     Case: 12-40837       Document: 00512165914         Page: 1     Date Filed: 03/06/2013




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

                                                                            FILED
                                                                           March 6, 2013
                                     No. 12-40837
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

FAUSTO ORTIZ-CUEVAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-159-1


Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges.
PER CURIAM:*
       Fausto Ortiz-Cuevas asserts for the first time on appeal that the district
court erroneously convicted and sentenced him to 24 months in prison under 8
U.S.C. § 1326(b)(2), which carries a statutory maximum term of imprisonment
of 20 years. We agree that Ortiz-Cuevas’s prior New Jersey conviction for
assault with a deadly weapon was not an aggravated felony for purposes of
subsection (b)(2) because his sentence was less than one year in prison. See 8
U.S.C. § 1101(a)(43)(F); United States v. Mondrago-Santiago, 564 F.3d 357, 368-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-40837    Document: 00512165914     Page: 2   Date Filed: 03/06/2013

                                 No. 12-40837

69 (5th Cir. 2009). His conduct in this case violated § 1326(b)(1), which carries
a statutory maximum prison term of 10 years. See § 1326(b)(1); Mondragon-
Santiago, 564 F.3d at 368-69.
      Ortiz-Cuevas contends that the district court’s error in assessing the
statutory sentencing range was a factor in the court’s sentencing decision that
requires resentencing. However, plain error review applies, and Ortiz-Cuevas
cannot meet his burden of proving that the error affected his substantial rights,
as he was sentenced well under the 10-year statutory maximum and nothing
suggests § 1326(b)(2) was a factor. See Mondragon-Santiago, 564 F.3d at 368-69.
Nevertheless, as in Mondragon-Santiago, we “reform the judgment to reflect the
correct statutory subsection.” Id. at 369.
      AFFIRMED, with the judgment REFORMED to reflect conviction and
sentencing under 8 U.S.C. § 1326(b)(1).




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