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

                                                 FILED
                                                                            June 24, 2009
                                     No. 08-40773
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

MOISES ARON RODRIGUEZ-FUNEZ,

                                                   Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:07-CR-1307-1


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       Moises Aron Rodriguez-Funez was convicted of one count of illegal reentry
into the United States and was sentenced to serve 37 months in prison.
Rodriguez-Funez appeals his sentence. He argues that he should be resentenced
because the district court erroneously believed that his prior conviction was for
an aggravated felony. He concedes that this claim is reviewed for plain error
only due to his failure to raise it in the district court.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-40773

      A review of the record shows that the same sentence could be imposed
upon Rodriguez-Funez if this case were remanded for resentencing. This review
likewise does not show that it is reasonably probable that Rodriguez-Funez
would have received a different sentence but for the district court’s erroneous
belief concerning his prior conviction. Consequently, Rodriguez-Funez has not
shown plain error in connection with his sentence, nor has he established that
he should receive relief on this claim. See Puckett v. United States, 129 S. Ct.
1423, 1429 (2009); United States v. Jones, 444 F.3d 430, 437-38 (5th Cir. 2006).
The judgment of the district court is AFFIRMED.




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