     Case: 11-40794     Document: 00511815561         Page: 1     Date Filed: 04/09/2012




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

                                                                            FILED
                                                                            April 9, 2012
                                     No. 11-40794
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE ALBERTO ROMERO-SANCHEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:11-CR-281-1


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Jose Alberto Romero-Sanchez appeals the 45-month within-guidelines
sentence imposed in connection with his conviction for illegal reentry following
deportation. He argues that the district court plainly erred by entering a
judgment that reflected a conviction under 8 U.S.C. § 1326(b)(2) when he did not
have a prior conviction that qualified as an aggravated felony under 8 U.S.C.
§ 1101(a)(43)(F). Although he concedes that his sentence does not exceed the
applicable statutory maximum under 8 U.S.C. § 1326(b)(1) and was within the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40794    Document: 00511815561      Page: 2   Date Filed: 04/09/2012

                                  No. 11-40794

applicable guidelines range, Romero-Sanchez argues that the district court’s
mistaken belief that the statutory maximum sentence was 20 years of
imprisonment may have influenced the selection of a sentence. He requests that
the matter be remanded for resentencing. The Government concedes error but
seeks to have the judgment modified to reflect a conviction under § 1326(b)(1).
      Because Romero-Sanchez did not object in the district court on this
ground, we review for plain error. See United States v. Peltier, 505 F.3d 389,
391-92 (5th Cir. 2007). Under the plain error standard, a defendant must show
a clear or obvious error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). We have the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
      Romero-Sanchez’s previous Florida conviction for which he received a
sentence of two years of probation is not an aggravated felony for purposes of
§ 1326(b)(2). See § 1101(a)(43)(F). As both parties agree, the district court erred
in entering a judgment reflecting that Romero-Sanchez was convicted under
§ 1326(b)(2). United States v. Mondragon-Santiago, 564 F.3d 367, 368-69 (5th
Cir. 2009). However, there is no evidence in the record that the district court’s
sentence was influenced by an incorrect understanding of the statutory
maximum sentence. Additionally, Romero-Sanchez’s sentence was below the 10-
year statutory maximum of § 1326(b)(1) and was within the correct guidelines
range. He does not show that his substantial rights were affected by the district
court’s error. See Mondragon-Santiago, 564 F.3d at 369.
      The judgment is the district court is AFFIRMED but REFORMED to
reflect a conviction and sentence under 8 U.S.C. § 1326(b)(1). See id.




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