     Case: 11-20741     Document: 00511999683         Page: 1     Date Filed: 09/26/2012




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

                                                                            FILED
                                                                        September 26, 2012

                                       No. 11-20741                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff - Appellee
v.

ROBERTO RODRIGUEZ ARIAS,
also known as Roberto Rodriguez,
also known as Roberto Rodriguez-Arias

                                           Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-127-1


Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.
PER CURIAM:*
        The court has considered this appeal on the basis of the briefs and the
record and AFFIRMS the conviction and sentence but REMANDS the judgment
solely to reform the identity of the statute under which the defendant was
convicted.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20741   Document: 00511999683      Page: 2   Date Filed: 09/26/2012




                                  No. 11-20741

      Following the precedent set forth in United States v. Mondragon-Santiago,
564 F.3d 357 (5th Cir. 2009), the offense here was a § 1326(b)(1) violation rather
than a § 1326(b)(2) violation. The original imposition of deferred adjudication
probation, albeit for aggravated assault with a deadly weapon, did not qualify
as an offense with a term of imprisonment of one year or more. Therefore, the
defendant was guilty of a pre-deportation felony rather than a pre-deportation
aggravated felony. While the current case has the additional concern of the
defendant’s probation being revoked after he was deported and illegally re-
entered, the government’s relation-back argument is without merit. The later
probation revocation is irrelevant to the application of § 1326. The conviction
giving rise to a § 1326 count must be evaluated at the time of deportation, not
following removal. This error was plain, and its correction amounts to little
more than a clerical alteration of the conviction records.
      The sentence imposed by the district court, however, took mitigating
factors into account to justify a downward departure from the sentencing
guidelines and was reasonable with respect to the violation actually committed—
§ 1326(b)(1). The sentence is therefore left undisturbed.
      The conviction and sentence are AFFIRMED, but the case is
REMANDED for reformation of the conviction statute in the district court
records.




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