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

                                                 FILED
                                                                         November 17, 2009
                                     No. 09-40225
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE SANTOS HERNANDEZ-MUNIZ,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:08-CR-455-1


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Jose Santos Hernandez-Muniz appeals the 65-month sentence imposed
following his guilty plea conviction for transportation of an alien in violation of
8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(ii). Hernandez-Muniz was sentenced to a
concurrent term of 65 months in prison in connection with his guilty plea to
illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b).
       Because Hernandez-Muniz failed to raise his challenge to his sentence
before the district court, our review is for plain error. To show plain error,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40225

Hernandez-Muniz must show an error that is clear or obvious and that affects
his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009); see Puckett v. United States, 129 S. Ct. 1423,
1428 (2009). If he makes such a showing, we have the discretion to correct the
error but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Baker, 538 F.3d at 332.
      The maximum term of imprisonment allowed for a violation of
§1324(a)(1)(A)(ii) and (v)(ii) is five years. The presentence report mistakenly
stated that the statutory maximum was 10 years of imprisonment. As the
Government      concedes,   Hernandez-Muniz’s      sentence    of   65   months    of
imprisonment for transporting an alien exceeds the 60-month maximum and
constitutes plain error that affects his substantial rights and affects the fairness,
integrity, and public reputation of the judicial proceedings. See United States
v. Coil, 442 F.3d 912, 914 (5th Cir. 2006). Accordingly, we modify the term of
imprisonment     imposed    for   Hernandez-Muniz’s      conviction   for   violating
§ 1324(a)(1)(A)(ii) and (v)(ii) to 60 months. See United States v. De Jesus-Batres,
410 F.3d 154, 164 (5th Cir. 2005). The modification does not affect the overall
term of imprisonment because Hernandez-Muniz’s concurrent sentence for his
illegal reentry conviction exceeds the modified sentence for his violation of
§ 1324(a)(1)(A)(ii) and (v)(ii). See id.
      MODIFIED IN PART; AFFIRMED AS MODIFIED.




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