United States v. Barrieta-Barrera ( 2022 )

Case: 21-10879 Document: 00516253662 Page: 1 Date Filed: 03/25/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 21-10879 March 25, 2022
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Juan Jesus Barrieta-Barrera,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-23-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:*
Juan Jesus Barrieta-Barrera appeals his conviction and sentence for
illegal reentry after deportation following an aggravated felony conviction, in
violation of 8 U.S.C. § 1326(a) and (b)(2). Barrieta-Barrera contends that the
district court erred in sentencing him under § 1326(b)(2) because his prior
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-10879 Document: 00516253662 Page: 2 Date Filed: 03/25/2022
No. 21-10879
Minnesota conviction for criminal sexual contact in the third degree does not
constitute an aggravated felony after Mathis v. United States, 136 S. Ct. 2243(2016), and as a result, his two prior illegal reentry offenses do not count as
aggravated felonies.
As the Government asserts and as Barrieta-Barrera concedes, the sole
issue raised on appeal is foreclosed by United States v. Gamboa-Garcia, 620
F.3d 546, 548-49 (5th Cir. 2010), and United States v. Piedra-Morales, 843
F.3d 623, 624-25 (5th Cir. 2016). Because the Government’s position “is
clearly right as a matter of law so that there can be no substantial question as
to the outcome of the case,” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969), summary affirmance is proper.
Accordingly, the motion for summary affirmance is GRANTED, and
the judgments of the district court are AFFIRMED. The Government’s
alternative motion for an extension of time is DENIED.
2