     Case: 18-11191      Document: 00514985012         Page: 1    Date Filed: 06/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-11191                      United States Court of Appeals

                                  Summary Calendar
                                                                               Fifth Circuit

                                                                             FILED
                                                                          June 5, 2019

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
                                                 Plaintiff-Appellee,

v.

YONI CASTRO-LOPEZ,

                                                 Defendant-Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-50-1


Before JONES, HIGGINSON, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Yoni Castro-Lopez pleaded guilty to illegal reentry after deportation, in
violation of 8 U.S.C. § 1326(a), (b)(1), and (b)(2), and was sentenced to 22
months of imprisonment and a two-year term of supervised release. Castro-
Lopez raises two arguments on appeal.               He correctly concedes that one
argument he raises—that his sentence violated due process because it




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11191    Document: 00514985012     Page: 2   Date Filed: 06/05/2019


                                 No. 18-11191

exceeded the statutory maximum charged in the indictment—is foreclosed
under Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998).
      His other argument, however, is not foreclosed. Castro-Lopez contends
that the district court plainly erred by stating in the judgment that his
conviction was punishable under § 1326(b)(2), rather than under § 1326(b)(1),
because his prior Texas conviction for burglary of a habitation was not an
aggravated felony for purposes of § 1326(b)(2). He requests modification of the
judgment accordingly. To show plain error, he must show a forfeited error that
is clear or obvious and that affects his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error “if the error seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (internal quotation
marks and brackets omitted).
      In sentencing Castro-Lopez pursuant to § 1326(b)(2), the district court
necessarily relied on the now-unconstitutional definition of “aggravated felony”
found in 18 U.S.C. § 16(b). See United States v. Godoy, 890 F.3d 531, 542 (5th
Cir. 2018); United States v. Herrold, 883 F.3d 517, 536–37 (5th Cir. 2018)
(en banc). Accordingly, the designation in the written judgment indicating
that Castro-Lopez was convicted and sentenced under § 1326(b)(2) was
erroneous and should be reformed as Castro-Lopez requests. See Godoy, 890
F.3d at 542; United States v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir.
2009). We therefore MODIFY the district court’s judgment to reflect that
Castro-Lopez was sentenced according to § 1326(b)(1), and we AFFIRM the
judgment AS MODIFIED.




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