     Case: 10-20645     Document: 00511606026         Page: 1     Date Filed: 09/19/2011




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

                                                                            FILED
                                                                        September 19, 2011
                                     No. 10-20645
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

MANUEL OLIVAS CONTRERAS, also known as Manuel Olivas, also known as
Manuel Olivas-Contreras, also known as Santiago Herrera-Vasquez,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-288-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Manuel Olivas Contreras pleaded guilty to illegal reentry after deportation
following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(b)(2).
At sentencing, Olivas contended: his 2007 deferred adjudication did not qualify
as an aggravated felony under the statute; and, therefore, his offense was subject
to a 10-year maximum sentence under 8 U.S.C. § 1326(b)(1), rather than a 20-
year maximum under 8 U.S.C. § 1326(b)(2). The Government conceded the point,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20645

and the district court noted the correction. Nevertheless, the judgment of
conviction did not reflect this fact and stated incorrectly that Olivas had been
convicted under § 1326(b)(2). Olivas contends the error: requires remand, for
the judgment to be modified to reflect conviction and sentencing under 8 U.S.C.
§ 1326(b)(1), not § 1326(b)(2); and entitles him to resentencing.
      Regarding the modification, the Government concedes that Olivas had not
been convicted of an aggravated felony before deportation and agrees the
judgment must be reformed to reflect that Olivas was convicted under 8 U.S.C.
§ 1326(b)(1) because the written judgment conflicts with the district court’s oral
pronouncement.
      Olivas bases his assertion that he is entitled to resentencing on the claim
that the district court committed procedural error by considering the aggravated
felony conviction in determining his sentence. Our court reviews sentencing
decisions for reasonableness, first ensuring that the district court did not commit
significant procedural error. United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008). “A procedural error during sentencing is harmless if the
error did not affect the district court’s selection of the sentence imposed.” United
States v. Delgado-Martinez, 564 F.3d 750, 753 (5th Cir. 2009) (citations and
internal quotations marks omitted). The proponent of the sentence bears the
burden of establishing that the error was harmless. Id.
      The government asserts the error was harmless. On the other hand, Olivas
contends that the district court, in imposing, inter alia, 48 months’
imprisonment, could have misunderstood he was subject to a 20-year, rather
than a 10-year, maximum sentence. In any event, an error in the district court’s
understanding that occurred after sentencing is harmless. See id. at 753. At
sentencing, the court ruled the 20-year maximum did not apply. And, at that
same 16-minute hearing, the court ruled that a downward departure was
appropriate, in part, “to reflect the fact that [Olivas] did receive deferred
adjudication in the aggravated assault case in the state court”. These rulings

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                                 No. 10-20645

show the district court understood the maximum sentence when it sentenced
Olivas. Therefore, the error in the written judgment was harmless.
      The judgment is modified to reflect a conviction under § 1326(b)(1), instead
of § 1326(b)(2), and this matter is remanded to district court for the limited
purpose of correcting the written judgment to reflect this modification.
      AFFIRMED AS MODIFIED; LIMITED REMAND FOR CORRECTION OF
JUDGMENT.




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