     Case: 18-11245      Document: 00515002738         Page: 1    Date Filed: 06/19/2019




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

                                    No. 18-11245                            FILED
                                  Summary Calendar                      June 19, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EFRAIN ORONIA-CAMACHO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-88-1


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       Efrain Oronia-Camacho appeals his guilty plea conviction for illegal
reentry after having been previously deported, in violation of 8 U.S.C. § 1326(a)
and (b)(2), and his resulting 18-month sentence. For the first time on appeal,
he argues that the district court erred in applying the enhanced statutory
maximum of § 1326(b)(2) to his offense because his prior Texas conviction for
possession of a controlled substance with the intent to distribute was not an
aggravated felony.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11245     Document: 00515002738     Page: 2   Date Filed: 06/19/2019


                                  No. 18-11245

      Because the 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, Oronia-Camacho 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 such a showing, this court has
the discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      Oronia-Camacho is correct that Texas possession of a controlled
substance with the intent to deliver is not an aggravated felony because the
relevant statute, TEX. HEALTH & SAFETY CODE § 481.112(a), is indivisible, see
United States v. Tanksley, 848 F.3d 347, 352 (5th Cir.), supplemented, 854 F.3d
284 (5th Cir. 2017); United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016),
and includes a mere offer to sell, see United States v. Ibarra-Luna, 628 F.3d
712, 715-16 (5th Cir. 2010).     Offers to sell a controlled substance do not
constitute an aggravated felony.     See id. at 716.    Consequently, his prior
conviction did not warrant the enhanced 20-year statutory maximum of
§ 1326(b)(2); instead, it was a felony conviction within the meaning of
§ 1326(b)(1), resulting in a 10-year statutory maximum. See id.
      However, the district court’s error does not require us to vacate Oronia-
Camacho’s sentence as he fails to show that the court’s finding that he
committed an aggravated felony under § 1326(b)(2) affected the 18-month
sentence he received. Nevertheless, it is appropriate for us to reform the
judgment to reflect that Oronia-Camacho’s conviction and sentence were based
on 8 U.S.C. § 1326(b)(1). See United States v. Mondragon-Santiago, 564 F.3d
357, 369 (5th Cir. 2009).
      AFFIRMED AS REFORMED.




                                        2
