United States v. Ballardo-Ramos ( 2022 )


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  • Case: 21-40306         Document: 00516194138       Page: 1    Date Filed: 02/07/2022
    United States Court of Appeals
    for the Fifth Circuit                             United States Court of Appeals
    Fifth Circuit
    FILED
    February 7, 2022
    No. 21-40306
    Lyle W. Cayce
    Summary Calendar                             Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Carlos Ballardo-Ramos,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 5:20-CR-2026-1
    Before King, Costa, and Ho, Circuit Judges.
    Per Curiam:*
    Carlos Ballardo-Ramos pled guilty to unlawfully reentering the United
    States.       The judgment lists his conviction as falling under 
    8 U.S.C. § 1326
    (b)(2), which is the offense for illegal reentry after having been
    convicted of an aggravated felony. The parties agree that the judgment must
    *
    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    opinion should not be published and is not precedent except under the limited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: 21-40306      Document: 00516194138            Page: 2   Date Filed: 02/07/2022
    No. 21-40306
    be corrected because Ballardo-Ramos’s Texas aggravated assault conviction
    no longer qualifies as an aggravated felony.
    The predicate assault offense for Ballardo-Ramos’s Texas conviction
    is assault by intentionally, knowingly, or recklessly causing bodily injury to
    another. Tex. Penal Code § 22.01(a)(1). This is the same Texas aggravated
    assault conviction, with a predicate offense that might involve reckless
    conduct, that we have already held no longer qualifies as an aggravated felony
    under Borden v. United States, 
    141 S. Ct. 1817
     (2021). See United States v.
    Gomez-Gomez, ---F.4th ----, 
    2022 WL 152160
    , at *2 (5th Cir. 2022). The
    judgment should thus list 
    8 U.S.C. § 1326
    (b)(1), the crime for illegal reentry
    after a felony, as the offense of conviction.
    We have discretion to reform the judgment on appeal or remand for
    the district court to do so. 
    28 U.S.C. § 2106
    . To avoid confusion and the
    “collateral consequences that may result from an unreformed district court
    judgment,” we opt for the latter. Gomez-Gomez, 
    2022 WL 152160
    , at *3
    (quoting United States v. Rio Benitez, 
    2021 WL 5579274
    , at *1 (5th Cir. Nov.
    29, 2021) (unpublished)); see also United States v. Fuentes-Rodriguez, 
    22 F.4th 504
    , 506 (5th Cir. 2022).
    We thus REMAND to the district court for the limited purpose of
    reforming its judgment to reflect that Ballardo-Ramos’s conviction is for
    violating 
    8 U.S.C. § 1326
    (b)(1).
    2
    

Document Info

Docket Number: 21-40306

Filed Date: 2/7/2022

Precedential Status: Non-Precedential

Modified Date: 2/8/2022