     Case: 14-10520      Document: 00512890405         Page: 1    Date Filed: 01/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10520
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          January 6, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

GONZALO GALVAN-GARCIA,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:13-CR-101-1


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Gonzalo Galvan-Garcia pleaded guilty to being found unlawfully in the
United States following removal, and he received a within-guidelines sentence
of 70 months in prison, with no term of supervised release. On appeal, he
contends that the district court plainly erred in entering judgment under
8 U.S.C. § 1326(b)(2) because his prior Texas manslaughter conviction did not
constitute an “aggravated felony” as defined under 8 U.S.C. § 1101(a)(43)(F)


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 14-10520    Document: 00512890405       Page: 2   Date Filed: 01/06/2015


                                 No. 14-10520

and 18 U.S.C. § 16.      Galvan-Garcia maintains that the case should be
remanded for resentencing or, in the alternative, that the judgment should be
reformed to omit the reference to § 1326(b)(2).
      As Galvan-Garcia acknowledges, we review his claim for plain error
because he did not raise it in the district court.          See United States v.
Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). We have not resolved
the question whether a conviction under the Texas manslaughter statute
constitutes an aggravated felony under § 16. However, Galvan-Garcia has not
shown that any error in the categorization of his prior conviction affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). The
70-month sentence Galvan-Garcia received did not exceed the statutory
maximum under § 1326(b)(1). See Mondragon-Santiago, 564 F.3d at 369.
Although Galvan-Garcia speculates that the district court may have been
inclined to grant an authorized departure and may have taken into account
the statutory sentencing range, he has not shown a reasonable probability that
his sentence would have been lower but for any error by the district court. See
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). Because Galvan-
Garcia is unable to overcome plain error review and because the Government
does not concede that the judgment should be reformed, Galvan-Garcia has not
shown that we should remand for resentencing or that the judgment should be
reformed. Cf. Mondragon-Santiago, 564 F.3d at 368-69. Accordingly, the
judgment of the district court is AFFIRMED.




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