     Case: 15-40993      Document: 00513438415         Page: 1    Date Filed: 03/24/2016




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


                                    No. 15-40993                             FILED
                                  Summary Calendar                     March 24, 2016
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ELVIN RAFAEL PINEDA-OYUELA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:15-CR-282-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Elvin Rafael Pineda-Oyuela pleaded guilty to reentering the United
States after having previously been removed and was sentenced to 27 months
of imprisonment followed by three years of supervised release. In this appeal,
he challenges the district court’s entry of a judgment under 8 U.S.C.
§ 1326(b)(2)— which provides for a maximum sentence of 20 years for an alien
whose prior removal was subsequent to a conviction for an “aggravated


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40993    Document: 00513438415    Page: 2   Date Filed: 03/24/2016


                                No. 15-40993

felony”—arguing that the qualifying prior felony, a 2000 Florida conviction for
robbery, did not constitute an “aggravated felony” because he was not
sentenced to a term of imprisonment of at least one year in relation thereto.
See § 1326(b)(2); 8 U.S.C. § 1101(a)(43)(F). Pineda-Oyuela asks this court to
remand the case to the district court for reformation of the judgment to
correctly reflect his conviction under § 1326(b)(1). The Government concedes
that judgment was wrongly entered under § 1326(b)(2) for the reasons given
by Pineda-Oyuela but contends that remand is unnecessary in light of this
court’s authority to reform the judgment. See 28 U.S.C. § 2106.
      Because Pineda-Oyuela did not preserve this error in the district court,
we review for plain error only. See United States v. Jones, 484 F.3d 783, 792
(5th Cir. 2007); Puckett v. United States, 556 U.S. 129, 135 (2009). We agree
that the district court committed clear or obvious error in entering judgment
under § 1326(b)(2) because Pineda-Oyuela’s Florida robbery conviction, which
resulted in a sentence only of probation, did not constitute an “aggravated
felony,” as required for conviction under § 1326(b)(2). See United States v.
Mondragon-Santiago, 564 F.3d 357, 368-69 (5th Cir. 2009). Judgment should
therefore have been entered under § 1326(b)(1). Nonetheless, because the
district court’s error did not affect the sentence he received, Pineda-Oyuela
fails to show that the error affected his substantial rights. See id. at 369;
Puckett, 556 U.S. at 135.
      Accordingly, Pineda-Oyuela’s conviction and sentence are AFFIRMED.
We REMAND the case to the district court for the limited purpose of reforming
the judgment to reflect Pineda-Oyuela’s conviction under § 1326(b)(1).




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