     Case: 18-10589       Document: 00514840428         Page: 1     Date Filed: 02/19/2019




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


                                     No. 18-10589                                 FILED
                                   Summary Calendar                       February 19, 2019
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE ANTONIO RAMIREZ-JARAMILLO,

                                                  Defendant - Appellant


                   Appeals from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:17-CR-210-1


Before BARKSDALE, ELROD, and HO, Circuit Judges.
PER CURIAM: *
       Jose Antonio Ramirez-Jaramillo pleaded guilty to illegal reentry after
deportation, in violation of 8 U.S.C. §1326(a) and (b)(1), (2), and was sentenced,
inter alia, to 34 months’ imprisonment, which was within the advisory
Sentencing Guidelines sentencing range. He contends: because none of his
prior convictions qualify as an aggravated felony for purposes of 8 U.S.C.
§ 1326(b)(2), the district court plainly erred in adopting the recommendation


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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: 18-10589     Document: 00514840428     Page: 2   Date Filed: 02/19/2019


                                  No. 18-10589

in the presentence investigation report (to which Ramirez did not object) that
the applicable statutory maximum was 20 years’ imprisonment.
      As Ramirez concedes, because he did not raise this issue in district court,
review is only for plain error. E.g., United States v. Broussard, 669 F.3d 537,
546 (5th Cir. 2012). Under that standard, Ramirez must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id.
      Even assuming none of Ramirez’ prior convictions qualify as an
aggravated felony, he has not shown that any error affected his substantial
rights. The record does not show the court’s selection of the within-Guidelines
34-month sentence was affected in any way by a belief that the statutory
maximum sentence was 20 years, pursuant to § 1326(b)(2), rather than 10
years, pursuant to § 1326(b)(1) (the judgment uses the latter sub-section). See
United States v. Mondragon-Santiago, 564 F.3d 357, 368–69 (5th Cir. 2009);
see also United States v. Rodriguez-Garcia, 2018 WL 4339799, at *1 (5th Cir.
2018) (stating Molina-Martinez v. United States, 136 S. Ct. 1338, 1346, 1348
(2016) does not require a different result).
      AFFIRMED.




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