United States v. Lopez
CourtCourt of Appeals for the Fifth Circuit
Date FiledOctober 29, 2026
Docket26-10090
StatusUnpublished
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Full Opinion
Case: 26-10090 Document: 60-1 Page: 1 Date Filed: 10/29/2026
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
____________ Fifth Circuit
FILED
No. 26-10090 October 29, 2026
Summary Calendar
Thomas B. Plunkett, III
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Pedro Garcia Lopez,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:25-CR-268-1
______________________________
Before Elrod, Chief Judge, and Wilson and Douglas, Circuit Judges.
Per Curiam: *
Pedro Garcia Lopez appeals his conviction and within-guidelines
sentence for illegally reentering the United States, in violation of 8 U.S.C.
§ 1326. He asserts for the first time that the district court erred by convicting
and sentencing him under the enhanced penalty provision of § 1326(b)(2)
because he did not have an aggravated felony conviction prior to removal.
Lopez is correct that, because his prior convictions resulted in deferred
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 26-10090 Document: 60-1 Page: 2 Date Filed: 10/29/2026
No. 26-10090
adjudication probation, he did not sustain an aggravated felony conviction
prior to his removal. See United States v. Mondragon-Santiago, 564 F.3d 357,
369 (5th Cir. 2009). However, he fails to demonstrate that the error affected
his substantial rights, defeating his claim on plain error review. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Nevertheless, the written
judgment’s citation of “§ 1326(a) and (b)(2)” constitutes an error that
should be corrected. See United States v. Gomez Gomez, 23 F.4th 575, 577–78
(5th Cir. 2022). Accordingly, the case should be remanded for reformation
of the judgment to reflect a conviction and sentence under § 1326(b)(1). See
id. at 578.
Lopez also contends that the term of supervised release imposed by
the district court was unreasonable because it was not based on individualized
considerations. The record reflects that the district court conducted an
individualized assessment, relying on appropriate factors in 18 U.S.C.
§ 3553(a) and Lopez’s criminal history, and determined that a term of
supervised release was necessary to protect the public and provide an added
measure of deterrence. See United States v. Dominguez-Alvarado, 695 F.3d
324, 329 (5th Cir. 2012). The term of supervision was within the range
authorized by 18 U.S.C. § 3583(b). Accordingly, Lopez has failed to
demonstrate that the district court abused its discretion by imposing a term
of supervised release in this case. See United States v. Rodriguez, 558 F.3d
408, 411 (5th Cir. 2009); Gall v. United States, 552 U.S. 38, 51 (2007).
Finally, the parties are correct that Lopez’s argument that the
recidivism enhancement in § 1326(b) is unconstitutional is foreclosed. See
United States v. Pervis, 937 F.3d 546, 553–54 (5th Cir. 2019); see also Erlinger
v. United States, 602 U.S. 821, 838 (2024).
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No. 26-10090
For the foregoing reasons, we AFFIRM Lopez’s conviction and
sentence, but we REMAND for reformation of the judgment to reflect a
conviction and sentence under § 1326(b)(1).
3