     Case: 16-10208      Document: 00513807933         Page: 1    Date Filed: 12/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 16-10208
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                        December 21, 2016
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

MISAEL TELLEZ-SOLORZANO,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-361-1


Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
       Misael Tellez-Solorzano appeals the 78-month sentence imposed
following his guilty plea conviction of illegal reentry in violation of 8 U.S.C.
§ 1326.    He argues that, because he was originally sentenced to deferred
adjudication for his 2006 Texas kidnapping offense, he does not have a prior
aggravated felony conviction and was, therefore, improperly sentenced under
§ 1326(b)(2). He also argues that, because the indictment failed to charge a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10208     Document: 00513807933      Page: 2    Date Filed: 12/21/2016


                                  No. 16-10208

prior conviction, his sentence violates the statutory maximum sentence
allowed by § 1326(a). He correctly concedes that this argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239 (1998), but he
raises it to preserve it for further review.
      Because Tellez-Solorzano did not object in the district court to the use of
his 2006 kidnapping conviction as a basis for applying § 1326(b)(2), review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). Tellez-Solorzano must show a forfeited error that is clear or
obvious and affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error, but only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
      A term of deferred adjudication probation in Texas does not count as a
term of imprisonment for purposes of § 1326(b)(2). Mondragon-Santiago, 564
F.3d at 368-69. Unlike in Mondragon-Santiago, however, Tellez-Solorzano’s
deferred adjudication was revoked, and, by the time of Tellez-Solorzano’s 2013
removal, he had been adjudicated guilty of kidnapping and sentenced to a
three-year prison term. Therefore, the district court did not commit error,
plain or otherwise, by sentencing him under § 1326(b)(2). See United States v.
Gracia-Cantu, 302 F.3d 308, 311 (5th Cir. 2002).
      AFFIRMED.




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