     Case: 11-40683       Document: 00512067544         Page: 1     Date Filed: 11/29/2012




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

                                                                            FILED
                                                                        November 29, 2012

                                     No. 11-40683                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

JOSE BOLIVAR DE LA SANCHA-VILLARREAL, also known as Jose De La
Sanchez-Villareal,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-25-1


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Jose Bolivar De La Sancha-Villarreal (“De La Sancha”) appeals both his
conviction upon his guilty plea and his thirty-six month sentence for illegal
reentry following deportation, in violation of 8 U.S.C. § 1326. De La Sancha
argues that his prior Texas convictions of unlawful delivery of a controlled
substance, driving while intoxicated, and unlawfully carrying a weapon in a
tavern, were not aggravated felonies, and therefore, the district court plainly


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40683     Document: 00512067544      Page: 2    Date Filed: 11/29/2012



                                  No. 11-40683

erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2), which provides for a
20-year maximum statutory sentence, instead of § 1326(b)(1), which provides for
a 10-year maximum statutory sentence. We have held previously that the Texas
offenses of driving while intoxicated and unlawfully carrying a weapon into a
place licensed or permitted to sell alcoholic beverages–such as a tavern–are not
aggravated felonies. See United States v. Chapa-Garza, 243 F.3d 921, 927 (5th
Cir. 2001); United States v. Hernandez-Neave, 291 F.3d 296, 298–300 (5th Cir.
2001). The government maintains, however, that De La Sancha’s prior Texas
conviction for unlawful delivery was an aggravated felony for the purposes of
sentencing under § 1326(b).
      Because De La Sancha did not object to the district court sentencing him
under § 1326(b)(2), we review for plain error.              See United States v.
Mondragon–Santiago 564 F.3d 357, 361 (5th Cir. 2009). Under plain-error
review, we must determine whether: (1) there was error, (2) the error was plain,
(3) the error affects a defendant’s substantial rights, and (4) we should exercise
our discretion to correct the error in order to prevent a miscarriage of justice.
United States v. Olano, 507 U.S. 725, 732 (1993); United States v. Villegas, 404
F.3d 358, 358–59 (5th Cir. 2005).
      An aggravated felony is defined, in relevant part, to mean “illicit
trafficking in a controlled substance (as defined in section 802 of Title 21),
including a drug trafficking crime (as defined in section 924(c) of Title 18).”
8 U.S.C. § 1101(a)(43)(B). De La Sancha was previously convicted in Texas of
unlawfully delivering a controlled substance. This offense is not an aggravated
felony if the delivery was an offer to sell a controlled substance. See United
States v. Ibarra–Luna, 628 F.3d 712, 715–16 (5th Cir. 2010). This offense,
however, is an aggravated felony if the delivery was an actual transfer of a
controlled substance. See 8 U.S.C. § 1101(a)(43)(B) (defining “aggravated felony”
to include “a drug trafficking crime” as defined in 18 U.S.C. § 924(c)); § 924(c)(2)

                                         2
     Case: 11-40683       Document: 00512067544          Page: 3     Date Filed: 11/29/2012



                                       No. 11-40683

(defining “drug trafficking crime” as “any felony punishable under the Controlled
Substances Act”); 21 U.S.C. §§ 802(8) & (11), 841(a)(1) (criminalizing delivery of
a controlled substance under the Controlled Substances Act); § 812(c)
(identifying cocaine as a Schedule II narcotic); § 841(b)(1)(C) (providing
punishment of up to 20 years for distribution of cocaine in any amount).
       De La Sancha was charged with unlawfully delivering cocaine by actual
transfer, constructive transfer, and an offer to sell. The government concedes
that from the state court documents, we cannot determine which of the three
alternate manners and means De La Sancha used to commit the offense. There
are no Shepard-approved documents to narrow the nature of the delivery. See
Shepard v. United States, 544 U.S. 13, 16 (2005). Therefore, De La Sancha’s
prior conviction is not an aggravated felony, and it was error to sentence him
pursuant to § 1326(b)(2).
       De La Sancha concedes that he cannot show that this error affected his
substantial rights, or that any other alleged error in using his other prior
convictions affect his substantial rights. Therefore, there is no plain error that
requires us to vacate De La Sancha’s conviction or sentence. See Mondragon-
Santiago, 564 F.3d at 369. Consistent with our prior holding in Mondragon-
Santiago, however, De La Sancha is entitled to a reformation of the district
court’s judgment to reflect the correct statutory subsection.1 Id. at 369. We
therefore AFFIRM the district court’s judgment, but REFORM it to reflect
conviction and sentencing under 8 U.S.C. § 1326(b)(1).



       1
         Our recent decision in United States v. Chavez-Hernandez, 671 F.3d 494 (5th Cir.
2012), does not affect the applicability of Mondragon-Santiago to De La Sancha’s case.
Chavez-Hernandez addressed whether we should consider evidentiary admissions by the
defendant’s counsel during a sentencing hearing in deciding whether to exercise our discretion
to correct a plain error under the fourth prong of plain-error review. Id. at 500. As explained
above, we need not address the fourth prong in the instant case because De La Sancha cannot
show that the error affected his substantial rights under prong three.

                                              3
