     Case: 10-41317     Document: 00511609930         Page: 1     Date Filed: 09/22/2011




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

                                                                            FILED
                                                                        September 22, 2011
                                     No. 10-41317
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ALBERTO DE LOS SANTOS-VALLEJO,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:10-CR-572-1


Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
        After entering a plea agreement, Jose Alberto De Los Santos-Vallejo was
convicted of illegal reentry and was sentenced to 37 months of imprisonment and
two years of supervised release.           De Los Santos-Vallejo now appeals the
judgment of the district court and requests that this court order the modification
of his presentence report (PSR), which incorrectly concluded that De Los Santos-
Vallejo’s statutory maximum term of imprisonment was 20 years, implying that
he should be sentenced pursuant to 8 U.S.C. § 1326(b)(2) rather than

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41317   Document: 00511609930     Page: 2   Date Filed: 09/22/2011

                                 No. 10-41317

§ 1326(b)(1), and of the judgment, which merely cites § 1326(b) in reference to
De Los Santos-Vallejo’s punishment. De Los Santos-Vallejo concedes that he did
not object on these grounds in the district court. The Government agrees that
the judgment should be modified.
      Because De Los Santos-Vallejo did not object in the district court, we
review for plain error his argument that the PSR should be modified. A plain
error is a forfeited error that is clear or obvious and affects the defendant’s
substantial rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir.), cert.
denied, 130 S. Ct. 371 (2009). When those elements are shown, this court has
the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
and citation omitted).
      We decline to order the modification of the PSR, as De Los Santos-Vallejo
has not demonstrated that the error therein affects his substantial rights.
However, the judgment is modified to reflect that De Los Santos-Vallejo was
sentenced pursuant to § 1326(b)(1). See United States v. Mondragon-Santiago,
564 F.3d 357, 369 (5th Cir. 2009).
      AFFIRMED AS MODIFIED.




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