     Case: 10-50352     Document: 00511708680         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011
                                     No. 10-50352
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANTONIO DURAN-VILLAGRAN, also known as Juan Moreno, also known as
Antonio Duran, also known as Antonio Duran-Villagrana,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:09-CR-2908-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Antonio Duran-Villagran appeals from his conviction of illegal reentry
after being deported.          He argues that his prior Texas conviction for
manufacture/delivery of a controlled substance by actual transfer and by offering
to sell was not an aggravated felony and that the district court therefore plainly
erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2), which provides for a




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-50352    Document: 00511708680        Page: 2   Date Filed: 12/28/2011

                                  No. 10-50352

20-year maximum statutory sentence, instead of § 1326(b)(1), which provides for
a 10-year statutory maximum sentence.
      Because Duran-Villagran did not challenge being sentenced under
§ 1326(b)(2) in the district court, the question whether the district court erred
in sentencing him under that subsection is reviewed for plain error. Puckett v.
United States, 129 S. Ct. 1423, 1428 (2009). To show plain error, he must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Id. at 1429. If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      Duran-Villagran’s prior Texas conviction for manufacture/delivery of a
controlled substance by actual transfer and by offering to sell was not an
aggravated felony under 8 U.S.C. § 1101(a)(43).             See United States v.
Morales-Martinez, 496 F.3d 356, 358-60 (5th Cir. 2007). Therefore, it was error
for the district court to find that his statutory maximum sentence was 20 years
pursuant to § 1326(b)(2).
      But the record does not indicate that the district court’s error affected
Duran-Villigran’s substantial rights.         First, his sentence—57 months—fell
within the properly calculated guidelines range of 57 to 71 months, and the
district court’s error did not affect the properly calculated guidelines range. See
U.S.S.G. § 2L1.2(b)(1)(A). Second, his sentence fell within the proper 10-year
statutory maximum, and there is no evidence in the record that the district
court’s belief that the statutory maximum was 20 years affected its decision to
sentence Duran-Villagran to 57 months in prison. Accordingly, he has failed to
demonstrate reversible plain error. See United States v. Mondragon-Santiago,
564 F.3d 357, 369 (5th Cir. 2009).
      Duran-Villagran also argues that a remand is required so that the
judgment can be corrected to reflect that he was convicted and sentenced under
§ 1326(b)(1). The district court’s judgment, however, was not incorrect: it

                                          2
  Case: 10-50352    Document: 00511708680     Page: 3   Date Filed: 12/28/2011

                                 No. 10-50352

indicated that Duran-Villagran had been convicted and sentenced under “8
U.S.C. [§] 1326.” Duran-Villagran has not demonstrated that this court should
remand for a correction of a clerical error in the judgment; he likewise has not
shown that this court should reform the judgment. See FED. R. CRIM. P. 36;
Mondragon-Santiago, 564 F.3d at 369.         The district court’s judgment is
AFFIRMED.




                                       3
