     Case: 11-20592       Document: 00512107318         Page: 1     Date Filed: 01/09/2013




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

                                                                            FILED
                                                                          January 9, 2013
                                     No. 11-20592
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ELMER ALEXANDER FUENTES, also known as Elmer Alexander Fuentez,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-199-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Elmer Alexander Fuentes appeals the sentence imposed following his
guilty plea conviction for being found unlawfully in the United States after
deportation following a prior aggravated felony conviction in violation of 8 U.S.C.
§ 1326(a) and (b)(2). He contends that the district court plainly erred when it
enhanced his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(B) based on a finding
that his 1999 Texas conviction for delivery of less than one gram of cocaine was
a felony drug trafficking offense for which the sentence imposed was 13 months

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-20592

or less. Specifically, he argues that the § 2L1.2(b)(1)(B) enhancement did not
apply because the inclusion of offers to sell in § 2L1.2’s definition of a “drug
trafficking offense” does not support longer sentences when the prior conviction
does not meet the statutory definition of a “drug trafficking crime” for purposes
of 8 U.S.C. § 1101(a)(43)(B). Fuentes’s argument is foreclosed by United States
v. Marban-Calderon, 631 F.3d 210, 212-13 (5th Cir.), cert. denied, 132 S. Ct. 129
(2011).
      Fuentes also contends that the district court plainly erred when it
determined that his 1999 Texas conviction for delivery of less than one gram of
cocaine qualified as an aggravated felony for purposes of § 1326(b)(2). Because
he did not object to the district court’s application of § 1326(b)(2), we review for
plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th
Cir. 2009).
      As Fuentes contends, his 1999 Texas conviction for delivery of less than
one gram of cocaine was not an aggravated felony for purposes of § 1326(b)(2),
and the district court committed error that was clear or obvious when it
determined that he was subject to a 20-year statutory maximum term of
imprisonment based on that conviction. See United States v. Ibarra-Luna, 628
F.3d 712, 715-16 (5th Cir. 2010). However, Fuentes has failed to demonstrate
that the error affected his substantial rights. His 46-month sentence fell within
the properly calculated guidelines range. See Marban-Calderon, 631 F.3d at
212-13. The sentence was also below the applicable 10-year statutory maximum
term of imprisonment. See § 1326(b)(1); TEX. HEALTH & SAFETY CODE ANN.
§ 481.112(b); TEX. PENAL CODE ANN. § 12.35(a); United States v.
Villegas-Hernandez, 468 F.3d 874, 884 (5th Cir. 2006) (defining a felony as an
offense punishable by more than one year in prison). The record does not
indicate that the sentence was influenced by the district court’s incorrect
understanding of the statutory maximum sentence or that district court would
have been inclined to depart from the 46 to 57-month guidelines range had it

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                                No. 11-20592

known that Fuentes was subject to a 10-year statutory maximum sentence
instead of a 20-year statutory maximum sentence. See Mondragon-Santiago,
564 F.3d at 369. Therefore, there is no plain error that requires us to vacate
Fuentes’s sentence. See id. Consistent with our prior holding in Mondragon-
Santiago, however, Fuentes is entitled to a reformation of the district court’s
judgment to reflect the correct offense of conviction and statutory subsection.
See id. We therefore AFFIRM the district court’s judgment, but REFORM it to
reflect that Fuentes was convicted of illegal reentry after deportation and
sentenced under 8 U.S.C. § 1326(b)(1).




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