     Case: 15-10815      Document: 00513574383         Page: 1    Date Filed: 06/30/2016




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

                                                                            FILED
                                    No. 15-10815                        June 30, 2016
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

JOSE IGNACIO HERNANDEZ-AYALA,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:15-CR-74-1


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Jose Ignacio Hernandez-Ayala (Hernandez) appeals his sentence
following his conviction for illegal reentry in violation of 8 U.S.C. § 1326(a) and
(b). The district court sentenced Hernandez, above his advisory guidelines
range, to 30 months of imprisonment and three years of supervised release.
       Hernandez first challenges the sentence as substantively unreasonable.
Our review is for an abuse of discretion. See Gall v. United States, 552 U.S.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-10815

38, 51 (2007). A sentence is not substantively unreasonable because certain
predicate criminal convictions are double counted in the computation of a
defendant’s guidelines range.      See United States v. Duarte, 569 F.3d 528,
529-31 (5th Cir. 2009). A “defendant’s criminal history is one of the factors
that a court may consider in imposing a non-Guideline[s] sentence.” United
States v. Smith, 440 F.3d 704, 709 (5th Cir. 2006). Hernandez also has not
shown an abuse of discretion in the district court’s determination that his prior
offenses were serious enough to warrant an upward departure under
U.S.S.G. § 4A1.3. See Gall, 552 U.S. at 51. Thus, whether characterized as an
upward departure under the Sentencing Guidelines, or a variance, the
sentence was not substantively unreasonable.
      Hernandez also argues that his sentence exceeds the statutory
maximum under § 1326(a), and that the district court was not authorized to
sentence him under § 1326(b). He acknowledges that because he failed to raise
this argument in the district court, it is reviewed for plain error. He also
acknowledges that his argument is foreclosed by Almendarez-Torres v. United
States, 523 U.S. 224, 235 (1998), which held that a prior conviction under
§ 1326(b) is not an element of the offense. The decision in Alleyne v. United
States,   133   S.   Ct.   2151   (2013),       did   not   disturb   the   holding   in
Almendarez-Torres. United States v. Wallace, 759 F.3d 486, 497 (5th Cir.
2014).    Accordingly, Hernandez has not shown error, plain or otherwise,
relating to the imposition of the 30-month sentence under § 1326(b).
      Finally, Hernandez argues that the district court plainly erred in
sentencing him under § 1326(b)(2)’s 20-year statutory maximum, rather than
§ 1326(b)(1)’s 10-year statutory maximum, because he was not deported after
a prior conviction for an aggravated felony. Because Hernandez failed to raise
this argument in the district court, our review is for plain error. See United



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                                  No. 15-10815

States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009).             The
Government concedes that Hernandez’s prior conviction was not an aggravated
felony and that Hernandez was improperly sentenced under § 1326(b)(2).
      The record is devoid of evidence that the district court’s sentence was
influenced by the incorrect statutory maximum. Accordingly, Hernandez has
not shown a plain error requiring resentencing. See Mondragon-Santiago, 564
F.3d at 368-69. Nevertheless, because the judgment is ambiguous in that it
reflects a conviction under both § 1326 (b)(1)/(2), it must be modified to reflect
a sentence under § 1326(b)(1) only. We therefore remand this case to the
district court for the limited purpose of revising the written judgment to reflect
this modification.
      AFFIRMED; REMANDED FOR CORRECTION OF JUDGMENT.




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