Case: 16-10208 Document: 00513807933 Page: 1 Date Filed: 12/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-10208
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 21, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MISAEL TELLEZ-SOLORZANO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:15-CR-361-1
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Misael Tellez-Solorzano appeals the 78-month sentence imposed
following his guilty plea conviction of illegal reentry in violation of 8 U.S.C.
§ 1326. He argues that, because he was originally sentenced to deferred
adjudication for his 2006 Texas kidnapping offense, he does not have a prior
aggravated felony conviction and was, therefore, improperly sentenced under
§ 1326(b)(2). He also argues that, because the indictment failed to charge a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-10208 Document: 00513807933 Page: 2 Date Filed: 12/21/2016
No. 16-10208
prior conviction, his sentence violates the statutory maximum sentence
allowed by § 1326(a). He correctly concedes that this argument is foreclosed
by Almendarez-Torres v. United States, 523 U.S. 224, 235, 239 (1998), but he
raises it to preserve it for further review.
Because Tellez-Solorzano did not object in the district court to the use of
his 2006 kidnapping conviction as a basis for applying § 1326(b)(2), review is
for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361
(5th Cir. 2009). Tellez-Solorzano must show a forfeited error that is clear or
obvious and affects his substantial rights. See Puckett v. United States, 556
U.S. 129, 135 (2009). If he makes such a showing, this court has the discretion
to correct the error, but only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
A term of deferred adjudication probation in Texas does not count as a
term of imprisonment for purposes of § 1326(b)(2). Mondragon-Santiago, 564
F.3d at 368-69. Unlike in Mondragon-Santiago, however, Tellez-Solorzano’s
deferred adjudication was revoked, and, by the time of Tellez-Solorzano’s 2013
removal, he had been adjudicated guilty of kidnapping and sentenced to a
three-year prison term. Therefore, the district court did not commit error,
plain or otherwise, by sentencing him under § 1326(b)(2). See United States v.
Gracia-Cantu, 302 F.3d 308, 311 (5th Cir. 2002).
AFFIRMED.
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