Texas Aggravated Robbery with a Deadly Weapon Qualifies as an INA “Theft Offense” Aggravated Felony for § 1326(b)(2) Sentencing, Even Amid Divisibility Disputes

Case: United States v. Flores-Soto (consolidated with No. 25-50287 / No. 25-50295)
Court: United States Court of Appeals for the Fifth Circuit (Summary Calendar; unpublished under 5th Cir. R. 47.5)
Date: May 14, 2026

1) Introduction

This consolidated appeal arises from Freddy Flores-Soto’s latest conviction for illegal reentry after removal. Flores-Soto—an “illegal alien” as described by the panel—had repeatedly entered and reentered the United States over roughly three decades, accumulating multiple convictions and deportations. After a 2019 illegal-reentry conviction, he was released to supervised release. In 2024, Border Patrol encountered him again on the U.S. side of the Rio Grande while he was still serving that supervised release term.

Flores-Soto pleaded guilty to the new illegal-reentry charge. The district court imposed (i) an 84-month prison term and three years of supervised release on the new reentry case, and (ii) an 18-month revocation sentence for violating supervised release from the 2019 case. He made no contemporaneous objections but later raised six challenges on appeal, including guideline/criminal-history computation issues, an alleged improper reliance on retributive sentencing factors during revocation, purported clerical error in his name, claimed conflicts in supervised-release conditions related to deportation, and objections to the aggravated-felony basis for applying the enhanced illegal-reentry penalty.

2) Summary of the Opinion

The Fifth Circuit affirmed across the board under plain-error review. It held:

  • No error in using criminal history category V for the revocation range because that was the category determined at the original (2019) sentencing.
  • No plain error showing that the revocation sentence relied on prohibited retributive factors under 18 U.S.C. § 3553(a)(2)(A), notwithstanding the district court’s reference to statements made at the reentry sentencing.
  • No clerical error in the revocation order’s use of “Fernando Sanchez Soto,” because the record showed that name was an alias and was used deliberately (including because it matched the earlier conviction).
  • No irreconcilable conflict in supervised-release conditions requiring reporting within 72 hours of release while also directing surrender to immigration for deportation proceedings “immediately upon release.”
  • No plain error in treating Flores-Soto’s prior Texas conviction for “AGG ROBBERY-DEADLY WPN” (firearm) as an “aggravated felony” supporting sentencing under 8 U.S.C. § 1326(b)(2). Even if the “crime of violence” path under 8 U.S.C. § 1101(a)(43)(F) were disputed, the conviction “undoubtedly” qualified as a “theft offense” aggravated felony under 8 U.S.C. § 1101(a)(43)(G) because theft is an element of Texas aggravated robbery and the sentence exceeded one year.

