12-40837 | 5th Cir. | Mar 6, 2013
Before STEWART, Chief Judge, and KING and CLEMENT, Circuit Judges. PER CURIAM: [*]
Fausto Ortiz-Cuevas asserts for the first time on appeal that the district court erroneously convicted and sentenced him to 24 months in prison under 8 U.S.C. § 1326(b)(2), which carries a statutory maximum term of imprisonment of 20 years. We agree that Ortiz-Cuevas’s prior New Jersey conviction for assault with a deadly weapon was not an aggravated felony for purposes of subsection (b)(2) because his sentence was less than one year in prison. See 8 U.S.C. § 1101(a)(43)(F); United States v. Mondrago-Santiago , 564 F.3d 357" date_filed="2009-03-26" court="5th Cir." case_name="United States v. Mondragon-Santiago">564 F.3d 357, 368-
Case: 12-40837 Document: 00512165914 Page: 2 Date Filed: 03/06/2013 No. 12-40837 69 (5th Cir. 2009). His conduct in this case violated § 1326(b)(1), which carries a statutory maximum prison term of 10 years. See § 1326(b)(1); Mondragon- Santiago , 564 F.3d 357" date_filed="2009-03-26" court="5th Cir." case_name="United States v. Mondragon-Santiago">564 F.3d at 368-69.
Ortiz-Cuevas contends that the district court’s error in assessing the statutory sentencing range was a factor in the court’s sentencing decision that requires resentencing. However, plain error review applies, and Ortiz-Cuevas cannot meet his burden of proving that the error affected his substantial rights, as he was sentenced well under the 10-year statutory maximum and nothing suggests § 1326(b)(2) was a factor. See Mondragon-Santiago , 564 F.3d at 368-69. Nevertheless, as in Mondragon-Santiago , we “reform the judgment to reflect the correct statutory subsection.” Id. at 369.
AFFIRMED, with the judgment REFORMED to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1). 2
NOTES
[*] Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.