United States v. Antonio Saucedo

Case: 15-20608 Document: 00513646400 Page: 1 Date Filed: 08/22/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-20608 United States Court of Appeals

Summary Calendar
Fifth Circuit

FILED
August 22, 2016

UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee

v.

ANTONIO MENDEZ SAUCEDO, also known as Roberto Mendez, also known
as Antonio M. Saucedo,

Defendant-Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CR-279-1

Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
The attorney appointed to represent Antonio Mendez Saucedo has moved
for leave to withdraw and has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th
Cir. 2011). Saucedo has not filed a response. We have reviewed counsel’s brief
and the relevant portions of the record reflected therein. We concur in

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20608 Document: 00513646400 Page: 2 Date Filed: 08/22/2016

No. 15-20608

counsel’s assessment that the appeal presents no nonfrivolous issue for
appellate review.
However, we must address one issue before dismissing this appeal. The
district court’s judgment lists 18 U.S.C. § 1326(b)(2) as the statute under which
Saucedo was convicted and sentenced. This provision deals with illegal reentry
of aliens who have previously been removed subsequent to a conviction for
commission of an aggravated felony. It provides for a 20-year maximum
sentence compared to the 10-year maximum applicable to defendants with a
prior non-aggravated felony conviction. Yet, Saucedo’s prior conviction of a
Texas offense resulted in a sentence of deferred adjudication probation, and
this conviction is therefore not a conviction for an aggravated felony for
purposes of §1326(b)(2). See United States v. Mondragon-Santiago, 564 F.3d
357, 369 (5th Cir. 2009) (holding that an offense for which the defendant was
sentenced to deferred adjudication probation under Texas law is not an
aggravated felony). The district court’s judgment of conviction under
§ 1326(b)(2), to which Saucedo did object below, is therefore plainly erroneous.
Nevertheless, because the record in this case does not indicate that the
district court’s sentence “was influenced by an incorrect understanding of the
statutory maximum sentence,” the error did not affect Saucedo’s substantial
rights and therefore does not merit vacation of his sentence. Mondragon-
Santiago, 564 F.3d at 369. The judgment of the district court is therefore
REFORMED to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1).
See Mondragon-Santiago, 564 F.3d at 367-69. Counsel’s motion for leave to
withdraw is GRANTED, counsel is excused from further responsibilities
herein, and the appeal is DISMISSED. See 5TH CIR. R. 42.2.

2