USA v. Misael Tellez-Solorzano, No. 16-10208 (5th Cir. 2016)

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Case: 16-10208 Document: 00513807933 Page: 1 Date Filed: 12/21/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-10208 Summary Calendar United States Court of Appeals Fifth Circuit FILED December 21, 2016 UNITED STATES OF AMERICA, Plaintiff-Appellee Lyle W. Cayce Clerk v. MISAEL TELLEZ-SOLORZANO, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 3:15-CR-361-1 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 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 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