     Case: 11-41318     Document: 00511926782         Page: 1     Date Filed: 07/19/2012




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

                                                                            FILED
                                                                            July 19, 2012
                                     No. 11-41318
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JULIO CESAR REYES-GUTIERREZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1125-1


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Julio Cesar Reyes-Gutierrez appeals from his conviction and sentence for
being illegally present in the United States after having been deported. He
contends that he was improperly convicted under 8 U.S.C. § 1326(b)(2) instead
of § 1326(b)(1) because his 2003 Florida conviction for aggravated battery was
not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). Reyes-Gutierrez
argues that the error may have affected his sentence because it raised the



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-41318    Document: 00511926782      Page: 2   Date Filed: 07/19/2012

                                  No. 11-41318

statutory maximum from ten to twenty years, which may have influenced the
district court’s decision to sentence him to 46 months of imprisonment.
      Because Reyes-Gutierrez did not raise this argument in the district court,
our review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d
357, 360-61 (5th Cir.2009). To show plain error, Reyes-Gutierrez must show a
forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 134-35 (2009).
      Reyes-Gutierrez’s 2003 Florida conviction for aggravated battery was not
an aggravated felony under § 1101(a)(43)(F) because it carried a term of
imprisonment of less than one year. See Mondragon-Santiago, 564 F.3d at
368-69; see also Singh v. U.S. Att’y Gen., 561 F.3d 1275, 1280 (11th Cir. 2009)
(holding that aggravated felony did not exist until alien’s sentence to community
control was revoked and term of imprisonment imposed). Thus, it was error to
convict and sentence Reyes-Gutierrez under § 1326(b)(2). However, as Reyes-
Gutierrez so concedes, the record does not indicate that the district court’s error
affected his substantial rights. Whether the Florida conviction was a felony or
an aggravated felony did not affect the guideline range, and the district court,
after a discussion at the sentencing hearing about the seriousness of his prior
offense and his inability to abide by the conditions of his lenient sentence,
sentenced him to the lowest sentence in the advisory guideline sentencing range
after denying his request for a downward variance. There is no indication in the
record that the statutory maximum played any role in the district court’s
decision. Therefore, Reyes-Gutierrez has failed to demonstrate reversible plain
error. See Mondragon-Santiago, 564 F.3d at 369.
      Reyes-Gutierrez argues, and the government agrees, that the judgment
should be reformed to reflect that he was convicted and sentenced under
§ 1326(b)(1). Accordingly, we REFORM the district court’s judgment to reflect
conviction and sentencing under § 1326(b)(1), and AFFIRM the judgment as
reformed. See id.

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