     Case: 09-40934 Document: 00511330902 Page: 1 Date Filed: 12/23/2010




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

                                                 FILED
                                                                         December 23, 2010
                                     No. 09-40934
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

VICTOR JAVIER JIMENEZ-LOPEZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 2:09-CR-145-1


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Victor Javier Jimenez-Lopez appeals from his conviction for being illegally
present in the United States after having been deported. He contends that his
prior state conviction for assault with a deadly weapon, although a “crime of
violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii), was not an “aggravated felony”
pursuant to 8 U.S.C. § 1101(a)(43)(F). He also argues that his prior state
conviction for possession of cocaine was not an aggravated felony because it was



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40934 Document: 00511330902 Page: 2 Date Filed: 12/23/2010

                                  No. 09-40934

not prosecuted as a recidivist offense.       Although he does not challenge the
district court’s calculation of the Sentencing Guidelines or its imposition of a
sentence of 57 months, he argues that his case should be remanded to allow the
district court to correct the judgment to reflect that he was convicted under
8 U.S.C. § 1326(b)(1).
      Because Jimenez-Lopez did not raise this argument in the district court,
we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 360-61 (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.
      Jimenez-Lopez’s prior conviction for assault with a deadly weapon resulted
in a sentence of less than one year of imprisonment; thus, it was not an
aggravated felony pursuant to § 1101(a)(43)(F). See Mondragon-Santiago, 564
F.3d at 368-69.    In addition, in light of the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), his prior conviction for
possession of cocaine does not qualify as an aggravated felony because it was not
prosecuted as a recidivist offense.       Although the district court erred by
sentencing Jimenez-Lopez pursuant to § 1326(b)(2), the record does not indicate
that the error affected Jimenez-Lopez’s substantial rights. See Mondragon-
Santiago, 564 F.3d at 369. Therefore, he has failed to demonstrate reversible
plain error. However, we grant the Government’s unopposed motion to reform
the judgment of the district court to indicate that Jimenez-Lopez was convicted
under § 1326(b)(1). See id.
      AFFIRMED; MOTION FOR SUMMARY REFORMATION OF THE
JUDGMENT GRANTED; ALTERNATIVE MOTION FOR EXTENSION OF
TIME TO FILE A BRIEF DENIED. JUDGMENT REFORMED TO INDICATE

                                          2
    Case: 09-40934 Document: 00511330902 Page: 3 Date Filed: 12/23/2010

                               No. 09-40934

THAT JIMENEZ-LOPEZ WAS SENTENCED PURSUANT TO 8 U.S.C.
§ 1326(b)(1).




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