     Case: 14-40208      Document: 00512894630         Page: 1    Date Filed: 01/08/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit

                                                                                   FILED
                                                                               January 8, 2015
                                    No. 14-40208
                                  Summary Calendar                              Lyle W. Cayce
                                                                                     Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ABRAHAM HERNANDEZ-ALDAY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:13-CR-409-1


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Abraham Hernandez-Alday pleaded guilty to being found unlawfully
present in the United States following removal; he received a below-guidelines
range sentence of 30 months of imprisonment.
       The parties agree that, because Hernandez-Alday was sentenced to
deferred adjudication for a prior burglary conviction, he was not convicted of
an aggravated felony and, thus, the judgment improperly reflects that he was


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-40208     Document: 00512894630     Page: 2   Date Filed: 01/08/2015


                                  No. 14-40208

convicted and sentenced under 8 U.S.C. § 1326(b)(2). See United States v.
Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). Because Hernandez-
Alday’s offense was a § 1326(b)(1) violation rather than a § 1326(b)(2) violation,
we REMAND for the limited purpose of reforming the judgment to reflect the
proper statute of conviction. See 28 U.S.C. § 2106. In all other respects, the
judgment is AFFIRMED.




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