     Case: 11-30022     Document: 00511654263         Page: 1     Date Filed: 11/03/2011




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

                                                                            FILED
                                                                         November 3, 2011
                                     No. 11-30022
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

HECTOR BARRAGAN-ESPINO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 5:08-CR-121-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Hector Barragan-Espino (Barragan) appeals from the three-year term of
supervised release imposed by the district court in addition to his 24-month
prison sentence following his conviction for illegal reentry. He does not contest
the concurrent 300-month term of imprisonment and eight-year term of
supervised release imposed as a result of his conviction of possession with intent
to distribute a substance containing methamphetamine.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30022    Document: 00511654263      Page: 2    Date Filed: 11/03/2011

                                  No. 11-30022

      Although Barragan contends that we should review under a de novo
standard, his failure to object in the district court warrants plain error review.
United States v. Williams, 602 F.3d 313, 318-19 (5th Cir.), cert. denied, 131 S. Ct.
597 (2010). To show plain error, the appellant must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such
a showing, this court may correct the error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id.
      As the government concedes, the district court committed error that is
clear or obvious because the maximum term of supervised release applicable to
Barragan’s 8 U.S.C. § 1326(a) conviction is one year. See 18 U.S.C. §§ 3581(b)(5)
and 3583(b)(3). Although the government argues that Barragan fails to show
that his substantial rights have been violated or that the error affected the
fairness of the proceedings, we have taken “a generally permissive approach to
both the prejudice and fairness prongs of plain error review.” Williams, 602 F.3d
at 319 (internal quotation marks and citation omitted). This court on several
occasions has held that a sentence which exceeds the statutory maximum
constitutes plain error, and we reach the same conclusion here. See Williams,
602 F.3d at 319-20; United States v. Rojas-Luna, 522 F.3d 502, 506-07 (5th Cir.
2008); United States v. Moreci, 283 F.3d 293, 300 (5th Cir. 2002).
      Because Barragan faces a greater concurrent term of supervised release
on his drug conviction such that a modification does not affect the overall terms
of his supervised release, we MODIFY Barragan’s sentence on his § 1326(a)
conviction to reflect a one-year term of supervised release and AFFIRM his
sentence as modified.




                                         2
