     Case: 19-10259       Document: 00515446262         Page: 1     Date Filed: 06/09/2020




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

                                                                                 FILED
                                     No. 19-10259                             June 9, 2020
                                   Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

JOSE LUIS ZAPATA-CAMACHO,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-237-1


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jose Luis Zapata-Camacho pleaded guilty, without a plea agreement, to
one count of illegal reentry after removal, in violation of 8 U.S.C. § 1326(a).
The district court sentenced him to, inter alia, a within-Sentencing Guidelines
sentence of 60-months’ imprisonment.                Zapata challenges this sentence,
asserting: his prior Texas conviction for possession, with intent to deliver, a
controlled substance, in violation of Texas Health & Safety Code § 481.112(a),


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 19-10259

does not qualify as an aggravated felony under 8 U.S.C. § 1326(b)(2)
(establishing 20-year maximum prison sentence upon conviction for illegal
reentry following aggravated-felony conviction); and the district court,
therefore, erred by referencing § 1326(b)(2) in its judgment.
      Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 46, 51
(2007). If no such procedural error exists, a properly preserved objection to an
ultimate sentence is reviewed for substantive reasonableness under an abuse-
of-discretion standard. Id. at 51; United States v. Delgado-Martinez, 564 F.3d
750, 751–53 (5th Cir. 2009). In that respect, for issues preserved in district
court, its application of the Guidelines is reviewed de novo; its factual findings,
only for clear error. E.g., United States v. Cisneros-Gutierrez, 517 F.3d 751,
764 (5th Cir. 2008).
      Zapata (as he concedes) did not, however, preserve this issue in district
court; therefore, review is only for plain error. E.g., United States v. Broussard,
669 F.3d 537, 546 (5th Cir. 2012). Under that standard, Zapata must show a
forfeited plain error (clear or obvious error, rather than one subject to
reasonable dispute) that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes that showing, we have the
discretion to correct such reversible plain error, but generally should do so only
if it “seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings”. Id.
      Zapata’s prior statute of conviction, Texas Health & Safety Code
§ 481.112(a), is indivisible and includes an offer to sell.     United States v.
Oronia-Camacho, 772 F. App’x 159, 160 (5th Cir. 2019) (per curiam) (citations
omitted). Moreover, an offer to sell a controlled substance does not qualify as



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                                 No. 19-10259

an aggravated felony. Id. (citation omitted). Accordingly, Zapata is correct his
prior conviction is not an aggravated felony under § 1326(b)(2); instead, it was
a felony conviction for purposes of 8 U.S.C. § 1326(b)(1) (establishing 10-year
maximum prison sentence upon conviction for illegal reentry following, inter
alia, felony conviction).
      This error does not require vacating Zapata’s sentence, however, because
Zapata fails to show it affected his substantial rights. To do so, Zapata “bears
the burden to prove the error affected the outcome in the district court”. United
States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009). But, he has
not demonstrated the different 10-year (under § 1326(b)(1)) and 20-year (under
§ 1326(b)(2)) statutory maximums impacted the 60-month (five-year) sentence
he received.
      Nevertheless, it is appropriate to reform the judgment to reflect the
correct statutory provision. See, e.g., id. At present, the judgment reflects a
conviction under 8 U.S.C. § 1326(a) and both 8 U.S.C. §§ 1326(b)(1) and (b)(2).
      AFFIRMED; REMANDED for the limited purpose of the district court’s
correcting the judgment to delete its reference to 8 U.S.C. § 1326(b)(2).




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