354 F. App'x 133
5th Cir.
2009

Damon Franklin SPENCE, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 09-60102

United States Court of Appeals, Fifth Circuit.

Nov. 17, 2009.

352 Fed. Appx. 133

Summary Calendar.

Damon Franklin Spence, Amityville, NY, pro se.

Remi Adalemo, Andrew Nathan O‘Malley, John Clifford Cunningham, Thomas Ward Hussey, Director, Anthony P. Nicastro, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, E.M. Trominski, District Director, Harlingen, TX, for Respondent.

Before GARWOOD, SMITH and STEWART, Circuit Judges.

PER CURIAM:*

Damon Franklin Spence petitions this court for review of an order by the Board of Immigration Appeals (BIA) affirming the immigration judge‘s (IJ) denial of his application for cancellation of removal and removing him from the United States. Spence argues that his New York state convictions for criminal possession of marijuana do not constitute aggravated felonies that rendered him ineligible for cancellation of removal because he was not prosecuted as a recidivist under New York law. He also argues that under the categorical approach espoused by the Supreme Court in Lopez v. Gonzales, 549 U.S. 47, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006), his convictions of simple possession do not constitute drug trafficking crimes under the Controlled Substances Act (CSA). Spence‘s arguments are foreclosed by our decision in Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir.2009), petition for cert. filed (July 15, 2009) (No. 09-60). Further, his 1998 simple possession conviction was final before his August and December 2007 convictions. Cf. Smith v. Gonzales, 468 F.3d 272, 277-78 (5th Cir. 2006) (discussing New York law; offense not final until one-year period for seeking discretionary review had passed).

Accordingly, Spence‘s petition for review is DENIED.

UNITED STATES of America, Plaintiff-Appellee v. Jose Santos HERNANDEZ-MUNIZ, Defendant-Appellant.

No. 09-40225

United States Court of Appeals, Fifth Circuit.

Nov. 17, 2009.

352 Fed. Appx. 133

Summary Calendar.

James Lee Turner, Assistant U.S. Attorney, Houston, TX, for Plaintiff-Appellee.

Marjorie A. Meyers, Federal Public Defender, Molly E. Odom, Federal Public Defender‘s Office, Southern District of Texas, Houston, TX, for Defendant-Appellant.

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Jose Santos Hernandez-Muniz appeals the 65-month sentence imposed following his guilty plea conviction for transportation of an alien in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(ii). Hernandez-Muniz was sentenced to a concurrent term of 65 months in prison in connection with his guilty plea to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b).

Because Hernandez-Muniz failed to raise his challenge to his sentence before the district court, our review is for plain error. To show plain error, Hernandez-Muniz must show an error that is clear or obvious and that affects his substantial rights. United States v. Baker, 538 F.3d 324, 332 (5th Cir.2008), cert. denied, ___ U.S. ___, 129 S.Ct. 962, 173 L.Ed.2d 153 (2009); see Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266 (2009). If he makes such a showing, we have the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Baker, 538 F.3d at 332.

The maximum term of imprisonment allowed for a violation of § 1324(a)(1)(A)(ii) and (v)(ii) is five years. The presentence report mistakenly stated that the statutory maximum was 10 years of imprisonment. As the Government concedes, Hernandez-Muniz‘s sentence of 65 months of imprisonment for transporting an alien exceeds the 60-month maximum and constitutes plain error that affects his substantial rights and affects the fairness, integrity, and public reputation of the judicial proceedings. See United States v. Coil, 442 F.3d 912, 914 (5th Cir.2006). Accordingly, we modify the term of imprisonment imposed for Hernandez-Muniz‘s conviction for violating § 1324(a)(1)(A)(ii) and (v)(ii) to 60 months. See United States v. De Jesus-Batres, 410 F.3d 154, 164 (5th Cir.2005). The modification does not affect the overall term of imprisonment because Hernandez-Muniz‘s concurrent sentence for his illegal reentry conviction exceeds the modified sentence for his violation of § 1324(a)(1)(A)(ii) and (v)(ii). See id.

MODIFIED IN PART; AFFIRMED AS MODIFIED.

Notes

*
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. 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.