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

                                                                            FILED
                                                                            May 8, 2008
                                     No. 07-40888
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

v.

JESUS CAMPOS,

                                                  Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:07-CR-500-1


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       Jesus Campos appeals his guilty-plea conviction and sentence for being
unlawfully present in the United States after having been removed previously.
He argues that the district court committed reversible plain error by entering a
judgment reflecting that he was convicted of an offense under 8 U.S.C.
§ 1326(b)(2) because he did not have a prior conviction that qualified as an
“aggravated felony.” He also challenges the constitutionality of § 1326(b) in light
of Apprendi v. New Jersey, 530 U.S. 466 (2000).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                   No. 07-40888

      Campos correctly concedes that review of his first argument is for plain
error. See FED. R. CRIM. P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th
Cir. 2007), petition for cert. filed (Jan. 22, 2008) (No. 07-8978). To obtain relief,
he must show that the district court committed (1) an error (2) that is clear or
obvious and (3) that affects his substantial rights. See United States v. Olano,
507 U.S. 725, 732–34 (1993). If Campos makes this showing, then the decision
to correct the error is within this court’s discretion. Id. The maximum penalty
for unlawful reentry of an alien whose removal was subsequent to, inter alia, a
prior felony conviction, is 10 years. § 1326(b)(1). The maximum penalty for
unlawful reentry of an alien whose removal was subsequent to, inter alia, a prior
aggravated felony conviction, is 20 years. § 1326(b)(2). An “aggravated felony”
is defined in relevant part as a crime of violence for which the punishment is no
less than one year of imprisonment. 8 U.S.C. § 1101(a)(43)(F).
      The presentence report reflects that Campos has only one prior felony
conviction—that being for attempted robbery. The trial court sentenced Campos
to 75 days of imprisonment and five years of probation on the attempted robbery
charge. Thus, Campos’s prior felony conviction is not a qualifying “aggravated
felony” for purposes of § 1326(b)(2). See § 1101(a)(43)(F). Because Campos does
not have a qualifying prior “aggravated felony” conviction, he cannot be
convicted under § 1326(b)(2). Accordingly, the district court committed a clear
or obvious error when it entered a judgment reflecting that Campos was
convicted pursuant to § 1326(b)(2).
      Nevertheless, Campos is not entitled to resentencing because he cannot
show that the district court’s error affected his substantial rights. See Olano,
507 U.S. at 732–34. First, no record evidence exists to support the proposition
that the district court’s sentence was influenced by an incorrect understanding
of the statutory maximum sentence in this case. And second, the sentence
imposed was within a properly calculated guidelines range—which Campos does
not contest—and the sentence was below the statutory maximum of 10 years of

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imprisonment under the correct subsection of § 1326(b). As a result, the district
court did not commit reversible plain error. See Olano, 507 U.S. at 732–34. The
judgment, however, is modified in accordance with this opinion to reflect a
conviction pursuant to § 1326(b)(1). See United States v. Castro-Trevino, 464
F.3d 536, 543 n.16, 547 (5th Cir. 2006).
      In light of Apprendi, Campos also challenges the constitutionality of §
1326(b)’s treatment of prior felony and aggravated felony convictions as
sentencing factors rather than as elements of the offense that must be found by
a jury. This argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th
Cir. 2007), cert. denied, 128 S. Ct. 872 (2008).
      Accordingly, the district court’s judgment is AFFIRMED, as modified.




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