USA v. Victor Jimenez-Lopez, No. 09-40934 (5th Cir. 2010)
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Case: 09-40934 Document: 00511330902 Page: 1 Date Filed: 12/23/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 09-40934 Summary Calendar December 23, 2010 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. VICTOR JAVIER JIMENEZ-LOPEZ, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 2:09-CR-145-1 Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges. PER CURIAM:* Victor Javier Jimenez-Lopez appeals from his conviction for being illegally present in the United States after having been deported. He contends that his prior state conviction for assault with a deadly weapon, although a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), was not an aggravated felony pursuant to 8 U.S.C. § 1101(a)(43)(F). He also argues that his prior state conviction for possession of cocaine was not an aggravated felony because it 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40934 Document: 00511330902 Page: 2 Date Filed: 12/23/2010 No. 09-40934 not prosecuted as a recidivist offense. Although he does not challenge the district court s calculation of the Sentencing Guidelines or its imposition of a sentence of 57 months, he argues that his case should be remanded to allow the district court to correct the judgment to reflect that he was convicted under 8 U.S.C. § 1326(b)(1). Because Jimenez-Lopez did not raise this argument in the district court, we review for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 360-61 (5th Cir.), cert. denied, 130 S. Ct. 192 (2009). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has the discretion to correct the error, but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id. Jimenez-Lopez s prior conviction for assault with a deadly weapon resulted in a sentence of less than one year of imprisonment; thus, it was not an aggravated felony pursuant to § 1101(a)(43)(F). See Mondragon-Santiago, 564 F.3d at 368-69. In addition, in light of the Supreme Court s decision in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), his prior conviction for possession of cocaine does not qualify as an aggravated felony because it was not prosecuted as a recidivist offense. Although the district court erred by sentencing Jimenez-Lopez pursuant to § 1326(b)(2), the record does not indicate that the error affected Jimenez-Lopez s substantial rights. See MondragonSantiago, 564 F.3d at 369. Therefore, he has failed to demonstrate reversible plain error. However, we grant the Government s unopposed motion to reform the judgment of the district court to indicate that Jimenez-Lopez was convicted under § 1326(b)(1). See id. AFFIRMED; MOTION FOR SUMMARY REFORMATION OF THE JUDGMENT GRANTED; ALTERNATIVE MOTION FOR EXTENSION OF TIME TO FILE A BRIEF DENIED. JUDGMENT REFORMED TO INDICATE 2 Case: 09-40934 Document: 00511330902 Page: 3 Date Filed: 12/23/2010 No. 09-40934 THAT JIMENEZ-LOPEZ WAS SENTENCED PURSUANT TO 8 U.S.C. § 1326(b)(1). 3
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