UNITED STATES v. CALLEJA SANDOVAL (2018)

Jesus Uriel Calleja-Sandoval, a native and citizen of Mexico, pled guilty without a plea agreement to one count of illegal reentry of an aggravated felon in violation of 8 U.S.C. § 1326(a), (b)(2) (2012).^* He was sentenced to a term of six months’ incarceration and one year of supervised release. On appeal, Calleja-Sandoval asserts that his prior conviction for conspiracy to commit larceny from the person is not an aggravated felony because the Immigration and Nationality Act’s (INA) definition of “conspiracy” requires an overt act, while North Carolina conspiracies have no such requirement. As Calleja-Sandoval acknowledges, however, this argument is foreclosed by our decision in Etienne v. Lynch, 813 F.3d 135 (4th Cir. 2015) (holding that conspiracy offense need not require an overt act in order to meet the INA definition of an aggravated felony). Accordingly, we affirm the district court’s judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED

FOOTNOTES

FOOTNOTE.   At the Fed. R. Crim. P. 11 hearing, counsel reserved the right to challenge the aggravated felony enhancement. See United States v. Montes-Flores, 736 F.3d 357, 361-62 & n.2 (4th Cir. 2013) (“aggravated felony” portion of illegal reentry charge is a penalty provision and not a separate offense).

PER CURIAM:

Affirmed by unpublished per curiam opinion. Unpublished opinions are not binding precedent in this circuit.