     Case: 14-10895      Document: 00513057937         Page: 1    Date Filed: 05/28/2015




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

                                     No. 14-10895
                                                                                    Fifth Circuit

                                                                                  FILED
                                   c/w No. 14-10897                           May 28, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ALEJANDRO LUVIANO,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                            USDC No. 3:10-CR-224-1
                            USDC No. 3:13-CR-486-1


Before JONES, BENAVIDES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Following Alejandro Luviano’s guilty plea to illegal reentry after
deportation, the district court sentenced him to 24 months in prison. The
district court also revoked a term of supervised release that had been imposed
following Luviano’s previous illegal reentry conviction and imposed a
consecutive 24-month sentence. Although he filed notices of appeal in both


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 14-10895
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cases, Luviano’s brief in these consolidated appeals challenges only the 24-
month revocation sentence. He has therefore waived any challenge to his new
illegal reentry conviction and the associated sentence. See United States v.
Thames, 214 F.3d 608, 611 n.3 (5th Cir. 2000).
       On appeal, Luviano asserts that the district court erred in determining
that he had committed “Grade A” violations of his supervised release. He
maintains that neither his new illegal reentry offense nor his Texas conviction
for possession of heroin qualifies as a Grade A violation under U.S.S.G.
§ 7B1.1(a)(1). Luviano concedes that he did not object in the district court to
the categorization of his supervised release violations and that, therefore, plain
error review applies. See United States v. Davis, 602 F.3d 643, 646-47 (5th Cir.
2010). To establish plain error, Luviano must show a forfeited error that is
clear or obvious and that affects his substantial rights. See Puckett v. United
States, 556 U.S. 129, 135 (2009). If he makes such a showing, we have the
discretion to correct the error but will do so only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.
       Luviano is correct in his assertion that his illegal reentry conviction does
not qualify as a Grade A violation. See 8 U.S.C. § 1326(b)(1); § 7B1.1(a)(1).
Additionally, Luviano’s state conviction for simple possession of heroin does
not    constitute      a   “controlled   substance    offense”     for   purposes     of
§ 7B1.1(a)(1)(A)(ii).      See § 7B1.1, comment. (n.3) (stating that “controlled
substance offense” is defined in U.S.S.G. § 4B1.2); Salinas v. United States,
547 U.S. 188, 188 (2006) (concluding that simple possession did not qualify as
a “controlled substance offense” under § 4B1.2(b)). The district court sentenced
Luviano to 24 months in prison for the revocation, which was within the
advisory guidelines range for a Grade A violation but above the range of 12 to
18 months for the Grade B violations that Luviano did commit. Thus, we


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                                  No. 14-10895
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assume that the district court committed clear or obvious error that affected
Luviano’s substantial rights. See United States v. Mudekunye, 646 F.3d 281,
289 (5th Cir. 2011).
      However, a finding that an error affected the defendant’s substantial
rights does not automatically require that we exercise our discretion to correct
that error. See United States v. Escalante-Reyes, 689 F.3d 415, 425 (5th Cir.
2012) (en banc). As the district court noted, Luviano returned to the United
States within 18 months after his most recent removal, thereby committing
the same offense that gave rise to the term of supervised release. See Davis,
602 F.3d at 650-52. Moreover, Luviano committed an additional offense upon
returning to the United States, as was evidenced by his conviction for
possession of heroin.    Further, the 24-month sentence did not exceed the
available statutory maximum. We conclude that affirming the district court’s
sentence would not seriously affect the fairness, integrity, or public reputation
of judicial proceedings. See Puckett, 556 U.S. at 135; Davis, 602 F.3d at 650-
52. Consequently, the judgment of the district court is AFFIRMED.




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