     Case: 10-40100     Document: 00511262752          Page: 1    Date Filed: 10/14/2010




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

                                                 FILED
                                                                          October 14, 2010
                                     No. 10-40100
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

ADAN ADALBERTO GARCIA-CAVAZOS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 6:09-CR-64-1


Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
        Adan Adalberto Garcia-Cavazos (Garcia) appeals from his conviction of
illegal reentry after having been deported.               He contends that his Texas
conviction for delivery of cocaine and his second Texas conviction for simple
possession were not aggravated felonies.                Therefore, he argues, he was
incorrectly sentenced pursuant to 8 U.S.C. § 1326(b)(2), which carries a 20-year
maximum sentence of imprisonment, instead of under § 1326(b)(1), which carries
a 10-year maximum sentence. He argues that his case should be remanded for

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40100     Document: 00511262752 Page: 2         Date Filed: 10/14/2010
                                  No. 10-40100

resentencing because the 20-year maximum may have influenced the district
court’s choice of his 37-month sentence.
      Garcia did not raise this argument in the district court and our review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant 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.” Id. (internal marks and citation omitted).
      The Government concedes that it did not establish that Garcia’s conviction
for delivery of cocaine was an aggravated felony under 8 U.S.C. § 1101(a)(43) and
that under the Supreme Court’s recent decision in Carachuri-Rosendo v. Holder,
130 S. Ct. 2577, 2580 (2010), his second conviction for simple possession was
likewise not an aggravated felony under § 1101(a)(43). Therefore, it was error
to sentence Garcia pursuant to § 1326(b)(2).
      The record does not indicate that the district court’s error affected Garcia’s
substantial rights. He has failed to demonstrate reversible plain error. See
Mondragon-Santiago, 564 F.3d at 369. However, we modify the judgment to
reflect a conviction under § 1326(b)(1) instead of § 1326(b)(2), and we remand to
the 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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