     Case: 15-40921      Document: 00513370989         Page: 1    Date Filed: 02/05/2016




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

                                    No. 15-40921
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                       February 5, 2016
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk


                                                 Plaintiff-Appellee

v.

FREDY ARMANDO MALDONADO-VILLEDA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:15-CR-145


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
       Fredy Armando Maldonado-Villeda appeals his guilty-plea conviction
and sentence arguing that the district court plainly erred by entering a
judgment reflecting that he was convicted under 8 U.S.C. § 1326(b)(2) when he
did not have a qualifying aggravated-felony conviction. He argues that he
should have been convicted and sentenced under § 1326(b)(1) and urges the
court to vacate his conviction and sentence, reform the judgment to reflect 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-40921     Document: 00513370989      Page: 2   Date Filed: 02/05/2016


                                  No. 15-40921

conviction under § 1326(b)(1), and remand the case for resentencing. In the
alternative, he asks the court to remand the case to the district court for
reformation of the judgment to reflect a conviction under § 1326(b)(1).
      Maldonado-Villeda concedes that our review is limited to plain error
given his failure to raise an objection before the district court. 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). This
court has discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.
      Maldonado-Villeda’s 2010 conviction for third-degree robbery in New
York is not an “aggravated felony” for purposes of § 1326(b)(2) because he was
sentenced to a prison term of less than one year. See 8 U.S.C. § 1101(a)(43)(F),
(G). As such, Maldonado-Villeda should have been convicted and sentenced
under § 1326(b)(1). Consequently, the district court committed a clear or
obvious error when it entered a judgment incorrectly describing the offense of
conviction as one for being an “alien unlawfully found in the United States
after deportation, having previously been convicted of an aggravated felony.”
But as Maldonado-Villeda correctly acknowledges, he cannot show that the
error affected his substantial rights given this court’s decision in United States
v. Mondragon-Santiago, 564 F.3d 357, 369 (5th Cir. 2009).
      As in Mondragon-Santiago, there is no record evidence in this case that
the district court’s incorrect understanding of the statutory maximum affected
its sentence selection. See id. And like the defendant in Mondragon-Santiago,
Maldonado-Villeda’s 41-month sentence is “within a properly calculated
Guidelines range and below the statutory maximum” under § 1326(b)(2). See
id. As such, remand for resentencing is not required. The judgment should be




                                        2
    Case: 15-40921   Document: 00513370989    Page: 3   Date Filed: 02/05/2016


                               No. 15-40921

changed to correctly identify the offense of conviction, and the Government
says we should remand for that limited purpose.
      Maldonado-Villeda’s conviction and sentence are AFFIRMED, but we
REMAND this case to the district court for the limited purpose of correcting
the written judgment to reflect the correct offense of conviction as under
§ 1326(b)(1).




                                     3