3) Analysis

A. Precedents Cited

  • United States v. Perez-Melis, 882 F.3d 161 (5th Cir. 2018)
    Provided the baseline: because Flores-Soto did not object below, the appellate court applied plain-error review. This framing effectively raised Flores-Soto’s burden on every claim: not just to show error, but “plain” error affecting substantial rights and the integrity of proceedings.
  • United States v. Wilson, 164 F.4th 380 (5th Cir. 2026)
    Supplied the modern Fifth Circuit articulation of the four-part plain-error standard. The panel used Wilson to emphasize that even proved error is not automatically corrected; the fourth prong is discretionary and focuses on institutional legitimacy.
  • United States v. Delgado, 672 F.3d 320 (5th Cir. 2012) (en banc) and United States v. Hope, 545 F.3d 293 (5th Cir. 2008)
    Quoted for the demanding meaning of “plain” error—so clear that the trial judge and prosecutor were “derelict” in permitting it. This reinforced why ambiguous record signals (e.g., a passing incorporation-by-reference) were insufficient to satisfy prong two.
  • Esteras v. United States, 606 U.S. 185 (2025)
    Esteras is the key Supreme Court constraint invoked by Flores-Soto: revocation sentencing may not be driven by § 3553(a)(2)(A) retributive factors (seriousness of the offense, respect for law, just punishment). The panel applied Esteras in a record-focused way—requiring a clear showing that the district court “actually relied on” retribution. Because the court’s stated revocation rationale tracked permissible factors (deterrence, protection of the public, rehabilitation-related needs), Esteras did not yield “clear or obvious” error.
  • United States v. Ramirez- Gonzalez, 840 F.3d 240 (5th Cir. 2016)
    Controlled the “clerical error” claim: Rule 36 corrections are for genuine mistakes, not deliberate word choices. Because the district court intentionally used the defendant’s other name (the name of the earlier conviction) and acknowledged the alias relationship, Ramirez- Gonzalez foreclosed relief.
  • 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)
    These unpublished decisions were cited as directly rejecting identical challenges to supervised-release conditions addressing deportation and post-release reporting. They functioned as intra-circuit consistency support: the panel treated the asserted “conflict” as already resolved.
  • Shepard v. United States, 544 U.S. 13 (2005)
    Shepard defines the limited, reliable documents a court may consult when identifying the elements of a prior conviction under the categorical/modified categorical approach (e.g., indictment, plea colloquy, judgment). Flores-Soto argued the district court lacked Shepard-approved documents and relied only on the PSR. The panel answered by noting the Government supplemented the appellate record with a judgment of conviction showing the offense (and firearm use).
  • United States v. Palomar-Martinez, 671 F.App'x 329 (5th Cir. 2016) (per curiam)
    Palomar-Martinez was the bridge between Shepard and plain error: even if consultation of Shepard materials were necessary, the defendant cannot show plain error if the Government supplies qualifying Shepard documents on appeal confirming the PSR’s description. The panel used this to defeat Flores-Soto’s “insufficient information” argument.
  • Kovac v. Wray, 109 F.4th 331 (5th Cir. 2024)
    Used to justify affirmance on alternative grounds. Even if the district court’s aggravated-felony rationale focused on 8 U.S.C. § 1101(a)(43)(F) (“crime of violence”), the panel affirmed based on 8 U.S.C. § 1101(a)(43)(G) (“theft offense”) because the record supported that theory.
  • Floyd v. State, 71 4 S.W.3d 9 (Tex. Crim. App. 2024), United States v. Rose, 127 F.4th 619 (5th Cir. 2025) (per curiam), and United States v. Garrett, 24 F.4th 485 (5th Cir. 2022)
    These authorities framed the divisibility debate around Texas robbery statutes. The opinion’s footnote explains that Floyd (as recognized in Rose) “unequivocally abrogated” the Fifth Circuit’s earlier view (Garrett) that Texas simple robbery is divisible. Against that shifting backdrop, the panel emphasized divisibility did not matter for its chosen aggravated-felony theory because theft is an element of aggravated robbery “under any possible subdivision.”

B. Legal Reasoning

  1. Plain-error posture governed everything.
    By invoking United States v. Perez-Melis, United States v. Wilson, and United States v. Delgado, the panel set a high threshold: each alleged mistake had to be clear, outcome-relevant, and serious enough to warrant discretionary correction. This posture is especially consequential where the record can support a permissible rationale (revocation factors) or an alternative statutory theory (aggravated-felony category).
  2. Criminal history category in revocation comes from the original sentencing.
    The panel applied U.S.S.G. § 7B1.4 cmt. 1, which fixes the revocation criminal history category as the one determined at the original sentencing. The “Statement of Reasons” from 2019 showed category V, so the district court’s use of V (not III) was record-supported and not error.
  3. Esteras limits retribution in revocation—but the record must show actual reliance.
    Flores-Soto’s best legal theory relied on Esteras v. United States, arguing that the district court “imported” retributive § 3553(a)(2)(A) considerations by referencing remarks made at the reentry sentencing. The panel treated the incorporation-by-reference as insufficient because the court’s revocation explanation expressly invoked permissible factors (deterrence, protection of the public, rehabilitation-related needs), making it not “clear or obvious” the court relied on retribution.
  4. “Clerical error” is not a vehicle to relitigate deliberate naming choices.
    The name discrepancy (“Fernando Sanchez Soto” vs. “Freddy Flores-Soto”) failed because the record showed the defendant used both names and the court chose the former for a reason tied to the prior conviction. Under United States v. Ramirez- Gonzalez, intentional phrasing is not correctable as clerical error.
  5. Deportation-related conditions were not irreconcilable.
    The panel relied on its recent unpublished rulings—United States v. Jimenez-Marquez and United States v. Amador- Zepeda—to reject the argument that immediate surrender to immigration conflicts with 72-hour reporting requirements. The structure of the conditions contemplates deportation and provides a contingency (“[i]n the event the Defendant is not deported, or… reenters…”), thereby avoiding a true impossibility.
  6. Aggravated felony: the panel affirmed via “theft offense” under § 1101(a)(43)(G).
    The enhanced penalty under 8 U.S.C. § 1326(b)(2) applies when reentry follows an “aggravated felony.” Flores-Soto attacked the characterization of both (i) his 2019 illegal reentry (as an aggravated felony under 8 U.S.C. § 1101(a)(43)(O)) and (ii) his 2009 Texas aggravated robbery (as an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)). The panel bypassed disputes about the 2019 offense and about whether aggravated robbery is a “crime of violence,” holding it “undoubtedly” qualifies under 8 U.S.C. § 1101(a)(43)(G) as a “theft offense” with a sentence exceeding one year.

