Texas Aggravated Robbery as an “Aggravated Felony” Theft Offense Under 8 U.S.C. § 1101(a)(43)(G) for § 1326(b)(2) Sentencing (Plain-Error Review)

1. Introduction

In United States v. Soto (consolidated with an appeal captioned against Freddy Flores-Soto), the Fifth Circuit reviewed—on plain error—a set of challenges to (i) an 84-month sentence for illegal reentry and (ii) an 18-month revocation sentence imposed after the defendant reentered while on supervised release for a prior illegal-reentry conviction.

The defendant, an “illegal alien” with multiple prior removals and convictions, had a significant criminal record including a 2009 Texas conviction for “AGG ROBBERY-DEADLY WPN” involving a firearm and a 2019 illegal-reentry conviction followed by supervised release. After being found again in 2024, he pleaded guilty and received the above sentences.

Key issues included: (1) criminal history category used for the revocation range, (2) whether the revocation sentence improperly relied on retributive factors barred from revocation sentencing, (3) whether the revocation order misstated the defendant’s name, (4) whether supervised-release conditions were contradictory in immigration-removal scenarios, and (5) whether the defendant was properly sentenced under 8 U.S.C. § 1326(b)(2) based on an “aggravated felony,” including what materials may establish that status and which aggravated-felony category applies.

2. Summary of the Opinion

The Fifth Circuit affirmed all challenged rulings. Because the defendant raised no objections below, the court applied plain-error review and found no clear or obvious error affecting substantial rights.

  • The revocation criminal-history category was properly taken from the original (2019) sentencing.
  • The record did not clearly show the district court actually relied on forbidden § 3553(a)(2)(A) “retributive” factors in revocation.
  • No correctable clerical error existed in using an “also known as” name in the revocation order.
  • Immigration-removal and probation-reporting supervised-release conditions were not irreconcilable.
  • Even if one alleged aggravated-felony predicate was disputable, the Texas aggravated robbery conviction supported aggravated-felony treatment—at minimum as a “theft offense” under 8 U.S.C. § 1101(a)(43)(G).

3. Analysis

3.1. Precedents Cited

Plain-error framework

  • United States v. Perez-Melis, 882 F.3d 161 (5th Cir. 2018): Provided the baseline that unpreserved objections are reviewed only for plain error.
  • United States v. Wilson, 164 F.4th 380 (5th Cir. 2026): Restated the four-part plain-error test (error; plainness; substantial rights; and discretionary correction only when fairness/integrity/public reputation are seriously affected).
  • United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc) (quoting United States v. Hope, 545 F.3d 293 (5th Cir. 2008)): Emphasized that “plain” means obvious—so clear that judge and prosecutor were “derelict” in allowing it.

Revocation sentencing and forbidden retribution

  • Esteras v. United States, 606 U.S. 185 (2025): Central to the defendant’s revocation argument. The opinion treated Esteras as establishing that courts may not rely on 18 U.S.C. § 3553(a)(2)(A) retributive considerations (seriousness, respect for law, just punishment) when imposing a revocation sentence. The Fifth Circuit used Esteras both as the governing rule and as the lens for assessing whether the district court’s comments made any violation “clear or obvious.”

Clerical error vs. deliberate wording

  • United States v. Ramirez-Gonzalez, 840 F.3d 240 (5th Cir. 2016): Supported the conclusion that deliberately chosen language is not a “clerical error” correctable under Rule 36. This foreclosed the claim that use of the prior-case name was an accidental mistake.

Immigration-related supervised-release conditions

  • United States v. Jimenez-Marquez, No. 25-50282, 2026 WL 74502 (5th Cir. Jan. 9, 2026) (per curiam) and United States v. Amador-Zepeda, No. 25-50237, 2025 WL 3731526 (5th Cir. Dec. 26, 2025) (per curiam): The court relied on these prior Fifth Circuit dispositions rejecting the same “irreconcilable conditions” argument (report to probation within 72 hours vs. immediate surrender for deportation, with a fallback reporting rule if not deported or if reentering).

Aggravated felony proof, Shepard materials, and supplementation on appeal

  • Shepard v. United States, 544 U.S. 13 (2005): The defendant invoked Shepard to argue the government failed to produce the limited class of judicial records typically used to establish the nature of a prior conviction under categorical/modified categorical approaches.
  • United States v. Palomar-Martinez, 671 F.App'x 329 (5th Cir. 2016) (per curiam): The Fifth Circuit used this to hold that, at least under plain-error review, the government’s supplementation of the appellate record with Shepard-type documents can defeat a claim that the district court “plainly” lacked an adequate basis. Here, the supplemented judgment showed a guilty plea to “AGG ROBBERY-DEADLY WPN” involving a firearm.

Affirmance on alternative grounds

  • Kovac v. Wray, 109 F.4th 331 (5th Cir. 2024): Provided the rule that the appellate court may affirm on grounds different from the district court’s reasoning if supported by the record—used here to uphold aggravated-felony treatment via § 1101(a)(43)(G) even if the “crime of violence” theory under § 1101(a)(43)(F) were uncertain.

Divisibility developments in Texas robbery statutes

  • Floyd v. State, 71 4 S.W.3d 9 (Tex. Crim. App. 2024): Cited for the proposition that the Texas aggravated robbery statute sets out “alternative means,” not divisible elements, affecting categorical-approach analysis.
  • United States v. Rose, 127 F.4th 619 (5th Cir. 2025) (per curiam) (noting Floyd’s abrogation of United States v. Garrett, 24 F.4th 485 (5th Cir. 2022)): Used to situate Fifth Circuit precedent after Floyd. The opinion’s point: earlier divisibility assumptions about Texas robbery were undermined.

