USA v. Abraham Hernandez-Alday

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UNPUBLISHED OPINION FILED. [14-40208 Affirmed & Remanded] Judge: PEH , Judge: EHJ , Judge: SAH Mandate pull date is 01/29/2015 for Appellant Abraham Hernandez-Alday [14-40208]

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Case: 14-40208 Document: 00512894630 Page: 1 Date Filed: 01/08/2015 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 14-40208 Summary Calendar January 8, 2015 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ABRAHAM HERNANDEZ-ALDAY, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 5:13-CR-409-1 Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges. PER CURIAM: * Abraham Hernandez-Alday pleaded guilty to being found unlawfully present in the United States following removal; he received a below-guidelines range sentence of 30 months of imprisonment. The parties agree that, because Hernandez-Alday was sentenced to deferred adjudication for a prior burglary conviction, he was not convicted of an aggravated felony and, thus, the judgment improperly reflects that he was 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 14-40208 Document: 00512894630 Page: 2 Date Filed: 01/08/2015 No. 14-40208 convicted and sentenced under 8 U.S.C. § 1326(b)(2). See United States v. Mondragon-Santiago, 564 F.3d 357, 368 (5th Cir. 2009). Because HernandezAlday’s offense was a § 1326(b)(1) violation rather than a § 1326(b)(2) violation, we REMAND for the limited purpose of reforming the judgment to reflect the proper statute of conviction. See 28 U.S.C. § 2106. In all other respects, the judgment is AFFIRMED. 2

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