Case Information
*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 *2 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 Unlike in Mondragon-Santiago , however, Tellez-Solorzano’s deferred adjudication was revoked, and, by the time of Tellez-Solorzano’s 2013 removal, he had been adjudicated guilty of kidnapping and sentenced to a three-year prison term.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.
2
[*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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.