     Case: 09-40776     Document: 00511140510          Page: 1    Date Filed: 06/14/2010




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

                                                 FILED
                                                                            June 14, 2010
                                     No. 09-40776
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

BRIGHT UGIAGBE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 5:09-CR-507-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Bright Ugiagbe appeals from his conviction for being illegally present in
the United States after having been deported.                 He contends that he was
improperly convicted under 8 U.S.C. § 1326(b)(2) instead of § 1326(b)(1) because
his 1995 Florida conviction for aggravated battery was not an “aggravated
felony” under 8 U.S.C. § 1101(a)(43)(F). Ugiagbe argues that the error affected
his sentence because it raised the statutory maximum from ten to twenty years,



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40776    Document: 00511140510 Page: 2       Date Filed: 06/14/2010
                                 No. 09-40776

which may have influenced the district court’s decision to sentence him to forty-
one months.
      Since Ugiagbe did not raise this argument in the district court, our review
is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
360)61 (5th Cir. 2009). To show plain error, Ugiagbe must show a forfeited
error that is clear or obvious and that affects his substantial rights. Puckett v.
United States, 129 S. Ct. 1423, 1429 (2009).
      Ugiagbe’s 1995 Florida conviction was not an aggravated felony under
§ 1101(a)(43)(F) because it carried no sentence of imprisonment.              See
Mondragon-Santiago, 564 F.3d at 368)69; see also Singh v. U.S. Att’y Gen., 561
F.3d 1275, 1280 (11th Cir. 2009) (holding that aggravated felony did not exist
until alien’s sentence to community control was revoked and term of
imprisonment imposed). Thus, it was error to convict and sentence Ugiagbe
under § 1326(b)(2). However, the record does not indicate that the district
court’s error affected Ugiagbe’s substantial rights.       Whether the Florida
conviction was a felony or an aggravated felony did not affect the Guideline
range, and the district court, after an extensive discussion with Ugiagbe at the
sentencing hearing, sentenced him to the lowest within-range sentence. There
is no indication in the record that the statutory maximum played any role in the
district court’s decision. Therefore, Ugiagbe has failed to demonstrate reversible
plain error. See Mondragon-Santiago, 564 F.3d at 369. We do, however, reform
the judgment of the district court to indicate that Ugiagbe was sentenced under
§ 1326(b)(1) instead of § 1326(b)(2). See id.
      Even though Ugiagbe’s sentence is at the bottom of the correctly calculated
sentencing range, he contends that the sentence is substantively unreasonable.
He contends that the district court failed to give sufficient effect to his duress
argument by conflating duress as a defense to the commission of an offense and
duress as a mitigating factor at sentencing. He asserts that even incomplete or
imperfect duress may serve as a basis for a downward departure pursuant to

                                        2
   Case: 09-40776    Document: 00511140510 Page: 3        Date Filed: 06/14/2010
                                 No. 09-40776

U.S.S.G. § 5K2.12.     According to Ugiagbe, his sentence was substantively
unreasonable because the district court failed to give mitigating effect to his
experiences in Nigeria.
      Under the now-discretionary guidelines scheme, the sentencing court has
a duty to consider the factors of 18 U.S.C. § 3553(a) and to correctly determine
the applicable guidelines range. United States v. Mares, 402 F.3d 511, 520 (5th
Cir. 2005). Following Gall v. United States, 552 U.S. 38, 49)50 (2007), we must
determine whether the sentence imposed is procedurally sound, including
whether the calculation of the advisory guidelines range is correct, and whether
the sentence imposed is substantively reasonable.        Review is for abuse of
discretion. Gall, 552 U.S. at 51.
      Ugiagbe concedes that the Guideline range was properly calculated and
that he was sentenced within the range.         “[A] sentence within a properly
calculated Guideline range is presumptively reasonable.”         United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006). This court “will give great deference
to that sentence” and “will infer that the judge has considered all the factors for
a fair sentence set forth in the Guidelines.” Mares, 402 F.3d 519)20.
      The district court did not minimize Ugiagbe’s argument for a departure or
variance based on events in Nigeria, nor did it conflate duress as a defense and
duress as a sentencing factor. The district court simply did not believe that
Ugiagbe could escape Nigeria only by fleeing to the United States, from whence
he already had been deported, or that the only way he could reach Canada was
by traversing the United States. Indeed, Ugiagbe flew from Nigeria to Brazil,
then entered the United States from Mexico, having to cross through several
countries along the way. His testimony that he could get to Spain only on a
wooden boat due to his inability to obtain a Spanish visa also strains credulity.
      The district court considered Ugiagbe’s reasons for a lower sentence and
explained why it discredited them. See Rita v. United States, 551 U.S. 338,
356)57 (2007) (suggesting that district courts should explain why nonfrivolous

                                        3
  Case: 09-40776    Document: 00511140510 Page: 4      Date Filed: 06/14/2010
                                No. 09-40776

departure arguments are rejected). Ugiagbe has failed to rebut the presumption
of reasonableness accorded his within-range sentence. See Alonzo, 435 F.3d at
554. Therefore, we hold that the district court did not abuse its discretion by
imposing the forty-one month sentence. See Gall, 552 U.S. at 51.
      AFFIRMED. JUDGMENT REFORMED TO INDICATE THAT UGIAGBE
WAS SENTENCED PURSUANT TO 8 U.S.C. § 1326(b)(1).




                                      4
