USA v. Adan Garcia-Cavazos

Filing

UNPUBLISHED OPINION FILED. [10-40100 Affirmed ] Judge: CDK , Judge: HRD , Judge: JLD Mandate pull date is 11/04/2010 for Appellant Adan Adalberto Garcia-Cavazos [10-40100]

USA v. Adan Garcia-Cavazos

Doc. 0

Case: 10-40100

Document: 00511262752

Page: 1

Date Filed: 10/14/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-40100 S u m m a r y Calendar October 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t iff - Appellee v. A D A N ADALBERTO GARCIA-CAVAZOS, D e fe n d a n t - Appellant

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 6:09-CR-64-1

B e fo r e KING, DeMOSS, and DENNIS, Circuit Judges. P E R CURIAM:* A d a n Adalberto Garcia-Cavazos (Garcia) appeals from his conviction of ille g a l reentry after having been deported. He contends that his Texas

c o n v ic t io n for delivery of cocaine and his second Texas conviction for simple p o s s e s s io n were not aggravated felonies. Therefore, he argues, he was

in c o r r e c t ly sentenced pursuant to 8 U.S.C. § 1326(b)(2), which carries a 20-year m axim u m 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 10-40100

Document: 00511262752 Page: 2 No. 10-40100

Date Filed: 10/14/2010

r e s e n t e n c in g because the 20-year maximum may have influenced the district c o u r t's choice of his 37-month sentence. G a r c ia did not raise this argument in the district court and our review is fo r plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5 t h Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, the appellant m u s t show a forfeited error that is clear or obvious and that affects his s u b s t a n t ia l rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the a p p e lla n t makes such a showing, this court has the discretion to correct the e r r o r , but only if it "seriously affects the fairness, integrity, or public reputation o f judicial proceedings." Id. (internal marks and citation omitted). T h e Government concedes that it did not establish that Garcia's conviction fo r delivery of cocaine was an aggravated felony under 8 U.S.C. § 1101(a)(43) and t h a t under the Supreme Court's recent decision in Carachuri-Rosendo v. Holder, 1 3 0 S. Ct. 2577, 2580 (2010), his second conviction for simple possession was lik e w is e not an aggravated felony under § 1101(a)(43). Therefore, it was error t o sentence Garcia pursuant to § 1326(b)(2). T h e record does not indicate that the district court's error affected Garcia's s u b s t a n t ia l rights. He has failed to demonstrate reversible plain error. See M o n d r a g o n -S a n tia g o , 564 F.3d at 369. However, we modify the judgment to r e fle c t a conviction under § 1326(b)(1) instead of § 1326(b)(2), and we remand to t h e district court for the limited purpose of correcting the written judgment to r e fle c t this modification. A F F IR M E D AS MODIFIED; LIMITED REMAND FOR CORRECTION OF JU DG M E N T.

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