   Case: 11-40088       Document: 00511605677         Page: 1     Date Filed: 09/19/2011




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

                                                                            FILED
                                                                        September 19, 2011
                                     No. 11-40088
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

HECTOR CAVAZOS CARREON, Also Known as Hector Carreon Cavazos,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:10-CR-1438-1




Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*


       Hector Cavazos Carreon appeals his conviction of being illegally present
in the United States after having been deported. He argues that his forty-six-

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-40088   Document: 00511605677      Page: 2    Date Filed: 09/19/2011

                                  No. 11-40088

month sentence is substantively unreasonable. Although he acknowledges that
the presumption of reasonableness attaches to his within-guideline sentence, he
contends that he can rebut the presumption because his sentence is greater than
necessary to satisfy the goals of 18 U.S.C. § 3553(a). He maintains that the
sixteen-level increase to his offense level is excessive, given that his burglary
conviction was long ago, in 1990. In support of his argument, he cites extra-
circuit precedent and a proposed 2011 amendment to the guidelines.
      This court reviews the district court’s application of the guidelines de novo
and its findings of fact for clear error. See United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008). “A discretionary sentence imposed within a
properly calculated guidelines range is presumptively reasonable.” United
States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir. 2008). Cavazos Carre-
on’s disagreement with the propriety of his sentence does not rebut the presump-
tion. See United States v. Gomez-Herrera, 523 F.3d 554, 565-66 (5th Cir. 2008);
see also United States v. Willingham, 497 F.3d 541, 544-45 (5th Cir. 2007); Unit-
ed States v. Rodarte-Vasquez, 488 F.3d 316, 322 (5th Cir. 2007). Cavazos Car-
reon’s alternative argument that his sentence is not presumptively reasonable
because U.S.S.G. § 2L1.2 is penologically flawed and not the result of empirical
evidence or study is foreclosed by this court’s precedent. See Mondragon-Santi-
ago, 564 F.3d at 367; United States v. Duarte, 569 F.3d 528, 529-31 (5th Cir.
2009).
      Cavazos Carreon also argues that the district court plainly erred in con-
victing, sentencing, and entering judgment against him under 8 U.S.C. § 1326-
(b)(2), because he was not deported following a conviction for an “aggravated
felony” as defined in 8 U.S.C. § 1101(a)(43). He contends that the sentence
should be vacated and remanded for resentencing or, in the alternative, for refor-
mation of the judgment. The government agrees that the judgment erroneously
reflects a conviction under § 1326(b)(2), but the government states that the
appropriate remedy is for this court to reform the judgment to reflect a convic-

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                                  No. 11-40088

tion under § 1326(b)(1).
      As Cavazos Carreon acknowledges, his claim is reviewed for plain error,
because he did not raise it in the district court. See Mondragon-Santiago, 564
F.3d at 368. The judgment does incorrectly cite to § 1326(b)(2) in light of the fact
that Cavazos Carreon’s burglary-of-a-habitation conviction, for which he received
a sentence of deferred adjudication probation, does not qualify as an “aggravated
felony” for purposes of § 1101(a)(43)(F). See Mondragon-Santiago, 564 F.3d at
369. Cavazos Carreon acknowledges, however, that he cannot show that the
error affected his substantial rights, given that the sentence is within a correctly
calculated guideline range and does not exceed the statutory maximum of
§ 1326(b)(1). See id. Accordingly, the judgment of sentence is AFFIRMED but
REFORMED to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1).




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