    Two moves mattered:
    • Record sufficiency under plain-error review. Even if Shepard materials were required, United States v. Palomar-Martinez allowed the Government to supplement on appeal with a judgment proving the offense of conviction (“AGG ROBBERY-DEADLY WPN,” firearm), defeating any claim that the district court’s finding was plainly unsupported.
    • Divisibility became irrelevant on the theft-element theory. Citing Tex. Penal Code § 29.03(a) (aggravated robbery requires robbery) and id. § 29.02 (robbery occurs “in the course of committing theft”), the panel reasoned that theft is an element across any version of Texas aggravated robbery; therefore, whether the statute is divisible does not change the aggravated-felony result under § 1101(a)(43)(G). The footnote’s discussion of Floyd v. State, United States v. Rose, and United States v. Garrett underscored the doctrinal context but did not control the outcome because the panel selected a theory not dependent on divisibility parsing.

C. Impact

  • Broader aggravated-felony pathway for Texas aggravated robbery in reentry cases.
    The opinion’s most practically significant move is its reliance on 8 U.S.C. § 1101(a)(43)(G) (“theft offense”) rather than litigating the frequently contested “crime of violence” analysis under § 1101(a)(43)(F). For defendants with Texas aggravated robbery convictions and sentences exceeding one year, the Government may point to the theft-element structure of robbery to support aggravated-felony status even when violence-based categorical analysis is uncertain or in flux.
  • Plain-error review plus appellate record supplementation is a potent combination.
    By applying United States v. Palomar-Martinez, the panel signals that defendants who do not object to the evidentiary basis for a prior-conviction characterization in the district court face an uphill climb: the Government may be able to cure potential Shepard/document gaps on appeal, defeating “plainness” and “substantial rights” arguments.
  • Post-Esteras revocation litigation will turn on explicit record attribution.
    The opinion illustrates a defensible path for district courts: even if earlier remarks touch on retribution, an on-the-record revocation explanation anchored in deterrence, public protection, and rehabilitative needs will make Esteras challenges difficult—especially under plain-error review.
  • Supervised-release “deportation + report” conditions remain stable in the Fifth Circuit.
    By reiterating United States v. Jimenez-Marquez and United States v. Amador- Zepeda, the panel reinforces a standard condition framework that anticipates removal and provides a reentry/not-deported contingency—limiting opportunities for “impossibility” attacks.

4) Complex Concepts Simplified

  • Plain error: When a defendant fails to object at trial, the appellate court will correct only errors that are obvious, harmful, and seriously undermine the justice system’s fairness or reputation. Ambiguity usually defeats relief.
  • Revocation sentencing and § 3553(a)(2)(A): After Esteras v. United States, courts generally may not punish a supervised-release violation to impose “just punishment” for its own sake. They may, however, consider deterrence, protecting the public, and rehabilitation-oriented needs.
  • Shepard documents: Under Shepard v. United States, courts may consult a limited set of reliable conviction records (like judgments and plea papers) to determine what a prior conviction necessarily established.
  • Aggravated felony (INA): A term of art in immigration law that triggers serious consequences. Here it mattered because 8 U.S.C. § 1326(b)(2) increases the maximum penalty for illegal reentry if the person was previously removed after an aggravated felony.
  • “Theft offense” aggravated felony: 8 U.S.C. § 1101(a)(43)(G) includes certain theft crimes (with a sentence of at least one year). The panel treated Texas aggravated robbery as fitting this category because Texas defines robbery as occurring “in the course of committing theft.”
  • Divisibility: Some statutes list alternative elements creating different crimes (divisible) while others list alternative means of committing one crime (indivisible). Divisibility affects whether courts can look to limited conviction documents to identify which set of elements applied. The panel’s theft-element approach minimized the need to resolve divisibility disputes.

5) Conclusion

United States v. Flores-Soto is principally a plain-error affirmance, but it contains a notable substantive pivot: the Fifth Circuit upheld aggravated-felony sentencing for illegal reentry by characterizing Texas aggravated robbery with a deadly weapon as an INA “theft offense” aggravated felony under 8 U.S.C. § 1101(a)(43)(G), sidestepping contested “crime of violence” analysis. Combined with its application of Esteras v. United States to require a clear showing of actual reliance on retribution in revocation, the opinion underscores a recurring appellate theme: defendants who do not object below face steep obstacles, and appellate courts may affirm on any record-supported legal ground—even one different from the district court’s stated rationale.

Note: The opinion is unpublished and not designated for publication under 5th Cir. R. 47.5, but it may still be cited and can be persuasive, especially where it aligns with other Fifth Circuit dispositions and provides a clear analytical route (here, the § 1101(a)(43)(G) theft-offense pathway).