     Case: 17-11355      Document: 00514613052         Page: 1    Date Filed: 08/23/2018




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

                                    No. 17-11355                                FILED
                                  Summary Calendar                        August 23, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JIMMY WALTER FUENTES,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-59-1


Before DAVIS, HAYNES and GRAVES, Circuit Judges.
PER CURIAM: *
       Jimmy Walter Fuentes pleaded guilty to illegal reentry into the United
States, in violation of 8 U.S.C. § 1326(a), (b)(1), and was sentenced to 30
months of imprisonment. On appeal, Fuentes argues that the district court’s
judgment incorrectly reflected that he violated § 1326(b)(2). Thus, he claims
that the court believed the statutory maximum sentence to be 20 years, rather
than 10 years, and there was “a reasonable probability of a different outcome”


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11355     Document: 00514613052      Page: 2    Date Filed: 08/23/2018


                                  No. 17-11355

had the court known of the correct statutory maximum. The Government
argues that the record does not show that any incorrect understanding of the
statutory maximum influenced the court’s sentence, but it concedes that the
judgment incorrectly reflects that Fuentes violated § 1326(b)(2). Accordingly,
it asks this court to reform the judgment to show that Fuentes was convicted
under § 1326(b)(1).
      Because Fuentes did not object to the judgment’s reference to
§ 1326(b)(2), this court’s review is for plain error.       See United States v.
Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). To establish plain
error, Fuentes must show a forfeited error that is clear or obvious and that
affected 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 affects the fairness, integrity, or public reputation
of judicial proceedings. Id. The parties do not dispute that the court plainly
erred by referencing § 1326(b)(2) in the judgment. As for whether the error
affected Fuentes’s substantial rights, nothing in the record suggests that the
20-year maximum sentence for a violation of § 1326(b)(2) influenced the district
court’s sentencing decision. Moreover, Fuentes’s 30-month sentence did not
exceed the 10-year statutory maximum under § 1326(b)(1). See Mondragon-
Santiago, 564 F.3d at 366-69.
      Accordingly, the judgment is AFFIRMED but REFORMED to reflect
conviction and sentencing under § 1326(b)(1).




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