Case: 10-40100 Document: 00511262752 Page: 1 Date Filed: 10/14/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 14, 2010
No. 10-40100
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ADAN ADALBERTO GARCIA-CAVAZOS,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:09-CR-64-1
Before KING, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Adan Adalberto Garcia-Cavazos (Garcia) appeals from his conviction of
illegal reentry after having been deported. He contends that his Texas
conviction for delivery of cocaine and his second Texas conviction for simple
possession were not aggravated felonies. Therefore, he argues, he was
incorrectly sentenced pursuant to 8 U.S.C. § 1326(b)(2), which carries a 20-year
maximum sentence of imprisonment, instead of under § 1326(b)(1), which carries
a 10-year maximum sentence. He argues that his case should be remanded for
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-40100 Document: 00511262752 Page: 2 Date Filed: 10/14/2010
No. 10-40100
resentencing because the 20-year maximum may have influenced the district
court’s choice of his 37-month sentence.
Garcia did not raise this argument in the district court and our review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, the appellant
must show a forfeited error that is clear or obvious and that affects his
substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the
appellant 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. (internal marks and citation omitted).
The Government concedes that it did not establish that Garcia’s conviction
for delivery of cocaine was an aggravated felony under 8 U.S.C. § 1101(a)(43) and
that under the Supreme Court’s recent decision in Carachuri-Rosendo v. Holder,
130 S. Ct. 2577, 2580 (2010), his second conviction for simple possession was
likewise not an aggravated felony under § 1101(a)(43). Therefore, it was error
to sentence Garcia pursuant to § 1326(b)(2).
The record does not indicate that the district court’s error affected Garcia’s
substantial rights. He has failed to demonstrate reversible plain error. See
Mondragon-Santiago, 564 F.3d at 369. However, we modify the judgment to
reflect a conviction under § 1326(b)(1) instead of § 1326(b)(2), and we remand 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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