     Case: 19-40033      Document: 00515074749         Page: 1    Date Filed: 08/13/2019




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

                                                                               FILED
                                    No. 19-40033                         August 13, 2019
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MANUEL SALVADOR VEGA-RIVAS, also known as Manuel Rivas-Vega,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:18-CR-663-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Manuel Salvador Vega-Rivas appeals his illegal reentry conviction and
the resulting 21-month sentence. For the first time on appeal, he argues that
the district court erred in applying the enhanced 20-year statutory maximum
of 8 U.S.C. § 1326(b)(2) to his offense because his prior Florida burglary
conviction was not an aggravated felony. He moves this court to remand to the




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-40033     Document: 00515074749      Page: 2   Date Filed: 08/13/2019


                                   No. 19-40033

district court for amendment of judgment or, in the alternative, for an
extension of time to file his reply brief.
      Because his § 1326(b)(2) argument was not raised below, this court’s
review is limited to plain error. See United States v. Vonn, 535 U.S. 55, 58-59
(2002). To demonstrate plain error, Vega-Rivas must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett v.
United States, 556 U.S. 129, 135 (2009). If he makes this showing, this court
has the discretion to correct the error, provided that it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.         See id.
(internal quotation marks, cite, & brackets omitted).
      Vega-Rivas is correct that Florida burglary is not an aggravated felony
because the relevant statute, FLA. STAT. ANN. § 810.02, lacks a physical force
element and does not comport with the generic definition of burglary of a
dwelling. United States v. Urbina-Fuentes, 900 F.3d 687, 692-94 (5th Cir.
2018). Consequently, Vega-Rivas’s prior conviction was not an aggravated
felony. Instead, the prior conviction was just a felony, which means the illegal
reentry conviction should have been under § 1326(b)(1), which carries a 10-
year maximum rather than the 20-year cap that applies when illegal reentry
follows an aggravated felony. Compare 18 U.S.C. § 1326(b)(1), with id. §
1326(b)(2).
      But the district court’s error does not require us to vacate Vega-Rivas’s
sentence, as the difference in the statutory maximum does not impact the 21-
month sentence. Nevertheless, it is appropriate to fix the judgment, which
may have future consequences, to reflect that Vega-Rivas’s conviction was
under 8 U.S.C. § 1326(b)(1).       See United States v. Mondragon-Santiago,
564 F.3d 357, 369 (5th Cir. 2009). Defendant’s unopposed motion for summary
remand to enter an amended judgment is GRANTED.



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