     Case: 18-10312      Document: 00514952868         Page: 1    Date Filed: 05/10/2019




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

                                                                                FILED
                                    No. 18-10312                            May 10, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID GOMEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-467-1


Before STEWART, Chief Judge, and GRAVES and DUNCAN, Circuit Judges.
PER CURIAM: *
       David Gomez pleaded guilty to illegal reentry after deportation and was
sentenced within the guidelines range to 40 months of imprisonment, to be
followed by three years of supervised release. The written judgment reflects
that Gomez was sentenced under 8 U.S.C. § 1326(b)(2). Gomez argues that his
2011 Texas conviction on two counts of burglary of a habitation was
mischaracterized as an aggravated felony for the purpose of § 1326(b)(2), and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-10312       Document: 00514952868    Page: 2    Date Filed: 05/10/2019


                                  No. 18-10312

that he is entitled to correction of the judgment. We review for plain error,
which requires Gomez to show (1) a forfeited error (2) that is clear and obvious,
and (3) that affects his substantial rights. Puckett v. United States, 556 U.S.
129, 135 (2009). If he can satisfy these three requirements, this court has the
discretion to remedy the error if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 135 (internal quotation marks
and citation omitted).
      Texas burglary of a habitation is no longer an aggravated felony for the
purpose of § 1326(b)(2). See United States v. Godoy, 890 F.3d 531, 536-42 (5th
Cir. 2018). We agree with Gomez that his judgment should be corrected to
reflect conviction and sentence under § 1326(b)(1) instead of § 1326(b)(2). See
United States v. Ovalle-Garcia, 868 F.3d 313, 314 (5th Cir. 2017). Accordingly,
we REMAND to the district court for the limited purpose of correcting the
judgment to reflect conviction and sentence under § 1326(b)(1) instead of
§ 1326(b)(2). In all other respects, the judgment is AFFIRMED.




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