     Case: 11-20016     Document: 00511704369         Page: 1     Date Filed: 12/22/2011




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

                                                                            FILED
                                                                        December 22, 2011
                                     No. 11-20016
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

MARTIN ACOSTA YEPEZ, also known as Martin Yepez Acosta, also known as
Degoberto Acosta, also known as Martin Acosta, also known as Martin Acosta-
Yepez, also known as Martin Y. Acosta, also known as Juan Martin Acosta,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CR-525-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Martin Acosta Yepez appeals from his conviction of illegal reentry
following removal. He contends solely that his Texas conviction of delivery of
cocaine did not constitute an aggravated felony for the purpose of sentencing him
pursuant to 8 U.S.C. 1326(b)(2), which carries a maximum 20-year term of
imprisonment.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20016

      Acosta Yepez invited the district court to treat his Texas conviction as an
aggravated felony when arguing for a downward departure from his guideline
sentencing range.     The Government, however, does not argue that he is
precluded from raising the aggravated felony issue under the invited error
doctrine. Out of an abundance of caution, we review Acosta Yepez’s contention
for plain error. See United States v. Fernandez-Cusco, 447 F.3d 382, 384 (5th
Cir. 2006). 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.     To
demonstrate prejudice, Acosta Yepez must demonstrate that the allegedly
incorrect application of § 1326(b)(2) affected his sentence. See United States v.
Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
      Acosta Yepez’s state court judgment of conviction indicates that he was
convicted of delivery of cocaine and was sentenced to six months in the county
jail. He was charged in three separate paragraphs with delivery of cocaine to G.
Flores by actual transfer, constructive transfer, and/or offer to sell. It is unclear
under which theory Acosta Yepez was convicted. The delivery of cocaine in
Texas by offer to sell is not an aggravated felony under federal law, and the
offense of delivery therefore is not categorically an aggravated felony. See
United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010). The district
court thus erred by finding that Acosta Yepez’s previous drug offense was an
aggravated felony for purposes of § 1326.
      The district court’s error, however, did not affect Acosta Yepez’s
substantial rights. His sentence of 54 months of imprisonment was within the
unchallenged 46-57 month guideline sentencing range and was less than the 10
year maximum sentence provided for a defendant with a prior non-aggravated
felony. See § 1326(b)(1). The district court determined that a within-range

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                                 No. 11-20016

sentence was appropriate, particularly in light of his previously lenient
sentences, his established recidivism, and his relatively rapid return to the
United States after his removal. Acosta Yepez cannot carry his burden of
showing that his sentence would have been different had the district court been
bound by a 10-year statutory maximum instead of a 20-year one.               See
Mondragon-Santiago, 564 F.3d at 369.
      Acosta Yepez has not demonstrated reversible plain error in the
calculation of his sentence. Under the circumstances, however, we grant his
request (to which the Government agrees) that we remand the case to the
district court for the limited purpose of reforming the judgment and sentence to
indicate that Acosta Yepez is sentenced pursuant to § 1326(b)(1) and not §
1326(b)(2).
      AFFIRMED. LIMITED REMAND TO REFORM JUDGMENT.




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