United States v. Lopez — Fifth Circuit affirmed illegal-reentry conviction and sentence but ordered judgment corrected

Case
United States of America v. Pedro Garcia Lopez
Court
U.S. Court of Appeals for the Fifth Circuit
Judge
Jennifer Walker Elrod (George W. Bush, 2007); Cory T. Wilson (Donald Trump, 2020); Dana M. Douglas (Joseph R. Biden Jr., 2022)
Date Decided
October 29, 2026
Docket No.
26-10090
Topics
Illegal Reentry, Sentencing, Plain Error, Supervised Release
Source
Read the full opinion

Background

Pedro Garcia Lopez was convicted of illegally reentering the United States in violation of 8 U.S.C. § 1326 and received a within-guidelines sentence. The district court entered judgment under § 1326(a) and the enhanced penalty provision in § 1326(b)(2), which applies when removal follows an aggravated-felony conviction.

On appeal, Lopez argued for the first time that § 1326(b)(2) did not apply because his prior offenses resulted in deferred-adjudication probation and therefore were not aggravated-felony convictions sustained before his removal. He also challenged the term of supervised release as insufficiently individualized and argued that § 1326(b)’s recidivism enhancement is unconstitutional.

The Court’s Holding

The Fifth Circuit agreed that Lopez had not sustained an aggravated-felony conviction before removal and that the district court therefore erred by citing § 1326(b)(2). But because Lopez raised the issue for the first time on appeal and failed to show that the error affected his substantial rights, he could not obtain reversal under plain-error review. The court affirmed his conviction and sentence while remanding for the written judgment to be reformed to reflect conviction and sentencing under § 1326(b)(1).

The court also upheld the supervised-release term. It found that the district court made an individualized assessment based on appropriate 18 U.S.C. § 3553(a) factors and Lopez’s criminal history, concluding that supervision was needed to protect the public and provide additional deterrence. The term was within the range authorized by 18 U.S.C. § 3583(b).

Finally, the court held that circuit precedent foreclosed Lopez’s constitutional challenge to § 1326(b)’s recidivism enhancement.

Key Takeaways

  • Deferred-adjudication probation did not qualify as a prior aggravated-felony conviction supporting the § 1326(b)(2) enhancement.
  • The incorrect statutory subsection did not warrant reversal on plain-error review because Lopez failed to show an effect on his substantial rights.
  • The Fifth Circuit affirmed the conviction, sentence, and supervised-release term but remanded to reform the judgment under § 1326(b)(1).

Why It Matters

The decision distinguishes between a sentencing error requiring reversal and an inaccurate statutory citation that can be corrected through reformation of the judgment. Even though § 1326(b)(2) was inapplicable, Lopez’s failure to establish prejudice meant his conviction and sentence remained intact.

The opinion also confirms that a supervised-release term in an illegal-reentry case may stand when the district court ties it to the defendant’s criminal history, public protection, and added deterrence.

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