United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED November 18, 2022 No. 21-50795 Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Yobani Barcenas-Rumualdo,

Defendant—Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:20-CR-1849

Before Graves, Willett, and Engelhardt, Circuit Judges. Don R. Willett, Circuit Judge: Yobani Barcenas-Rumualdo was indicted for illegally reentering the United States, a violation of 8 U.S.C. § 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months’ imprisonment and three years’ supervised release. On appeal, Barcenas-Rumualdo argues that § 1326 violates the Fifth Amendment’s equal protection principles. As for his sentence, he asserts that the district court (1) failed to consider sentencing disparities, (2) Case: 21-50795 Document: 00516550269 Page: 2 Date Filed: 11/18/2022

No. 21-50795

improperly considered the timing of an appeal in sentencing him to three years of supervised release, and (3) failed to consider the Sentencing Guidelines’ policy on supervised release for deportable defendants. The Government concedes that the district court erred in basing the term of supervised release on the timing of an appeal but otherwise defends Barcenas-Rumualdo’s conviction and sentence. We agree that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release. Accordingly, we VACATE that part of Barcenas-Rumualdo’s sentence and REMAND for reconsideration of the supervised-release term. We otherwise AFFIRM Barcenas-Rumualdo’s conviction and sentence. I On July 21, 2020, United States Border Patrol cameras detected several individuals crossing into the United States from Mexico about seven miles west of the Tornillo Port of Entry. Border Patrol agents found Barcenas-Rumualdo and four others, including his cousin, hiding in a nearby field. When questioned, Barcenas-Rumualdo admitted that he was a citizen of Mexico and had no permission to be in the United States. His immigration record confirmed this, showing that he had been removed from the United States twice before. Barcenas-Rumualdo was indicted for unlawful reentry into the United States after a prior removal. He moved to dismiss his indictment, arguing that § 1326 is unconstitutional because (1) Congress enacted its predecessor, the Undesirable Aliens Act of 1929 (UAA), 1 out of animus toward Mexican and Latino immigrants, (2) more recent versions of the statute “d[id] not cleanse

1 As the Government notes, Congress did not enact the 1929 statute under this name, as the title was amended before passage. See 70 Cong. Rec. 4952 (Mar. 1, 1929).

2 Case: 21-50795 Document: 00516550269 Page: 3 Date Filed: 11/18/2022

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