3.2. Legal Reasoning

(a) Revocation criminal history category comes from the original sentencing

The court applied U.S.S.G. § 7B1.4 cmt. 1, which instructs that the revocation criminal history category is the one determined at the original sentencing for the underlying term. The 2019 Statement of Reasons showed Category V, defeating the claim that the revocation range should have used Category III.

(b) No plain error shown for alleged reliance on § 3553(a)(2)(A) at revocation

The defendant argued the district court “incorporated” reentry-sentencing remarks that included retribution. The Fifth Circuit acknowledged the prohibition (citing Esteras v. United States) but focused on the plainness requirement: the revocation explanation expressly referenced permissible factors (history and characteristics, deterrence, public protection, and rehabilitative needs). A passing incorporation-by-reference did not make it “clear or obvious” the court actually relied on forbidden retribution.

(c) Name usage was intentional, not clerical

Because counsel conceded the defendant also went by “Fernando Sanchez Soto,” and the court explained it used that name because it matched the prior conviction, the alleged error was not a correctable clerical mistake under United States v. Ramirez-Gonzalez.

(d) Supervised-release conditions were not contradictory

The reporting and surrender-for-deportation conditions were harmonized by their built-in contingencies: immediate surrender upon release, and reporting to probation if not deported or upon reentry. The court followed its prior rejections of the same argument in United States v. Jimenez-Marquez and United States v. Amador-Zepeda.

(e) Aggravated felony: the court affirmed via the “theft offense” category

The defendant attacked aggravated-felony treatment under 8 U.S.C. § 1326(b)(2), arguing the district court lacked proper materials and did not perform the correct “crime of violence” analysis under 8 U.S.C. § 1101(a)(43)(F).

The Fifth Circuit’s logic proceeded in two steps:

  1. Record sufficiency under plain error: even if Shepard-type documents were required, the government supplemented the record with the judgment establishing the conviction’s description (“AGG ROBBERY-DEADLY WPN” with a firearm), and under United States v. Palomar-Martinez this was enough to defeat a plain-error claim premised on an evidentiary gap.
  2. Alternative aggravated-felony ground: irrespective of whether Texas aggravated robbery qualifies as a “crime of violence” under § 1101(a)(43)(F), the court held it “undoubtedly” qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43)(G) because it is a “theft offense” with a sentence exceeding one year. The opinion relied on Texas definitions: Tex. Penal Code § 29.03(a) (aggravated robbery requires robbery) and Tex. Penal Code § 29.02 (robbery covers conduct “in the course of committing theft”). On that view, the statute’s divisibility did not matter because “theft is an element under any possible subdivision.” The panel then invoked Kovac v. Wray to affirm on this alternative, record-supported rationale.

3.3. Impact

  • Practical aggravation path for § 1326(b)(2): The opinion highlights a prosecutorial and appellate strategy in illegal-reentry cases: even when “crime of violence” classification is contested, Texas aggravated robbery may be upheld as an aggravated felony via the theft-offense category in § 1101(a)(43)(G).
  • Divisibility disputes may matter less where “theft” is baked in: By reasoning that theft is an element across aggravated-robbery variants, the court reduces the leverage of divisibility-based challenges (especially after Floyd v. State and United States v. Rose reshaped the divisibility landscape).
  • Plain-error posture is often dispositive: The decision underscores that unpreserved objections face a steep climb, particularly where the record contains permissible-factor explanations (revocation) or can be supplemented with decisive conviction documents (aggravated-felony predicates).
  • Revocation sentencing after Esteras: The panel’s application suggests that defendants must point to clear indications of retributive reliance, not merely ambiguous references to earlier remarks, to obtain relief.

4. Complex Concepts Simplified

  • Plain error: A demanding appellate standard applied when the defendant did not object in the trial court. The mistake must be obvious and important enough to undermine confidence in the proceeding.
  • Revocation sentencing vs. original sentencing: When supervised release is revoked, the court uses a narrower set of sentencing considerations; retributive goals in § 3553(a)(2)(A) are not to be relied upon for revocation.
  • Aggravated felony: A federal immigration-law term (defined in 8 U.S.C. § 1101(a)(43)) that triggers harsher consequences, including increased statutory exposure for illegal reentry under § 1326(b)(2).
  • Shepard documents: Certain reliable court records (e.g., charging documents, plea colloquy transcripts, judgments) used to determine what a prior conviction necessarily involved when a statute has multiple ways of being violated.
  • Divisible statute / alternative means: A “divisible” statute lists alternative elements creating multiple crimes; “alternative means” describe different ways to commit a single crime. This matters for whether courts may look beyond the statute’s text to a limited record of conviction.

5. Conclusion

The Fifth Circuit’s disposition in United States v. Soto is a plain-error affirmance with a notable immigration-and-sentencing takeaway: Texas aggravated robbery can sustain § 1326(b)(2) aggravated-felony sentencing through the “theft offense” category in 8 U.S.C. § 1101(a)(43)(G), allowing affirmance even where “crime of violence” analysis is contested. The decision also reinforces post-Esteras discipline in revocation sentencing (focused on what the record clearly shows) and reflects the Fifth Circuit’s continued rejection of “contradictory” immigration-removal supervised-release condition challenges.