     Case: 13-40814      Document: 00512651067         Page: 1    Date Filed: 06/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                    No. 13-40814                               FILED
                                  Summary Calendar                          June 3, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HECTOR RAFAEL DELEON-AJIATAZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:13-CR-199-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Hector Rafael Deleon-Ajiataz pleaded guilty to being found knowingly
and unlawfully present in the United States following deportation and received
a below-guidelines prison sentence of 36 months. Deleon-Ajiataz argues on
appeal that he was improperly convicted and sentenced under 8 U.S.C.
§ 1326(b)(2)’s enhanced statutory maximum sentence, asserting that he does
not have a prior conviction for an aggravated felony as the statute requires.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40814   Document: 00512651067   Page: 2   Date Filed: 06/03/2014


                                 No. 13-40814

Our review is for plain error. United States v. Mondragon-Santiago, 564 F.3d
357, 368 (5th Cir. 2009).
        The statutes of conviction and adjudicative records that we may
consider, see Shepard v. United States, 544 U.S. 13, 17-26 (2005); Taylor v.
United States, 495 U.S. 575, 602 (1990), do not support a determination that
Deleon-Ajiataz had a prior aggravated felony conviction as defined in 8 U.S.C.
§ 1101(a)(43). Regardless of any plain error, however, Deleon-Ajiataz is not
entitled to remand for resentencing because, as he concedes, he cannot show
that any error affected his sentence. See Mondragon-Santiago, 564 F.3d at
369.     Nonetheless, because Deleon-Ajiataz’s illegal reentry offense was a
§ 1326(b)(1) violation rather than a § 1326(b)(2) violation, we REMAND for the
sole 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.




                                       2
