   Case: 11-20375       Document: 00511949332         Page: 1     Date Filed: 08/08/2012




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

                                                                            FILED
                                                                           August 8, 2012
                                       No. 11-20375
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

MARTIN HERMOSO, also known as Martin S. Hermoso, also known as
Martin Hermoso-Sedano, also known as Martin Sedano Hermoso,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:10-CR-451




Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*


       Martin Hermoso pleaded guilty of being found illegally present in the
country after having been previously deported for committing an aggravated fel-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20375

ony in violation of 8 U.S.C. § 1326(a) and (b)(2). He appeals the sentence, and
we affirm.


                                        I.
      The district court adopted the presentence report (“PSR”), which noted
that, under 8 U.S.C. § 1326(b)(2), the conviction carried a maximum term of 20
years. The PSR correctly calculated that Hermoso’s sentencing guideline range
was 41-51 months, but the district court gave 40 months. Hermoso argues that
the district court erroneously convicted him of being illegally present after hav-
ing committed an aggravated felony under 8 U.S.C. § 1326(b)(2), because his six-
month Ohio conviction of gross sexual imposition does not qualify as an
aggravated felony under the statute. Instead, Hermoso argues, he should have
been convicted under subsection (b)(1) of that statute, a different penalty
provision for the same crime. Because Hermoso did not raise this objection in
the district court, our review is for plain error. United States v. Delgado, 672
F.3d 320, 328 (5th Cir. 2012) (en banc).


                                       II.
      As the government concedes, Hermoso’s conviction under OHIO REV. CODE
§ 2907.05(A)(1) does not qualify as an aggravated felony for purposes of 8 U.S.C.
§ 1326(b)(2), because 8 U.S.C. § 1101(a)(43)(F) defines an “aggravated felony,”
as relevant to this case, as a crime of violence for which the term of imprison-
ment is at least one year, whereas Hermoso’s conviction of gross sexual imposi-
tion carried a term of only six months. Nor does Hermoso’s conviction qualify as
an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), because the Ohio offense
cannot be categorically defined as “murder, rape, or sexual abuse of a minor.”
The Ohio Code § 2907.05(A)(1) criminalizes “sexual contact with another”
where“[t]he offender purposely compels the other person . . . to submit by force

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                                        No. 11-20375

or threat of force.” The Ohio Code defines “sexual contact” as “touching of an
erogenous zone of another, including without limitation the thigh, genitals,
buttock, pubic region, or, if the person is a female, a breast, for the purpose of
sexually arousing or gratifying either person.” OHIO REV. CODE § 2907.01(B).
Thus, the statutory provision under which Hermoso was convicted cannot be
said categorically to be “rape” or “sexual abuse of a minor.”1
       Accordingly, Hermoso should have been convicted under 8 U.S.C. § 1326-
(b)(1), which criminalizes being unlawfully present after having committed a
“felony (other than an aggravated felony),” rather than under § 1326(b)(2). Sub-
section (b)(1) imposes a maximum sentence of 10 years, and subsection (b)(2)
imposes a maximum of 20 years. Nevertheless, the guidelines calculation in the
PSR and accepted by the district courtSS41-51 monthsSSremains unchanged, and
the below-guideline sentence of 40 months is well below the 10-year maximum
penalty under the correct statutory provision. Thus, although Hermoso has
shown clear and obvious error, he correctly concedes that the error likely did not
affect his sentence and thereby his substantial rights, so this issue fails on the
third prong of plain error review.2
       Despite acknowledging that resentencing is inappropriate, Hermoso asks
us to remand for reformation of the judgment to reflect conviction of the correct
crime, noting that being convicted under subsection (b)(2) rather than (b)(1)
carries a greater stigma and possibility of greater future punishment if convicted


       1
         See Perez-Gonalzez v. Holder, 667 F.3d 622, 625-27 (5th Cir. 2012) (narrowly defining
rape for purposes of § 1101(a)(43)(A), specifically not including digital penetration); cf. OHIO
REV. CODE § 2907.01(A) (defining “[s]exual conduct” as “vaginal intercourse between a male
and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and,
without privilege to do so, the insertion, however slight, of any part of the body or any instru-
ment, apparatus, or other object into the vaginal or anal opening of another. Penetration,
however slight, is sufficient to complete vaginal or anal intercourse.”).
       2
       Puckett v. United States, 556 U.S. 129, 135 (2009); see United States v. Mondragon-
Santiago, 564 F.3d 357, 369 (5th Cir. 2009).

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                                       No. 11-20375

of another crime.3 Even on plain-error review, we have corrected such errors in
the judgment, either by directing the district court to do so on remand4 or by
amending the judgment ourselves.5 The parties dispute which course we should
take. By statute this court can “affirm, modify, vacate, set aside or reverse any
judgment, decree, or order of a court lawfully brought before it for review, and
may remand the cause and direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to be had as may be just
under the circumstances.” 28 U.S.C. § 2106. The best reading of the statute
confers discretion either to reform the judgment or to remand for the district to
do so.
         We choose the former. The judgment of sentence is AFFIRMED as modi-
fied to reflect a conviction under 8 U.S.C. § 1326(b)(1).




         3
         See 8 U.S.C. § 1101(a)(43)(O) (considering a conviction for a § 1326 violation on the
basis of an aggravated felony as itself an aggravated felony).
         4
         See, e.g., United States v. Garcia-Ramirez, 379 F. App’x 374, 376 (5th Cir.), cert.
denied, 131 S. Ct. 369 (2010); United States v. Jimenez-Laines, 342 F. App’x 978, 979 (5th Cir.
2009); United States v. Gutierrez-Garrido, 75 F. App’x 231, 231-32 (5th Cir. 2003).
         5
        See, e.g., Mondragon-Santiago, 564 F.3d at 369; United States v. Rosales-Velasquez,
307 F. App’x 832, 833-34 (5th Cir. 2009); United States v. Campos, 277 F. App’x 505, 506 (5th
Cir. 2008).

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