     Case: 10-40889     Document: 00511642305         Page: 1     Date Filed: 10/24/2011




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

                                                                            FILED
                                                                         October 24, 2011
                                     No. 10-40889
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE RIVERA ROSADAO, true name Jose Rivera-Rosado,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 5:10-CR-975-1


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jose Rivera Rosadao appeals from his conviction of illegal reentry after
being deported. He argues that his prior Texas conviction for delivery of a
controlled substance by actual transfer, constructive transfer, and by offering to
sell was not an aggravated felony and that the district court therefore plainly
erred in sentencing him pursuant to 8 U.S.C. § 1326(b)(2), which provides for a
20-year maximum statutory sentence, instead of § 1326(b)(1), which provides for
a 10-year statutory maximum sentence. Though he received only a 41-month

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40889    Document: 00511642305      Page: 2   Date Filed: 10/24/2011

                                  No. 10-40889

sentence, he argues that his case should be remanded for resentencing. He
argues in the alternative for a remand to reform the judgment.
      Because Rivera Rosadao did not challenge being sentenced under
§ 1326(b)(2) in the district court, the question whether the district court erred
in sentencing him under that subsection is reviewed for plain error. Puckett v.
United States, 129 S. Ct. 1423, 1428 (2009). To show plain error, he must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Id. at 1429. If he makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
      As the Government concedes, Rivera Rosadao’s prior Texas conviction for
delivery of a controlled substance by actual transfer, constructive transfer, and
by offering to sell was not an aggravated felony under 8 U.S.C. § 1101(a)(43).
See United States v. Ibarra-Luna, 628 F.3d 712, 715-16 (5th Cir. 2010).
Therefore, it was error to sentence Rivera Rosadao pursuant to § 1326(b)(2).
      The record does not indicate that the district court’s error affected Rivera
Rosadao’s substantial rights.      Accordingly, he has failed to demonstrate
reversible plain error. See United States v. Mondragon-Santiago, 564 F.3d 357,
369 (5th Cir. 2009). However, we modify the judgment to reflect a sentence
under § 1326(b)(1) instead of § 1326(b)(2), and we remand the case to the district
court for the limited purpose of correcting the written judgment to reflect this
modification.
      AFFIRMED AS MODIFIED; LIMITED REMAND FOR CORRECTION OF
JUDGMENT.




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