Case: 10-41317 Document: 00511609930 Page: 1 Date Filed: 09/22/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2011
No. 10-41317
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE ALBERTO DE LOS SANTOS-VALLEJO,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:10-CR-572-1
Before REAVLEY, SMITH and PRADO, Circuit Judges.
PER CURIAM:*
After entering a plea agreement, Jose Alberto De Los Santos-Vallejo was
convicted of illegal reentry and was sentenced to 37 months of imprisonment and
two years of supervised release. De Los Santos-Vallejo now appeals the
judgment of the district court and requests that this court order the modification
of his presentence report (PSR), which incorrectly concluded that De Los Santos-
Vallejo’s statutory maximum term of imprisonment was 20 years, implying that
he should be sentenced pursuant to 8 U.S.C. § 1326(b)(2) rather than
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-41317 Document: 00511609930 Page: 2 Date Filed: 09/22/2011
No. 10-41317
§ 1326(b)(1), and of the judgment, which merely cites § 1326(b) in reference to
De Los Santos-Vallejo’s punishment. De Los Santos-Vallejo concedes that he did
not object on these grounds in the district court. The Government agrees that
the judgment should be modified.
Because De Los Santos-Vallejo did not object in the district court, we
review for plain error his argument that the PSR should be modified. A plain
error is a forfeited error that is clear or obvious and affects the defendant’s
substantial rights. United States v. Ellis, 564 F.3d 370, 377 (5th Cir.), cert.
denied, 130 S. Ct. 371 (2009). When those elements are shown, this court has
the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
and citation omitted).
We decline to order the modification of the PSR, as De Los Santos-Vallejo
has not demonstrated that the error therein affects his substantial rights.
However, the judgment is modified to reflect that De Los Santos-Vallejo was
sentenced pursuant to § 1326(b)(1). See United States v. Mondragon-Santiago,
564 F.3d 357, 369 (5th Cir. 2009).
AFFIRMED AS MODIFIED.
2