     Case: 10-10446 Document: 00511355422 Page: 1 Date Filed: 01/19/2011




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

                                                 FILED
                                                                          January 19, 2011
                                     No. 10-10446
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOSE CERVANTES-RAMIREZ,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:09-CR-164-1


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Jose Cervantes-Ramirez appeals his sentence imposed following his guilty
plea conviction for being found unlawfully in the United States following his
deportation. Cervantes-Ramirez argues that the district court plainly erred in
relying solely on the presentence report (PSR) in enhancing his offense level by
eight levels for two prior aggravated felony convictions pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C).



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10446 Document: 00511355422 Page: 2 Date Filed: 01/19/2011

                                 No. 10-10446

      The Government has filed a motion to dismiss the appeal or for a summary
affirmance, arguing that Cervantes’s only issue on appeal has been resolved by
this court allowing the Government to supplement the records with documents
showing his prior aggravated felony convictions. The Government asserts that
these documents establish that the enhancement was proper because Cervantes
has been twice convicted of theft and was sentenced to serve sentences of
imprisonment of more than one year for each offense, making the offenses
aggravated felonies.
      Cervantes did not object to the eight-level enhancement in the district
court. Therefore, review is for plain error. See Puckett v. United States, 129 S.
Ct. 1423, 1429 (2009). Cervantes is correct that the district court erred in
relying solely on the PSR as the basis for the enhancement under
§ 2L1.2(b)(1)(C). See United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir.
2005). However, the court has permitted the Government to supplement the
record with relevant documents relating to Cervantes’s prior theft convictions
and reflecting that both convictions resulted in the imposition of a sentence
exceeding one year, with the sentences being suspended. See Shepard v. United
States, 544 U.S. 13, 26 (2005); United States v. Martinez-Vega, 471 F.3d 559, 562
& n.2 (5th Cir. 2006). A theft conviction resulting in a one-year sentence is
categorized as an aggravated felony, even if the sentence is suspended. United
States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999); 8 U.S.C.
§ 1101(a)(48)(B).
      The state court documents, which are now a part of the record, establish
that Cervantes pleaded guilty on two occasions to the offense of theft and that
both convictions resulted in the imposition of a sentence exceeding one year.
Although the district court erred in relying exclusively on the PSR in making the
adjustment, Cervantes has not shown that the error affected his substantial
rights because the record now reflects that he has two prior aggravated felony



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                                 No. 10-10446

convictions that support the eight-level enhancement imposed. Thus, he has
failed to demonstrate plain error. Puckett, 129 S. Ct at 1429.
      The Government’s motion for summary affirmance is GRANTED. The
motion to dismiss the appeal and the motion for an extension of time are
DENIED.
      AFFIRMED.




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