     Case: 18-11285      Document: 00514987793         Page: 1     Date Filed: 06/07/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                 United States Court of Appeals

                                    No. 18-11285
                                                                          Fifth Circuit

                                                                        FILED
                                  Summary Calendar                   June 7, 2019
                                                                   Lyle W. Cayce
UNITED STATES OF AMERICA,                                               Clerk


                                                 Plaintiff-Appellee

v.

PABLO SUASTE BALDERAS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:18-CR-217-1


Before BENAVIDES, HAYNES, and WILLETT, Circuit Judges.
PER CURIAM: *
       Pablo Suaste Balderas pleaded guilty to illegal reentry after deportation,
in violation of 8 U.S.C. § 1326, and he was sentenced to 63 months in prison,
to be followed by a three-year supervised release term.                    Suaste Balderas
correctly concedes that the second argument he raises on appeal – that his
sentence violates due process because it exceeded the statutory maximum
charged in the indictment – is foreclosed by Almendarez-Torres v. United


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11285       Document: 00514987793    Page: 2   Date Filed: 06/07/2019


                                  No. 18-11285

States, 523 U.S. 224, 226-27 (1998). He raises the issue, however, to preserve
it for further review.
      In addition, Suaste Balderas contends that the district court plainly
erred by stating in the judgment that his conviction was punishable under
§ 1326(b)(2), rather than § 1326(b)(1), because his prior Texas conviction for
manufacture/delivery of a controlled substance was not an aggravated felony
for purposes of § 1326(b)(2), and he requests modification of the judgment
accordingly. To show plain error, he must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, we have the discretion to
correct the error but do so “only if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks, brackets, and citations omitted).
      As Suaste Balderas correctly notes, his Texas conviction does not qualify
as an aggravated felony because the statute prohibiting manufacture and
delivery of a controlled substance is indivisible and includes mere offers to sell.
See United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016); United States v.
Ibarra-Luna, 628 F.3d 712, 715-16 (5th Cir. 2010).              Accordingly, the
designation in the written judgment indicating that Suaste Balderas was
convicted and sentenced under § 1326(b)(2) was erroneous. See United States
v. Godoy, 890 F.3d 531, 542 (5th Cir. 2018). We therefore MODIFY the district
court’s judgment to reflect that Suaste Balderas was sentenced under
§ 1326(b)(1), and we AFFIRM the judgment AS MODIFIED.




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