     Case: 17-11345      Document: 00514634147         Page: 1    Date Filed: 09/10/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 17-11345
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        September 10, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

MIGUEL RODRIGUEZ-GARCIA,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                                No. 3:17-CR-253-1




Before SMITH, WIENER, and WILLETT, Circuit Judges.
PER CURIAM: *

       Miguel Rodriguez-Garcia pleaded guilty of illegal reentry in violation of



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11345     Document: 00514634147      Page: 2   Date Filed: 09/10/2018


                                  No. 17-11345

8 U.S.C. § 1326. The district court adopted the presentence report (“PSR”) and
sentenced Rodriguez-Garcia, within the advisory guideline range, to
46 months. The PSR listed a pre-removal Texas conviction of burglary of a
habitation and stated that the applicable statutory maximum was 20 years
under § 1326(b)(2), and the written judgment reflects that Rodriguez-Garcia
was sentenced under § 1326(b)(2). Rodriguez-Garcia appeals, contending for
the first time that, because the court erroneously characterized his burglary
conviction as an aggravated felony for the purpose of § 1326(b)(2), he is entitled
either to resentencing or to correction of the judgment.

      We review for plain error, which requires Rodriguez-Garcia 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
those 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. (internal quotation marks and citation omitted).

      The parties agree that 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). The record, however, does not indicate
that the district court’s selection of a 46-month sentence within the correctly
calculated range was affected by its belief that the statutory maximum was
20 years under § 1326(b)(2) instead of 10 years under § 1326(b)(1). See United
States v. Mondragon-Santiago, 564 F.3d 357, 368−69 (5th Cir. 2009).
Rodriguez-Garcia therefore fails to show that the error affected his substantial
rights. See Puckett, 556 U.S. at 135; Mondragon-Santiago, 564 F.3d at 369.
We do not read Molina-Martinez v. United States, 136 S. Ct. 1338, 1346, 1348
(2016), as requiring a different result. But we agree with Rodriguez-Garcia
that the judgment should be corrected to reflect conviction and sentence under


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                                No. 17-11345

§ 1326(b)(1) instead of § 1326(b)(2).       See United States v. Ovalle-Garcia,
868 F.3d 313, 314 (5th Cir. 2017).

      The judgment is REMANDED only for correction 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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