of the supervised release has not expired.” 823 F.3d at 343. And though we
cited Lares-Meraz repeatedly, we never suggested that we disagreed with the
more specific holding in that case: that a defendant may challenge his term of
imprisonment as long as he remains under an active term of supervised
release. See id. at 339 & n.1. To the contrary, our decision in Heredia-Holguin
expressly overturned a decision that was in conflict with Lares-Meraz, further
suggesting that the en banc court’s holding was consistent with—and did not
disturb—the rule of law in Lares-Meraz. See id.
Since Heredia-Holguin, several unpublished decisions of this court have
found that Lares-Meraz remains good law. In United States v. Solano-
Hernandez, 761 F. App’x 276, 280 (5th Cir. 2019), we cited Heredia-Holguin,
Lares-Meraz, and Johnson to hold that a defendant’s appeal of his sentence
was not mooted by his deportation and release from custody because he
continued to remain “subject to a three-year term of supervised release” at the
time of his appeal. We reached the same conclusion in several other cases that
have addressed the identical issue. See United States v. Taylor, No. 18-60425,
2020 WL 1487705, at *2 (5th Cir. Mar. 24, 2020); Greene v. Underwood, 939
F.3d 628, 628 (5th Cir. 2019) (reaching same decision in context of a habeas
petition); United States v. Villarreal-Garcia, 761 F. App’x 425, 427 (5th Cir.
2019) (relying on Pettiford and Lares-Meraz). Though another set of
unpublished cases has reached the opposite conclusion, those cases are
unpersuasive because they fail to cite or engage with the binding authority of
Lares-Meraz. See, e.g., United States v. Bacio-Gonzales, 713 F. App’x 357, 358
(5th Cir. 2018); United States v. Chavez-Martinez, 669 F. App’x 268, 268 (5th
Cir. 2016); United States v. Beltran, 668 F. App’x 100, 100 (5th Cir. 2016).
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We agree with the decisions of our court that have held that Lares-Meraz
continues to govern the mootness analysis for a defendant in Vega’s position.
The government argues that Heredia-Holguin casts doubt upon the decision
reached in Lares-Meraz. See, e.g., Heredia-Holguin, 823 F.3d at 343 (holding
that “where a defendant has been deported, his appeal of a term of an existing
supervised release is not mooted solely by that deportation” (emphasis added)).
But an en banc decision cannot overturn a binding published panel decision
unless it does so clearly. See, e.g., Carter v. S. Cent. Bell, 912 F.2d 832, 840 (5th
Cir. 1990). Even if we believe a prior panel’s decision is flawed, we are bound
to abide by it “unless that interpretation is irreconcilable with” a later decision
of the en banc court. Id.; cf. Gahagan v. U.S. Citizenship & Imm. Servs., 911
F.3d 298, 302 (5th Cir. 2018) (“For a Supreme Court decision to override a Fifth
Circuit case, the decision must unequivocally overrule prior precedent; mere
illumination of a case is insufficient.” (alteration omitted) (quoting United
States v. Petras, 879 F.3d 155, 164 (5th Cir. 2018)). The fact that the en banc
decision in Heredia-Holguin confined itself to the facts before it does not mean
that it overturned—either explicitly or implicitly—the analogous but distinct
holding of Lares-Meraz. Published decisions of this court remain binding
“absent an intervening change in the law, such as by a statutory amendment,
or the Supreme Court, or [the] en banc court.” United States v. Traxler, 764
F.3d 486, 489 (5th Cir. 2014) (quoting Jacobs v. Nat’l Drug Intelligence Ctr.,
548 F.3d 375, 378 (5th Cir. 2008)).
Thus, because Heredia-Holguin neither implicitly nor explicitly
overruled Lares-Meraz, we conclude that Vega’s release from custody did not
moot his appeal of his sentencing enhancement.
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III.
Because Vega’s appeal is not moot, we must reach the merits of his
claims. As both parties agree, Vega’s challenges to his sentencing enhancement
and to the statutory basis of his conviction both fail as a matter of law.
The district court applied an eight-level sentencing enhancement and
entered judgment under § 1326(b)(2) because it concluded that Vega had
previously been convicted of an “aggravated felony.” To determine whether a
prior conviction qualifies as an aggravated felony, we employ the categorical
approach, examining “‘the elements of the offense, rather than the facts
underlying the conviction or the defendant’s actual conduct, to determine
whether’ the enhancement applies.” United States v. Teran-Salas, 767 F.3d
453, 458 (5th Cir. 2014) (quoting United States v. Carrasco-Tercero, 745 F.3d
192, 195 (5th Cir. 2014)).
The same definition of “aggravated felony” applies to the statute and the
sentencing guidelines. See 8 U.S.C. § 1101(a)(43); U.S.S.G. § 2L1.2 cmt. n.3(A).
The district court found that Vega’s 2004 conviction was an “aggravated felony”
based on one of the statutory definitions: “a crime of violence (as defined in
section 16 of title 18 . . . ) for which the term of imprisonment [is] at least one
year.” 8 U.S.C. § 1101(a)(43)(F). But there are several other definitions of
“aggravated felony,” including “a . . . burglary offense for which the term of
imprisonment [is] at least one year.” Id. § 1101(a)(43)(G). Though the district
court used the definition in § 1101(a)(43)(F), we may affirm “on any basis
supported by the record.” United States v. Roussel, 705 F.3d 184, 195 (5th Cir.
2013).
In Quarles, the Supreme Court held that Michigan home invasion in the
third degree is a generic burglary offense because it criminalizes the “unlawful
or unprivileged entry into, or remaining in, a building or structure, with intent
to commit a crime.” 139 S. Ct. at 1875 (quoting Taylor v. United States, 495
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U.S. 575, 599 (1990)); see also United States v. Herrold, 941 F.3d 173, 177 (5th
Cir. 2019) (en banc) (applying Quarles in the context of Texas’s burglary
statute). Vega was convicted of the more serious offense of Michigan home
invasion in the second degree, which applies when a defendant commits or
intends to commit “a felony, larceny, or assault in the dwelling.” Mich. Comp.
Laws Ann. § 750.110a(3). Both parties agree that this distinction makes no
difference to the “aggravated felony” analysis; because a nearly identical
offense was deemed a generic burglary offense in Quarles, Vega’s 2004
Michigan conviction satisfies the statutory definition of “aggravated felony”
under § 1101(a)(43)(G). Moreover, Quarles’s indeterminate sentence of six
months to 15 years satisfies the statutory requirement that the burglary
offense must result in a term of imprisonment greater than one year. See
Pichardo v. INS, 104 F.3d 756, 759 (5th Cir. 1997) (construing an
indeterminate sentence as a sentence for the maximum term imposed).
Accordingly, Vega’s 2004 conviction qualifies as an “aggravated felony,”
thus justifying the district court’s sentencing enhancement and the entry of
judgment under § 1326(b)(2).
4
We therefore AFFIRM the district court’s
sentence and judgment.

4
As Vega acknowledges, his vagueness challenge to the Sentencing Guidelines’
definition of “crime of violence” fails for the separate and distinct reason that “[t]he
Guidelines are not subject to vagueness challenges.” United States v. Godoy, 890 F.3d 531,
537 (5th Cir. 2018).
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