     Case: 15-10096      Document: 00513558041         Page: 1    Date Filed: 06/21/2016




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

                                    No. 15-10096                            FILED
                                  Summary Calendar                      June 21, 2016
                                                                       Lyle W. Cayce
                                                                            Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE MEDRANO-CAMARILLO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:14-CR-93-1


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Jose Medrano-Camarillo pleaded guilty to illegally reentering the United
States after previously having been removed and was sentenced within the
Guidelines to 60 months of imprisonment. He argues that the district court
plainly erred in entering judgment under 8 U.S.C. § 1326(b)(2), which provides
a statutory maximum term of imprisonment of 20 years for an alien whose
prior removal was subsequent to a conviction for an “aggravated felony,” as


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 15-10096

that term is defined in 8 U.S.C. § 1101(a)(43)(F). If the alien’s prior removal
was subsequent to a conviction for a felony, as opposed to an aggravated felony,
then § 1326(b)(1)’s ten-year statutory maximum applies.
       Medrano-Camarillo argues that his prior Texas conviction for
aggravated assault with a deadly weapon, for which he received four years
deferred adjudication of probation, did not qualify as an “aggravated felony”
because his conviction did not result in a term of imprisonment of at least one
year. 1 He seeks that his case be remanded to the district court for resentencing
or, alternatively, for reformation of the judgment. The Government concedes
the error but contends that remand for resentencing is improper because
Medrano-Camarillo failed to show that the error affected his substantial
rights.
       Because Medrano-Camarillo did not object on this basis in the district
court, review is for plain error only. See United States v. Mondragon-Santiago,
564 F.3d 357, 368 (5th Cir. 2009). To establish plain error, he must show a
forfeited error that is clear or obvious and that affected his substantial rights.
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 affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
       We agree that the district court committed clear or obvious error in
entering judgment under § 1326(b)(2).              When a court places a defendant
directly on probation, it has not imposed a “term of imprisonment” within the


       1 The issue whether Medrano-Camarillo’s prior offense is an aggravated felony hinges
on whether a term of imprisonment was imposed and not on whether the offense is a crime
of violence as defined in 18 U.S.C. § 16(a) & (b). Additionally, Medrano-Camarillo
acknowledges that his prior conviction qualifies as an enumerated offense for purposes of the
16-level crime-of-violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that there
was no error in the application of the enhancement. See United States v. Ramirez, 367 F.3d
274, 277-78 (5th Cir. 2004). As Medrano-Camarillo asserts, the Supreme Court’s recent
decision in Johnson v. United States, 135 S. Ct. 2551 (2015), is not implicated in this appeal.


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                                 No. 15-10096

meaning of § 1101(a)(43)(F).     Mondragon-Santiago, 564 F.3d at 368-69.
Accordingly, because deferred adjudication probation in Texas does not impose
a sentence of imprisonment, Medrano-Camarillo’s prior Texas conviction
cannot be considered an aggravated felony under § 1326(b)(2). See id.
      In any event, nothing in the record suggests that the error influenced the
district court’s sentencing decision. Because the error did not affect Medrano-
Camarillo’s substantial rights, resentencing is not warranted. See id. at 369.
      Nevertheless, because the judgment erroneously reflects that Medrano-
Camarillo was convicted under § 1326(b)(2), and because that designation has
potential immigration consequences, remand for reformation of the judgment
is proper.   Accordingly, Medrano-Camarillo’s conviction and sentence are
AFFIRMED.      We REMAND the case to the district court for the limited
purpose of reforming the judgment to reflect the correct statute of conviction.




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